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Court of AppealPartially AllowedCivil Appeal E317 of 2026

Sintecnica Engineering S.R.L In Joint Venture With Steam S.R.L v Accounting Officer, Kenya Electricity Generating Company PLC (KENGEN) & 4 others (Civil Appeal E317 of 2026) (26 June 2026) (Reasons) [2026] KECA 1214 (KLR)

Court of Appeal
26 June 2026
10,513 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~42 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal restored the Procurement Review Board's power to question KENGEN's tender termination, confirming courts must not do their own evidence-gathering.

What this practically means

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Executive summary

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This is the Court of Appeal's reserved reasons for its judgment of 29th May 2026 allowing the appeal of Sintecnica Engineering S.R.L (in joint venture with Steam S.R.L) against Aburili, J.'s judicial review decision of 9th April 2026, which had quashed a decision of the Public Procurement Administrative Review Board. The dispute concerned Tender No. KGN-BDD-016-2024 for consultancy services on the Olkaria VII Geothermal Power Project, financed under the European Investment Bank's procurement framework, which required a Letter of No Objection as a condition precedent. KENGEN terminated the procurement citing the Bank's refusal of a No Objection letter and inadequate budgetary provision; the Board cancelled the termination and directed completion of the procurement, and the High Court quashed that decision. The Court of Appeal distilled two issues: the Board's jurisdiction and the merit of the appeal. It held that the Board was properly clothed with jurisdiction, since its jurisdiction is divested only where a termination complies with section 63 of the Public Procurement and Asset Disposal Act, and examining the Bank's refusal was unavoidable in assessing that compliance. The cross-appeal failed. On the merits, the Court deferred to the specialised Board, held that it properly evaluated whether the procuring entity met the substantive and procedural requirements of section 63, and found reversible error in the High Court Judge's resolution of the contested section 63(2) and (3) reporting issue by independently searching the Public Procurement Information Portal online, which descended into the arena and left the statutory timeline unexamined. The appeal was allowed, the High Court judgment set aside, the judicial review application dismissed, and each party ordered to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the 5th respondent (Public Procurement Administrative Review Board) had the requisite jurisdiction to hear and determine Request for Review No. 18 of 2026
  2. 2.Whether the appeal against the High Court's judgment quashing the Review Board's decision should be allowed

Key legal issues

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01

Jurisdiction of the Review Board over a termination of procurement proceedings said to be justified by a financier's refusal of a No Objection letter

Holding

The Board had jurisdiction. Its jurisdiction is divested only where termination under section 63 was lawful; it could properly examine the financier's refusal insofar as it was necessary to determine whether the termination complied with section 63.

Reasoning

The Board's jurisdiction under sections 28 and 167(4)(b) of the Act is ousted only where termination of procurement proceedings was carried out in accordance with section 63. Determining lawfulness of termination required examining the refusal to issue a No Objection letter, which was the crux of the dispute. The Board did not thereby review the Bank's internal complaints architecture. The cross-appeal was therefore without substance.

p. 14
02

Whether the High Court erred in quashing the Board's decision

Holding

The High Court erred. The Board properly acted within its statutory mandate in evaluating compliance with section 63, and the Judge's finding that the statutory report had been uploaded, based on her own online search, was reversible error.

Reasoning

The record showed the Board had no evidence of compliance with section 63(2) and (3); the burden of demonstrating compliance within the stipulated timelines lay on the procuring entity. The Judge's suo motu online verification of portal submission on a contentious issue descended into the arena and left unanswered whether compliance occurred within the statutorily ordained timeline. Deference owed to the specialised Board was not maintained.

p. 18

Legal principles established

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  • Specialised statutory tribunals such as the Public Procurement Administrative Review Board, being better equipped than the High Court to handle procurement disputes, should not be lightly interfered with in matters within their jurisdiction; judicial review remains supervisory and concerned with legality, not merits
  • A procuring entity terminating procurement proceedings must demonstrate compliance with both the substantive and procedural requirements of section 63 of the Public Procurement and Asset Disposal Act, including the written report to the Authority under section 63(2) and (3); mere assertion of grounds does not suffice
  • A superior court exercising judicial review may not itself source evidence on a contested compliance issue; a judge cannot resolve a contentious evidentiary matter by independent inquiry outside the record

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment of the High Court (Aburili, J.) dated 9th April 2026 set aside and substituted with an order dismissing Judicial Review Application No. E049 of 2026
  3. 3.Cross-appeal dismissed as without substance
  4. 4.Each party to bear their own costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Milimani
JR Application No. E049 of 2026
Jurisdiction invoked
First appellate jurisdiction over the High Court's judicial review decision under section 175 of the Public Procurement and Asset Disposal Act

Relief refused

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Cross-appeal by the 1st and 2nd respondents challenging the Board's jurisdiction

The Board was clothed with jurisdiction to determine the request for review and properly exercised it; discussing the financier's refusal of a No Objection letter was necessary to determine compliance with section 63

p. 14

Costs

Each party to bear their own costs of the appeal

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

By our judgment delivered on 29th May, 2026, we allowed the appeal herein, set aside the judgment of the High Court (Aburili, J.) dated 9th April 2026, and substituted therefor an order dismissing Judicial Review Application No. E049 of 2026, with each party bearing own costs of the appeal.
p. 1Final orders and disposition
It is for these reasons that we allowed the appeal with each party bearing own costs of the appeal. Conversely the cross-appeal failed by necessary force.
p. 18Disposition and costs
We hold the view that the 5th respondent was clothed with the requisite jurisdiction to determine the request for review and it properly exercised that jurisdiction.
p. 14Jurisdiction of the Review Board
That error invites this Court’s reversal.
p. 18Appellate interference with the High Court judgment
It is trite that specialised bodies should not be interfered with in exercise of statutory mandate and the court will only exercise its supervisory role over them if the decision or administrative action is tainted with illegality, irrationality or procedural impropriety.
p. 15Deference to specialised tribunals in judicial review

Issues in the judgment

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minor

The judgment is styled 'Reasons' and records that the substantive orders were made in an earlier judgment of 29th May 2026 which is not before the court; the disposition here restates those orders

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Sintecnica Engineering S.R.L In Joint Venture With Steam S.R.L v Accounting Officer, Kenya Electricity Generating Company PLC (KENGEN) & 4 others (Civil Appeal E317 of 2026)  (26 June 2026) (Reasons) [2026] KECA 1214 (KLR)", Case Analysis (2026). Civil Appeal E317 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1214/eng@2026-06-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.