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Supreme CourtDismissedApplication E008 of 2026

Keller Kustoms Kenya Ltd v Public Procurement Administrative Board & 3 others

Supreme Court of Kenya
19 June 2026
1,937 words in judgment
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AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Supreme Court dismissed bid to appeal procurement case, ruling issues were not of general public importance.

What this practically means

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The Supreme Court dismissed a request to appeal a procurement dispute. The applicant lost a tender case at Kenya Ports Authority, and lower courts ruled against her. She needed the Supreme Court’s permission to appeal, but had to show the case affects the public broadly. The Court found she did not meet that high bar, and one key issue had not been raised in earlier courts. The Court of Appeal’s refusal to allow the appeal was therefore upheld.

Executive summary

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The applicant, Jane Mombi Abeid, sought review of a Court of Appeal ruling that declined to certify her intended appeal to the Supreme Court as a matter of general public importance under Article 163(4)(b) of the Constitution. The dispute arose from a public procurement tender award by Kenya Ports Authority. The Public Procurement Administrative Review Board had struck out the applicant's Request for Review for failure to enjoin the accounting officer as required by Section 170(b) of the Public Procurement and Asset Disposal Act. The High Court dismissed the applicant's judicial review application, and the Court of Appeal upheld that decision. The applicant then sought to appeal to the Supreme Court, but the Court of Appeal denied certification. In the present application, the Supreme Court applied the principles from Steyn v Ruscone and Bell v Moi, requiring that the proposed issues transcend the particular case, bear on public interest, raise a substantial point of law, and have been determined by the courts below. The Court found that the applicant failed to demonstrate that the issues transcended the circumstances of the case or that there was uncertainty in the law. Critically, the question of inconsistency between the prescribed Form in the Fourteenth Schedule to the Regulations and Section 170(b) of the Act had not been litigated in the courts below and could not be raised for the first time before the Supreme Court. The other issues were settled by the superior courts. The Court dismissed the application, upheld the Court of Appeal's ruling, and ordered the applicant to bear the 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 intended appeal raises matters of general public importance warranting certification under Article 163(4)(b) of the Constitution.
  2. 2.Whether the Court of Appeal erred in declining to certify the intended appeal.

Key legal issues

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01

Whether the intended appeal raises matters of general public importance for certification under Article 163(4)(b) of the Constitution.

Holding

The applicant failed to demonstrate that the proposed issues transcend the circumstances of the case or that there is uncertainty in the law; one key issue was not litigated below and cannot be raised for the first time before the Supreme Court.

Reasoning

The Supreme Court applied the principles from Steyn v Ruscone and Bell v Moi, requiring that the issue transcend the particular case, bear on public interest, be a substantial point of law, and have been determined by the courts below. The Court found that the applicant did not show that the issues had a significant bearing on public interest or that contradictory precedents created uncertainty. The question of inconsistency between the prescribed Form and Section 170(b) of the PPADA was not raised in the High Court or Court of Appeal and therefore could not be introduced at the Supreme Court. The other issues, such as the requirement to name the accounting officer, were settled by the superior courts.

Legal principles established

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  • For certification as a matter of general public importance, the issue must transcend the case and bear significant public interest.
  • A question not raised and determined by lower courts cannot be introduced for the first time at the Supreme Court.
  • The intending appellant must demonstrate uncertainty in the law due to contradictory precedents.
  • The burden is on the applicant to satisfy the Court of all certification criteria.
  • The Supreme Court will not interfere with the Court of Appeal’s discretion on certification unless an error in principle is shown.

Court orders

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  1. 1.The Originating Motion dated 25th February 2026 and filed on 26th February 2026 is hereby dismissed.
  2. 2.The Ruling of the Court of Appeal delivered on 13th February 2026 denying leave to appeal to this Court is hereby upheld.
  3. 3.The costs of this application shall be borne by the applicant.

The bench

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

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority

Wrote the judgment

Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeal No. E001 of 2025
Jurisdiction invoked
Article 163(4)(b) & (5) of the Constitution, and Rule 33 of the Supreme Court Rules

Relief refused

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Review of the Court of Appeal's ruling denying certification

The applicant did not satisfy the test for certification under Article 163(4)(b) of the Constitution.

Certification of the intended appeal as a matter of general public importance

The issues raised either were not litigated below or are settled law.

Costs

The costs of this application shall be borne by the applicant.

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.

The Originating Motion dated 25th February 2026 and filed on 26th February 2026 is hereby dismissed.
p. 4 Disposition of the application
The Ruling of the Court of Appeal delivered on 13th February 2026 denying leave to appeal to this Court is hereby upheld.
p. 4 Affirmation of the Court of Appeal ruling
The costs of this application shall be borne by the applicant.
p. 5 Costs order
we find that the applicant has not satisfied the now firmly established test for certification under Article 163(4)(b) of the Constitution.
p. 4 Failure to meet certification threshold
The question regarding the alleged inconsistency between the prescribed Form in the Fourteenth Schedule to the Public Procurement and Asset Disposal Regulations and Section 170(b) of the Public Procurement and Asset Disposal Act was not the subject of judicial determination before the superior courts below.
p. 4 New issue cannot be raised on appeal

Key timeline

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Unknown date
Kenya Ports Authority awards tender; dispute arises.
Unknown date
Public Procurement Administrative Review Board strikes out Request for Review for failure to enjoin accounting officer.
Unknown date
High Court dismisses judicial review application.
Unknown date
Court of Appeal upholds High Court decision.
2026-02-13
Court of Appeal denies certification for appeal to Supreme Court.
2026-02-26
Applicant files Originating Motion at Supreme Court seeking review of certification ruling.
Unknown date
Supreme Court dismisses application and upholds Court of Appeal ruling.

Practical implications

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For lawyers

Raise all issues in lower courts

When preparing a procurement appeal, ensure every legal question you intend to raise on appeal is fully argued and determined in the High Court and Court of Appeal. The Supreme Court will not consider new arguments introduced for the first time at the certification stage. This case underscores the importance of a complete record at every level.

For businesses

Comply with procurement naming rules

If you challenge a public procurement decision, you must correctly name the accounting officer of the procuring entity. Failure to do so can lead to your case being struck out. Verify the required parties before filing a Request for Review with the Public Procurement Administrative Review Board to avoid procedural dismissal.

For individuals

High bar for Supreme Court appeals

Individuals seeking to appeal procurement cases to the Supreme Court must show that the issues go beyond their own dispute and affect the general public. The Court will not hear appeals that only involve personal grievances. Be prepared to demonstrate broad public interest and conflicting lower court decisions.

Frequently asked questions

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What is a matter of general public importance in Kenya?+

It is a legal issue that affects the public beyond the parties in a case. To appeal to the Supreme Court, you must show the issue has significant public interest, raises a substantial point of law, and was decided by lower courts. The Supreme Court sets a high bar.

Can I appeal a procurement decision to the Supreme Court in Kenya?+

Only if the Court of Appeal first certifies the case as involving a matter of general public importance. If certification is denied, you can ask the Supreme Court to review that denial, but you must demonstrate that the issues transcend your case and affect the public broadly.

What is the requirement to name an accounting officer in procurement cases in Kenya?+

Under Section 170(b) of the Public Procurement and Asset Disposal Act, a Request for Review must name the accounting officer of the procuring entity. Failure to do so can lead to the request being struck out, as happened in this case.

How do I get certification to appeal to the Supreme Court in Kenya?+

First, apply to the Court of Appeal for certification that your intended appeal raises a matter of general public importance. If that is refused, you may file an originating motion at the Supreme Court seeking review. You must show the issue transcends your case, affects public interest, and involves a substantial point of law.

Cite this brief

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Cite this brief

Caselaw, "Keller Kustoms Kenya Ltd v Public Procurement Administrative Board & 3 others", Case Analysis (2026). Application E008 of 2026. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2026/48/eng@2026-06-19

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