Keller Kustoms Kenya Ltd v Public Procurement Administrative Board & 3 others
The bottom line
#Supreme Court dismissed bid to appeal procurement case, ruling issues were not of general public importance.
What this practically means
#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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal raises matters of general public importance warranting certification under Article 163(4)(b) of the Constitution.
- 2.Whether the Court of Appeal erred in declining to certify the intended appeal.
Key legal issues
#Whether the intended appeal raises matters of general public importance for certification under Article 163(4)(b) of the Constitution.
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.
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
#- 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
#- 1.The Originating Motion dated 25th February 2026 and filed on 26th February 2026 is hereby dismissed.
- 2.The Ruling of the Court of Appeal delivered on 13th February 2026 denying leave to appeal to this Court is hereby upheld.
- 3.The costs of this application shall be borne by the applicant.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- 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
#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
#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.
The Ruling of the Court of Appeal delivered on 13th February 2026 denying leave to appeal to this Court is hereby upheld.
The costs of this application shall be borne by the applicant.
we find that the applicant has not satisfied the now firmly established test for certification under Article 163(4)(b) of the Constitution.
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.
Key timeline
#Practical implications
#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.
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.
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
#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
#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.