The Gardens & Wedding Centre Ltd v The Accounting Officer, County Government of Nakuru, Department of Health Services & 3 Others

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Sergon, J. Application on 13th No. August E003 of 2026 in Miscellaneous 2026, The Accounting Officer, County Government of Nakuru, Department of Health Services & Another vs. Public Procurement Administrative Review Board & Another and The Gardens & Wedding Centre Ltd & Delki Supplies and General Services (Interested Parties). 2. In the said decision, we allowed the appellant’s appeal in its entirety, and set aside the ruling delivered by Sergon, J. on 13th August 2026 in its entirety in which he dismissed the appellant’s preliminary objection. We substituted the said ruling with an order that the High Court lacked jurisdiction to hear and determine the 1st and 2nd respondents’ judicial review application dated 28th May 2026 beyond the 45 days prescribed by the Public Procurement & Asset Disposal Act (PPAD Act). We also ordered the 1st and 2nd respondents to bear the costs of this appeal. 3. Pursuant to the said rule, we hereby communicate our reasons for our decision. When a court issues a brief "short form" order or "extempore" decision at the close of a hearing under Rule 34 (1), it subsequently releases its Page 3 of 24

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"Reasons for Decision". (See United Democratic Alliance Party vs. Kenya Human Page 4 of 24

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Rights Commission & 8 Others (Civil Application E288 of 2022) [2022] KECA 813 (KLR) (8 August 2022) (Ruling). The reasons for deciding a matter in this statutory manner are governed by three primary pillars: (a) The court invokes Rule 34 (1) to issue immediate decisions when time is of the essence, such as in matters with high public interest, statutory or constitutional timelines, or looming electoral dates. In such cases, the Court renders its decision on the spot to provide immediate remedy (e.g., granting or denying a stay of execution), while reserving the extensive constitutional and legal reasoning for a later date. This enables the Court to strike a balance between Judicial Urgency versus Full Jurisprudential Analysis. (b) Rule 34 (1) establishes strict judicial accountability by requiring that any reserved judgment or ruling must be delivered within 120 days from the close of the hearing unless compelling reasons are formally recorded. Combined with Rule 34 (2), the absolute maximum time a decision can be deferred is 180 days. The "Reasons for Decision" document serves as the formal fulfilment of this statutory timeline, ensuring Page 5 of 24

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that parties are not left in legal limbo indefinitely. (c) The third pillar is what is called “Evidentiary Justification of the Direct Order.” Because the Page 6 of 24

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initial decision is rendered "on the spot" or in short form, the subsequent formal reasons must comprehensively justify the Court's stance based on established legal tests. In an appeal, the reasons detail the formal re-appraisal of evidence and show whether the court below committed a material misdirection. This is simply what we shall venture into below. 4. This appeal was triggered by a protracted procurement dispute concerning Tender No. CGN/MOH/ONT/021/20252026 for the Provision of Comprehensive Cleaning and Gardening Services floated by the County Government of Nakuru, Department of Health Services (the Procuring Entity). However, the procurement process was mired in successive litigation before the Public Procurement Administrative Review Board (the Board). A brief history of this protracted litigation is useful. a) On 23rd February 2026, one of the bidders, Linstar Ventures Limited, filed a Request for Review No. 25 of 2026 challenging the evaluation of its bid. The Board delivered its decision on 16 th March 2026. It nullified the notification letters of 10th February 2026, ordered the re-admission of certain bids (including that of the appellant) for re-evaluation at the Technical Evaluation stage, and directed that the re-evaluation and conclusion of the procurement process be Page 7 of 24

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completed within 30 days from the date of the decision. Critically, the Procuring Entity (the 1 st and 2nd respondents herein) did not file any judicial review Page 8 of 24

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application against this decision. By operation of Section 175 (1) of the Public Procurement and Asset Disposal Act, 2015 (PPAD Act), the decision of the Board became final and binding. b) The Procuring Entity failed to comply with the orders of the Board issued on 16th March 2026. Instead, on 1st April 2026, it purported to terminate the procurement proceedings under Section 63 (1) of the PPAD Act on grounds of inadequate budgetary provision. Aggrieved, the appellant filed Request for Review No. 58 of 2026 on 22nd April 2026, seeking declarations that the Procuring Entity was in non-compliance with the Board's earlier orders and an order compelling compliance. c) The Board delivered its decision on 13 th May 2026. It found that the purported termination was unlawful, as it was not done in accordance with Section 63 of the PPAD Act. It set aside the termination letters, directed the Procuring Entity to comply with the orders in Review No. 25 of 2026 and conclude the procurement process within twenty-one (21) days and awarded costs against the Procuring Entity. d) Aggrieved by the Board's decision of 13th May 2026, the Procuring Entity (the 1st and 2nd respondents) moved to the High Court at Nakuru HCJR Misc. App. No. E003 of 2026 by way of an ex parte Chamber Summons dated 18th May 2026 seeking leave to institute judicial review proceedings. Leave was granted on 26th May 2026. The court's directions of the same date required the Procuring Entity to file the substantive Notice of Motion within five (5) days, and fixed the matter for mention on 28 th July 2026 for purposes of confirming compliance and fixing a judgment date. 5. The Procuring Entity filed its substantive notice of motion dated 28th May 2026 on 1st June 2026. On 26th July 2026, the Page 9 of 24

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appellant filed a notice of preliminary objection contesting the Page 10 of 24

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jurisdiction of the High Court to hear and determine the substantive application. The appellant argued that by virtue of Section 175 (3) and (5) of the PPAD Act, the High Court was required to determine the judicial review application within 45 days of its filing, failing which the decision of the Board would become final and binding and the court's jurisdiction would lapse. It was submitted that by the time the preliminary objection was filed, over 55 days had lapsed since the filing of the substantive application and the 45-day window had lapsed on 16th July 2026. 6. In the impugned ruling delivered on 13th August 2026, the High Court (Sergon, J.) dismissed the appellant's preliminary objection. The learned judge held that the delay in determining the application beyond the 45-day period was occasioned by the court's own case management diary as the court itself had fixed the mention date for 28th July 2026, which fell outside the statutory window. Relying on an exception recognized by Ngaah, J. in Erdemann Properties Limited vs. Public Procurement Administrative Review Board & Another [2022] KEHC 18059 (KLR), the learned judge held that where the delay is beyond the control of the court Page 11 of 24

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and the parties, Page 12 of 24

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Section 175 should not be interpreted to render the court helpless. The court found that the Procuring Entity was blameless as they had complied with all timelines set by the court. The judge further invoked the principle in the Martha Karua case (as discussed in Kenya Ports Authority vs. PPARB [2024] KECA 1099 (KLR)) and Article 48 of the Constitution on access to justice, concluding that the court retained the power to deliver its decision despite the lapse of time. It is this ruling that is the subject of this appeal. 7. The appellant has raised five grounds of appeal in its memorandum of appeal dated 18th August 2026. In summation, the appellant faults the learned judge for: (a) Finding that the High Court had jurisdiction to hear and determine the Judicial Review application after the lapse of the statutory 45 days provided for under Section 175 (3) of the PPAD Act, (b) Misapprehending the law under Section 175 of the PPAD Act, (c) ignoring binding precedent from the Court of Appeal on the interpretation of Section 175 of the PPAD Act. (d) Finding the appellant had raised the preliminary objection late and that it had acquiesced to the court's Page 13 of 24

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timetable, and Page 14 of 24

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that the judge had treated the appellant's submissions superficially (grounds 4 & 5). 8. During the hearing of this appeal on 30 th September 2026, learned Counsel Mr. Mogire appeared for the appellant while learned counsel Mr. Jacob Ngwele appeared for the respondents. The 3rd and 4th respondents did not attend Court despite having been duly served nor did they file any submissions or participate in the proceedings. 9. Mr. Mogire relied on his written submissions dated 20 th September 2026 which he briefly highlighted. The gravamen of the appellant’s appeal is that by the time the High Court delivered its decision, 73 days had lapsed from 1st June 2026 when the substantive application was filed. Counsel maintained that to step out of time is to step out of jurisdiction and any act or decision outside jurisdiction is, by application of first principles a nullity. In support of this assertion counsel cited this Court’s decision in Aprim Consultants vs. Parliamentary Service Commission & Another [2021] KECA 1090 (KLR). To further buttress his submissions. Mr. Mogire cited this Court’s decision in Al Ghurair Printing Page 15 of 24

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and Page 16 of 24

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Publishing LLC vs. Coalition for Reforms and Democracy & 2 Others [2017] eKLR, (Gatembu, JA) that: “[136] Section 175 of the Act as a whole provides for an elaborate time bound process for escalating the dispute from the Review Board (which must complete its review within 21 days after receiving the request), to seeking judicial review to the High Court (which must be done within 14 days from the date of the decision of the Review Board); to the High Court (which has 45 days after such application to make its decision). A person aggrieved by the decision of High Court may appeal to the Court of Appeal within 7 days of the High Court decision. The Court of appeal shall make a decision within 45 days which decision shall be final. [137] The importance of the timelines is buttressed by Section 175 (5), which provides that the decision of the Review Board shall be final and binding to all the parties should the High Court or the Court of Appeal fail to make a decision within the prescribed timelines. 10. Mr. Mogire also cited Risk Africa Innovatis Limited vs. Smartmatic International Holdings B.V.A & 3 others (Civil Appeal (Application) E008 of 2022) [2022] KECA 427 (KLR) (4 March 2022) (Ruling) in support of the proposition that the issue of the timelines provided for under Section 175 is not novel to Court. Page 17 of 24

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11. Counsel faulted the trial court’s finding that appellant acquiesced to the Court's timetable of hearing the judicial Page 18 of 24

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review application outside the statutory 45 days on grounds that the said finding is not supported by the record. Further, even if that was correct, there cannot be acquiesce in violation of the law and an express statutory provision for that matter. 12. Learned Counsel Mr. Jacob Ngwele relied on his written submissions dated 24th September 2026 in opposing the appeal, which he highlighted briefly. Counsel questioned the appellant’s locus standi in the suit arguing that before the trial court, the appellant was only an interested party, therefore, it lacked direct legal interest in the proceedings. Further, the Court of Appeal requires a concrete, adverse legal interest to appeal, none is demonstrated in this case. Counsel maintained that the appellant’s participation was procedural, not substantive, thus, no locus standi exits. To buttress his submission, counsel relied on the decision in Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR and Communications Authority of Kenya vs. MTN Business Kenya Limited & 7 Others [2022] KECA 641 (KLR). Page 19 of 24

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13. Regarding the procedural timelines, counsel maintained that the 1st and 2nd respondents filed their application within the Page 20 of 24

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statutory timeline, but the trial court issued timelines outside the 45 days. It was his submission that the delay was caused by the court, which is a valid exception for failing to conclude the proceedings within the 45 days. Counsel argued that the court admits exceptions to strict statutory timelines where constitutional rights or justice so demands. To buttress this assertion, counsel cited Erderman Properties Limited vs. Public Procurement Administrative Review Board & Another (Application 132 of 2020) [2022] KEHC 18059 (KLR) which he argued supports exceptions to the general position. He also cited Kenya Ports Authority vs. Public Procurement Administrative Review Board & 2 Others (Civil Appeal 347 of 2017) {2024] KECA 1099 (KLR) and distinguished Consultants the decision in Aprim vs. Parliamentary Service Commission & Another (Supra) urging that the said decision did not address the situations caused by the court. Counsel also distinguished the decision in Risk Africa Page 21 of 24 Innovatis Limited vs.

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Smartmsatic International Holdings BVA & 3 Others, [2022] ECA 427 (KLR) citing factual difference in the instant case. Page 22 of 24

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14. Further, counsel argued that the court can depart from stare decisis if constitutional rights are at stake and underscored the importance of hearing substantive judicial review cases. He cited Kenya Airways Limited vs. Africa Spirits Limited & 2 Others (Civil Appeal N. 29 of 2004) [2004] eKLR and urged this Court to dismiss this appeal. Lastly, counsel cited Jasnbir Singh Rai & 3 Others vs. Tarlochan Singh Rai & 4 Others [2013] eKLR to urge that a court can depart from a precedent if it conflicts with the constitution. 15. First, we will address Mr. Ngwele’s argument that the appellant lacks the locus standi to mount this appeal. Notably, while urging this ground, counsel relied heavily on the decisions in Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR and Communications Authority of Kenya vs. MTN Business Kenya Limited & 7 Others [2022] KECA 641 (KLR), foundational decisions which defined the test for admitting an interested party in court proceeding, which is irrelevant Page 23 of 24

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to the case before us. As was observed in State of Orissa vs. Sudhansu Sekhar Misra & Ors., AIR 1968 SC 647: “A decision is only an authority for what it actually decides. What is of the essence in a Page 24 of 24

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decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. ...a case is only an authority for what it actually decides " 16. The ratio of any decision must be understood in the context of the background facts of the particular case. A case is only an authority for what it actually decides and not what logically follows from it. It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. 17. Undeniably, each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In citing precedents, one should avoid the temptation to decide cases by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. Precedent should be followed only so far as it marks the path of justice. The Page 25 of 24

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decisions relied upon by the Page 26 of 24

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respondents’ counsel relate to a totally difference scenario. The decisions speak to a situation whereby a party who is not a party to the proceedings applies to the court to be enjoined in the case. The courts in the decisions cited by the respondents’ counsel clearly laid down the threshold for admission of an interested party in court proceedings. That is not the case here. 18. In the appeal before us the appellant was a tenderer in the procurement process. It was a party before the Review Board and before the High Court. A tenderer in a procurement process who was a party before the Review Board and was formally named as an Interested Party before the High Court possesses the requisite locus standi to file an appeal in the Court of Appeal against the High Court's decision. The Court of Appeal Rules, 2022 explicitly preserve the right of appeal for individuals who were parties to the original suit. Section 170 of the PPAD Act outlines who can be recognized as a party to a review, which includes the applicant, the accounting officer, the successful tenderer, and "such other persons as the Review Board may determine." In any event, once a tenderer is admitted as an interested party at the Board level and Page 27 of 24

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subsequently in the High Court Judicial Review proceedings, they are no longer strangers to the suit; they are active litigants with an independent right to protect their stakes. (See M/s Joint Venture of Zamara Actuaries, Administrators and Consultants Limited and Minet Kenya Financial Services Limited vs. CPF Financial Services Limited; Public Procurement Administrative Review Board & 2 Others (Interested Parties) (Civil Appeal E509 of 2022) [2022] KECA 983 (KLR) (9 September 2022) (Judgment)). 19. To successfully maintain the appeal, the appellant is only required to demonstrate that he is a "person aggrieved" under Section 175 of the PPAD Act. Because they are a "tenderer" (an active participant in the procurement process), any High Court decision that alters the tender outcome, cancels an award, or orders a re-evaluation directly influences their commercial interests, liability or risk of suffering financial loss. This direct nexus fulfils the primary requirement for locus standi at the appellate stage. Therefore, the respondent’s argument that the appellant Page 28 of 24

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lacks the locus standi to mount this appeal is legally frail and untenantable. Page 29 of 24

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20. We will now address the germane issue in this appeal, which is whether the High Court had jurisdiction to hear and determine the substantive judicial review application after the lapse of the mandatory 45-day period prescribed by Section 175 (3) of the PPADA which provides as follows: “175. Right to judicial review to procurement 1. A person aggrieved by a decision made by the Review Board may seek judicial review by the High Court within fourteen days from the date of the Review Board's decision, failure to which the decision of the Review Board shall be final and binding to both parties. 2. The application for a judicial review shall be accepted only after the aggrieved party pays a percentage of the contract value as security fee as shall be prescribed in Regulations. 3. The High Court shall determine the judicial review application within forty-five days after such application. 4. A person aggrieved by the decision of the High Court may appeal to the Court of Appeal within seven days of such decision and the Court of Appeal shall make a decision within forty-five days which decision shall be final. 5. If either the High Court or the Court of Appeal fails to make a decision within the prescribed timeline under subsection (3) or (4), the decision of the Review Board shall be final and binding to all parties.” 21. This Court has firmly established through its numerous Page 30 of 24

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foundational decisions that the timelines set out under the above section are mandatory, non-extendable and Page 31 of 24

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jurisdictional. This Court recognizes its authority and that of the High Court under this section as a "time-bound jurisdiction" that automatically ceases by the effluxion of time once the statutory clock run out. Any decision rendered or application filed outside these windows is considered a structural nullity. 22. Under Section 175, the High Court is required to hear and determine a judicial review application challenging a Public Procurement Administrative Review Board decision within 45 days. In Arprim Consultants vs. Parliamentary Service Commission & Another (supra), this Court held that the 45- day window is an absolute boundary of judicial power. The Court stated that the High Court's jurisdiction exists strictly within this window and is extinguished the moment the 45 days end. Any judgment returned after the 45-day threshold is an absolute nullity, bereft of any force or effect in law. 23. This Court in The Consortium of TSK Electronica Y Electricdad S.A. & Ansaldoenergia vs. PPARB & 3 Others (Civil Appeal No. E012 of 2022) (un reported), Page 32 of 24

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underscored that these timelines are "cast in stone" and completely immune to judicial variation. The strict frames signal a deliberate Page 33 of 24

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legislative intent to bypass ordinary litigation delays to avoid stalling critical public infrastructure projects. 24. Section 175 has been described as absolute ouster of discretion. In Kenya Ports Authority & Another vs. Kalmar Finland OY & 2 Others [2026] KECA 1459, a recent ruling, this Court addressed an appeal filed just one day after the 7- day statutory window had elapsed due to delays in securing certified court proceedings. The Court struck out the appeal, reinforcing that the timeline under Section 175 (4) is strictly jurisdictional. The Court lacks any inherent discretion under the Court of Appeal Rules to extend, enlarge or abridge the timeframe, meaning filing late automatically ousts the court's competence. 25. In Principal Secretary/Accounting Officer Ministry of Defence & Another vs. Public Procurement Administrative Review Board & Another; Ministry of Gender, Culture, the Arts & Heritage (Interested Party) [2025] KECA 666 (KLR), this Court deliberated on whether standard civil procedures such as excluding weekends or the official Page 34 of 24

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Christmas recess from time computations apply to Section 175. The Court reaffirmed that the PPAD Act overrides general civil rules. Page 35 of 24

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Because Section 5 of the PPAD Act gives the Act supremacy over conflicting procedural laws in procurement matters, general procedural extensions do not pause the statutory clock. Therefore, it is our finding that the 1 st and 2nd respondents’ judicial review application was caught up by the timelines under the PPAD Act, hence, the learned judge erred in law in failing to appreciate this fact. 26. The 1st and 2nd respondents’ counsel deployed tremendous energy seeking to persuade this Court to consider the issue at hand from the prism of the Constitution, the Supreme law of the land. Counsel invoked Articles 48 and 259 of the Constitution and urged us to be guided by the constitutional underpinning in interpreting the provisions ousting this Court’s jurisdiction. While the Constitution is the supreme law, courts have consistently ruled that constitutional rights do not automatically invalidate or sweep away statutory deadlines, prescription periods, or time limitations for filing cases or appealing. Procedural time limits remain essential for legal certainty. A party cannot simply invoke the Constitution as a blanket excuse for failing to adhere to prescribed legal timeline. Page 36 of 24

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27. In any event, the Constitution is not a general fall back or an emergency escape hatch to rescue a party who has slept on their statutory rights or failed to comply with strict timelines. This principle directly prevents the circumvention of time- bound statutory jurisdiction, most notably under public procurement, tax, and election laws. In key decisions such as Kenya Arprim Ports Authority vs. PPARB (supra) and Consultants (supra), this Court clarified that Article 159 (2) (b) of the Constitution demands that "justice shall not be delayed". Therefore, statutory timelines serve a constitutional purpose (economic efficiency and rapid delivery of public infrastructure) and cannot be subverted by a party who missed their filing window. Accordingly, raising constitutional arguments (such as a violation of the right to fair administrative action under Article 47 or access to justice under Article 48) does not suddenly immunize a litigant from their own negligence in failing to meet explicit timelines. 28. In Kenya Ports Authority vs. Public Procurement Page 37 of 24

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Administrative Review Board & Others [2024] KECA 1099, this Court observed that litigants frequently argue that stripping courts of the right to hear a case due to a minor delay Page 38 of 24

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violates Article 48 (Access to Justice). However, the Court of Appeal formally affirmed the constitutionality of Section 175. The Court ruled that limiting the temporal window for procurement litigation is a reasonable and justifiable limitation necessary to satisfy Article 227 of the Constitution, which demands efficiency and speed in public procurement. 29. This brings us to the next pertinent question, which is, the respondents’ directions argument with clear that the timelines High which Court issued surpassed the statutory timelines, therefore, the respondents should not be penalized because of a misstate of the court. This argument is appealing, but that is how far it goes. What comes into sharp focus is the duty of a litigant in any court proceedings. To our mind, when a proceeding is locked within a rigid, time-bound statutory window, such as under Section 175 of the PPAD Act or specific election and tax statutes, the duty of the litigant shifts from passive participation to proactive, aggressive prosecution. Litigants are warned that they bear the primary administrative and legal burden to ensure their case is not only filed on time but is actually heard and determined before the statutory Page 39 of 24

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clock expires. Page 40 of 24

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30. Whereas in ordinary civil litigation, a party might rely on the court registry to issue a hearing date or issue directions, in a time-bound statutory framework, this passive approach is fatal. The litigant must actively move the registry, track down the assigned judge, secure a prompt date for a certificate of urgency, and push for a day-to-day hearing schedule. Litigants cannot blame systemic registry delays, a busy court diary or a judge’s absence for missing a deadline. If the statutory timeline runs out (e.g., the 45-day outer limit under the PPAD Act), the Court’s jurisdiction simply expires. The Court will explicitly declare that it was the litigant’s duty to loudly and formally alert the bench to the impending time bar. We find it strange that there is no single letter on record asking for an expedited hearing date before the High Court considering the rigid statutory time frame. The 1 st and 2nd respondents having been passive cannot be heard now to blame the Court after they were caught up by the strict statutory timeline. Under Sections 1A and 1B of the Civil Procedure Act, all parties have a statutory duty to assist the Court in achieving the overriding objective which demands the just, expeditious and proportionate resolution of Page 41 of 24

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disputes. Page 42 of 24

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31. In Said Sweilem Gheithan Saanum vs. Commissioner of Lands (being sued through Attorney General) & 5 Others, [2015] KECA 284 (KLR), this Court re- emphasized that the constitutional principle "justice shall not be delayed" places a shared, active burden on advocates and litigants to ensure the timely disposal of cases. A litigant cannot treat time-bound litigation as an ordinary adversarial wrestling match; they must aggressively facilitate speed. If a litigant fails to proactively push their case to a conclusion within the timeline, the consequences are terminal. The Court cannot use its "inherent powers" to extend a strictly peremptory structured statutory deadline. 32. As is evident from the numerous cases cited herein above, the interpretation of the time bound jurisdiction under Section 175 is not novel. Before the trial court, were decisions rendered by this Court interpreting the said provision and addressing all the issues urged in this appeal. The trial court instead opted to follow a decision rendered by the High Court which also disregarded binding decisions from Page 43 of 24

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this Court. We can only refer to this Court’s decision in Mwai Kibaki vS. Daniel Toroitich Arap Moi [1999] KECA 1 (KLR), in which Page 44 of 24

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this Court censured the trial court for ignoring established legal principles previously laid down by the appellate bench. This Court observed that lower courts cannot simply "set at nought" the binding principles of law pronounced by superior courts, characterizing such intentional deviations as a contumacious violation of the doctrine of stare decisis that deprives litigants of their established legal entitlements. 33. We have said enough to demonstrate our reasons for dismissing this appeal under Rule 34 (1) of the Court of Appeal Rules. Dated and delivered at Nakuru this 2nd day of October, 2026. J. MATIVO ............................ .... JUDGE OF APPEAL MURUNGI B. KAIRARIA ............................ .... JUDGE OF APPEAL AHMED ISSACK ............................ .... JUDGE OF APPEAL I certify that this is Page 45 of 24

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a true copy of the original. Signed. DEPUTY REGISTRAR. Page 46 of 24

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