The Court of Appeal has struck out an appeal by the Kenya Ports Authority (KPA) challenging a High Court decision that quashed the award of a Sh362 million tender for supply and maintenance of 15 forklift trucks.
The court rejected the procurement dispute after finding the appeal was filed one day late, leaving the High Court decision intact. The court reaffirmed that statutory timelines in procurement cases cannot be extended under ordinary appellate procedures.
The court ruled that the authority and its accounting officer failed to invoke the court’s jurisdiction within the mandatory seven-day period prescribed under the Public Procurement and Asset Disposal Act.
The appeal arose from a procurement dispute involving Finnish cargo-handling equipment manufacturer Kalmar Finland Oy, which lost the two-lot tender to Brookwood Technical Limited and Autobikes Ltd early this year. Kalmar was disqualified for failure to file audited accounts for the years 2024 and 2025, though it challenged this, arguing the requirement did not apply to it, as an original equipment manufacturer.
Autobikes Ltd was awarded Lot 2 of the contract for $721,306 (Sh93.2 million) while Brookwood Technical Limited was to get Lot 1 at $2.8 million (Sh362 million) before the Finnish firm lodged a complaint. The tender was for the supply, testing and commissioning of 15 new forklift trucks.
Kalmar Finland Oy successfully challenged Brookwood’s award at the High Court, which quashed the Public Procurement Administrative Review Board’s finding that Brookwood was eligible to participate in the tender.
In the judgment dated May 28, 2026, the court found that Brookwood had not been prequalified to participate in that restricted tender, which had been limited to four firms, whose equipment was already in use at the port. They were identified as XYMA, Hyster, SMV Konecranes and Kalmar.
‘The applicant (Kalmar) was among those prequalified to tender; the interested party (Brookwood) was not,’ said the court. ‘The list of invited bidders is a mandatory requirement, and procuring entities have no legal discretion to waive or deviate from it, and inviting bids from firms that are not in the list would amount to the procuring entity disregarding its own bid conditions, making it illegal,’ it added.
Aggrieved by the High Court judgment, KPA moved to the court of appeal seeking to overturn that decision.
Kalmar separately asked the appellate court to strike out the appeal, arguing that the statutory deadline expired on June 4 but the appeal was lodged and paid for on June 5.
KPA opposed the application, saying it filed a notice of appeal within time and requested typed proceedings from the High Court before attempting to lodge the record of appeal on June 4.
The authority said the court’s Deputy Registrar rejected the filing later that evening because certified proceedings and the High Court judgment had not yet been supplied.
KPA told the court it explained the position the following morning, after which the Deputy Registrar approved the record for filing and payment.
The authority urged the judges not to determine the dispute on procedural grounds, arguing the appeal raised substantial issues deserving consideration.
It argued that “substantive justice, fairness, and equity demand that the appeal be determined on its merits rather than being dismissed for procedural shortcomings.”
KPA also invoked constitutional provisions requiring courts to administer justice without undue regard to procedural technicalities and argued it could not file documents that were unavailable through no fault of its own.
The judges rejected those arguments, holding that procurement appeals occupy a special legal category governed by strict statutory deadlines.
“Section 175(4) of the Public Procurement and Asset Disposal Act provides that an appeal against the decision of the High Court must be filed before the Court of Appeal within seven days,” the bench said.
The judges added that the provision forms the basis of the court’s jurisdiction and that “jurisdiction is everything.”
The court found that although KPA requested typed proceedings before expiry of the deadline, the statutory period continued running because procurement appeals are governed by special provisions overriding ordinary appellate rules.
Quoting earlier decisions, the judges reiterated that “these timelines are cast in stone and cannot be varied.”
The bench also rejected KPA’s reliance on equitable principles protecting litigants from court administrative failures.
“It, therefore, means that the appellants ought to have considered all these factors and endeavoured to file an appeal within time,” the judges said.
They added that KPA failed to demonstrate it had taken every possible step, including physically pursuing registry approval before expiry of the statutory period.