1.The background to the ruling is that the appeal on which the application is anchored arises from the judgment of the High Court dated 26th October 2021 where the Court issued orders of certiorari quashing the entire decision of the Public Procurement Administrative Review Board (“2nd respondent”) which had been made on 1st September 2021.
2.The brief background to this appeal is that the appellant had filed an application before the 2nd respondent challenging Tender No. IEBC/OIT/001/2020/2021 that had been awarded to the 1st respondent by the 3rd respondent. The tender was for the supply, delivery, installation, testing, commissioning, support and maintenance of the Kenya Integrated Elections Management System prevalently known as KIEMS.
3.The 2nd respondent allowed the application and nullified the tender issued to the 1st respondent. The 3rd respondent who was the procuring entity for the tender was directed to readvertise the tender within 30 days of the decision.
4.The 1st respondent, although not a party to the proceedings before the 2nd respondent, was dissatisfied by the decision of the 2nd respondent and challenged it before the High Court by way of a judicial review application, to wit, Misc C.A Judicial Review No. E134 of 2021. The argument by the 1st respondent was that the 2nd respondent had in rendering its decision acted ultra vires and that its decision was irrational and illegal.
5.The High Court vide its judgment dated 26th October 2021 issued orders of certiorari quashing the entire decision of the 2nd respondent made on 1st September 2021. The learned judge made a finding that the 2nd respondent did not understand the relevant provisions of the Public Procurement and Asset Disposal Act, 2015 (hereafter “the PPAD Act”) that regulates its decision-making power. In particular, that the 2nd respondent had misapprehended the provisions of section 2 of the PPAD Act on who a candidate is and whether the appellant was such a candidate capable of instituting a request for review before it under section 167(1) of the Act. The learned judge held that the 2nd respondent had unreasonably entertained a party who was no more than a busy body in the proceedings and further, that it had assumed jurisdiction which it did not have.
6.The appellant was dissatisfied with the decision of the High Court and lodged a notice of appeal on 28th October 2021 before the High Court, evincing the intention to appeal against the entire decision of the High Court. The appellant filed the appeal on 12th January 2022.
7.When the appeal came before us for hearing on 22nd February 2022, we were confronted with an application by way of notice of motion dated 8th February 2022 by the 1st respondent challenging the jurisdiction of this Court to hear and determine the appeal and/or any proceedings incidental thereto.
8.The gist of the application is that this being a time bound appeal, the Court has no jurisdiction to hear and determine the appeal on account of effluxion of time. Accordingly, the appeal ought to be struck out for want of jurisdiction.
9.Dr. Munabi, learned counsel for the 1st respondent, submitted that the High Court delivered judgment on 26th October 2021 and by dint of sections 175 (4) and (5) of the PPAD Act the jurisdiction of this Court to hear and determine the appeal and any incidental proceedings thereto lapsed on 17th December 2021 on account of effluxion of time. Learned counsel referred us to previous decisions of this Court in Aprim Consultants vs. Parliamentary Service Commission & Another, Civil Appeal No. E039 of 2021 and Al Ghurair Printing and Publishing LLC v Coalition for Reforms and Democracy & 2 others  eKLR, Civil Appeal No. 63 Of 2017, where this Court (differently constituted) held that the provisions of section 175 of the PPAD Act are plain and unambiguous and the timelines set therein are straight and tight.
10.Mr. Obura, learned counsel for the 3rd respondent, supported the arguments by the 1st respondent and added that the appellant did not in any way participate in the tender process and was therefore a busy body who stood to suffer no loss in the tender being awarded to the 1st respondent. He urged us to accordingly strike out the appeal as prayed by the 1st respondent.
11.Ms. Masai, learned counsel for the appellant, submitted that upon delivery of the impugned judgment by the High Court on 26th October 2021, her client filed a notice of appeal on 28th October 2021 and requested for certified copies of typed proceedings on the same date. She conceded that the appeal was filed on 12th January 2022.
12.She submitted that the PPAD Act does not oust the Appellate Jurisdiction Act and that pursuant to the provisions of the latter Act, the appeal was filed in time. When we asked counsel to comment on this Court’s decision in the Aprim Consultant’s matter, (supra), regarding the timelines imposed by section 175 of the PPAD Act, she indicated that the decision only addressed the issue of time for delivery of judgments by the High Court in procurement matters, but did not deal with the issue of timelines for filing of appeals to this Court.
13.Ms. Masai further submitted that by listing this appeal for hearing, the Court had created a legitimate expectation that her client’s appeal would be heard and be determined on merit.
14.In his rejoinder, Mr. Munabi stated that in the Aprim Consultant’s matter this Court properly explained the provisions of section 175 of the PPAD Act regarding all aspects of time in filing and determination of procurement matters. And on the issue of legitimate expectation, counsel submitted that legitimate expectation cannot operate contrary to the law.
15.We have carefully considered the application, the affidavits on record as well as submissions by counsel. Jurisdiction is everything, it is what gives a court or a tribunal the power, authority and legitimacy to entertain a matter before it. A decision made by a court of law without jurisdiction is a nullity ab initio, and such a decision is amenable to setting aside ex debito justitiae.
16.The locus classicus case on jurisdiction or want of it is the celebrated case of Owners of the Motor Vessel ‘Lillian S’ v. Caltex Oil (Kenya) Ltd  KLR 1 in which Nyarangi, J.A., (as he then was), relying, inter alia, on a treatise by John Beecroft Saunders titled “Words and Phrases Legally Defined” held as follows: -
18.The pertinent provisions of section 175 of the PPAD Act upon which the application to strike out the appeal is predicated reads as follows:
19.The above cited provisions give both the High Court and this Court strict timelines within which to hear and determine an appeal filed in the respective courts. This Court in the Aprim matter (supra) considered the effect of the timelines set out under section 175 and whether the Court could exercise its discretion as far as the applicability and practicality of the provisions are concerned. The Court (Okwengu, Kiage & Sichale, JJ.A.) held, inter alia, as follows:
20.In the Al Ghurair case (supra), Gatembu, J.A. expressed himself thus:
21.The issue of the timelines provided for under section 175 is therefore not novel to this Court. We fully associate ourselves with the findings of the Court both in the Aprim matter (supra) and the Al Ghurair case (supra).
22.It is not contested that the appeal herein was filed on 12th January 2022. Pursuant to the provisions of section 175(4), the appeal should have been filed within 7 days from 26th October 2021, viz, by 2nd November 2021. As at the date the appeal was filed, the 7 days’ period within which the appeal should have been filed had already lapsed. The appeal then ought to have been heard and determined within 45 days from 2nd November 2021, that is to say by 17th December 2021. It follows, therefore, that as at the time of filing the appeal, to wit, 12th January 2022, the period within which this Court had to hear and determine the appeal had already lapsed. We agree with the 1st respondent that pursuant to the provisions of section 175(4) of the PPAD Act this Court had a time-bound jurisdiction to hear and determine the appeal. When the 45 days’ period ended, the Court’s jurisdiction also came to an end by way effluxion of time.
24.Having held that we are bereft of jurisdiction, the only logical thing for us to do is to down our tools, as we hereby do. Accordingly, we allow the 1st respondent’s application dated 8th February 2022 and strike out this appeal and award costs thereof to the 1st and 3rd respondents. The 2nd respondent neither attended court nor filed any submissions in this appeal.
DATED AND DELIVERED AT NAIROBI THIS 4TH DAY OF MARCH, 2022.D. K. MUSINGA, (P)................................JUDGE OF APPEALR. N. NAMBUYE................................JUDGE OF APPEALF. SICHALE................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR