In any country's legal system, the ability to access justice is an important part of the social contract. Public procurement law, just like any other field of law, should promote socio-economic development through the fair allocation of resources (including government purchasing). In this article, we will be looking at some of the laws regulating public procurement disputes in Kenya and explaining how some of them might be impeding the goals mentioned above.

Is it just for litigants’ matters to be dismissed on account of the failure by the Courts to determine their procurement challenges within forty-five days? Injustice seems to have been occasioned by the way in which the Court of Appeal decision in the case of Arprim Consultants v Parliamentary Service Commission & Another (Civil Appeal No. E039 of 2021) is being implemented at the High Court.

In the Arprim case, the Court of Appeal found that judicial review proceedings challenging the decisions of the Public Procurement Administrative Review Board under Public Procurement and Asset Disposal Act, 2015 (PPADA), should be strictly concluded within forty-five days from the date when they are filed. Any decision rendered outside the prescribed timeline would be a nullity, bereft of any force of law.

The decision has been enforced in the High Court, resulting in the dismissal of several matters that had been filed before the Arprim decision was made but had not been determined within forty-five days of filing. Although the litigants who filed those matters had filed them within the set timelines, even though the matters had not been heard and concluded within the forty-five days as required by PPADA. These matters were awaiting determination at the High Court against the background that the High Court had in several decisions declared Section 175(3)(5) of the PPADA which imposes the forty-five-day timeline as being unconstitutional and as such, the matters were properly pending before the Courts for determination.

The Arprim decision has for obvious reasons elicited diverse reactions, especially among the law practitioners, with many saying that the decision is a barrier to accessing justice.

It should be noted that the PPADA was operationalised on 7 January 2016 with the sole purpose of aligning all public procurement proceedings in Kenya to the provisions of the Constitution of Kenya 2010 and particularly, to give effect to the public procurement principles of fairness, equity, transparency, competitiveness, and cost-effectiveness. These principles are the foundation of public procurement law in Kenya and permeate the entire public procurement legal framework.

A look at the PPADA reveals that there are clear timelines within which disputes arising out of public procurement proceedings should be resolved. For instance, a request for review before the Review Board should be filed within fourteen days of a procurement award. The Review Board is expected to determine the request for review within twenty-one days from the date of filing. A party dissatisfied with the Review Board’s decision should seek judicial review from the High Court within fourteen days. The High Court is in turn mandated to determine the judicial review application within forty-five days after the date of filing. If any, subsequent appeal to the Court of Appeal ought to be lodged within seven days and determined within forty-five days.

It has been correctly argued that imposing strict timelines in resolving procurement disputes is aimed at accelerating the timely disposal of public procurement proceedings to pave way for expeditious implementation of government projects within the timeframe of the relevant financial cycle.

The provision imposing the timelines for completion of the judicial review proceedings, within forty-five days, Section 175(3)(5) of the PPADA, became the subject of numerous challenges including in the case of Republic v Public Procurement Administrative Review Board & another Exparte Kleen Homes Security Services Limited.

In determining the challenge, the Court in the Kleen Homes case took the view that it would be impracticable to determine all public procurement Judicial Review matters within forty-five days from the date of the institution, bearing in mind the rate at which Kenyans were challenging administrative actions taken in procurement matters and the expansive Bill of Rights under the new constitutional order, including the right to fair administrative action which did not impose timelines for determination of disputes. The Court in the matter held that the section imposing the timelines was therefore unconstitutional. The Court further pointed out that in any event, the indicated timeline of forty-five days was impractical considering the challenges faced by the judiciary including a severe shortage of judges, the number of challenges filed, and the need for sufficient time to comprehensively address the complex issues which ordinarily arise in these types of matters.

The Arprim case in effect overturned the decisions of the High Court on the issue as to whether Section 175(3)(5) of PPADA is unconstitutional, as it upheld the Section’s constitutionality.

In our view, imposing strict timelines on the High Court which are already reeling under unprecedented backlogs of cases, without addressing the concomitant challenge of inadequate judges, would hurt the overall dispensation of justice. The litigants would most probably feel that they have not been given a fair hearing as sufficient time is not allocated to them to present the cases. Further, the Courts would also be put in a rush to render decisions, resulting in a dearth of quality decisions from the Courts which could properly guide future procurement and minimize litigation. Arguably, form over substance has finally reigned supreme.

Dismissal of litigants’ matters when they were filed within time, and when the prevailing legal position at the time of filing was that Section 175(3)(5) of PPADA had been declared unconstitutional is a violation of the parties’ rights to access justice and fair hearing. One of the possible measures to mitigate the violation was for the Court of Appeal in the Arprim to apply the decision prospectively as it appears to have been given a retrospective effect to the detriment of litigants.

It is important to state that timelines should be crafted not as an end in themselves but rather as catalysts for substantive justice. In recognition of the relatively peripheral role of timelines and wary of the potential of such timelines to turn into hindrances to justice, Courts are clothed with discretion to extend the time for complying with various requirements under various laws whenever good reasons for grant of such extension exist. Public procurement disputes should not be exceptional.

Perfect efficiency and strict compliance with the timelines prescribed under the PPADA can never be completely assured as factors beyond the control of the parties and the Courts are likely to crop up now and then. For instance, unexpected illness of parties, their advocates, and judges may delay the hearing of disputes and delivery of judgments.  Further, technical hitches such as have lately characterized the judiciary e-filing system may cause delays for parties who are otherwise keen on adhering to the strict timelines on the filing of documents. If the Courts allow themselves to be blinded by the pursuit of cold adherence to rules without any regard to the administration of substantive justice, the sacred principles of public procurement, as well as the right of access to justice and the right to a fair hearing  will be completely trampled upon, to the detriment of the public.

Perhaps it is time Section 175 of PPADA was relooked at for purposes of either giving more realistic timelines for determination of the disputes or to give the Courts power to extend time in appropriate circumstances as to ensure justice is served.

The article was published in the Business Daily and can be accessed here.