1. The Application before this court is the one dated 4.8.25 wherein the Applicant seeking the following orders:
1) Spent.
2) That this Honourable Court be pleased to issue Interim Stay of Execution of the Judgment dated and delivered by Honourable Justice J. Chigiti (SC) at Nairobi on the 1st day of August 2025 and any consequent Decree/ Orders emanating from the said Judgment pending the hearing and determination of this Application.
3) That this Honourable Court be pleased to issue Interim Stay of Execution of the Judgment dated and delivered by Honourable Justice J. Chigiti (SC) at Nairobi on the 1st day of August 2025 and any consequent Decree/ Orders emanating from the said Judgment pending the hearing and determination of the intended Appeal.
4) That this Honourable Court be pleased to make any such or further Orders that it may deem fit and in the interests of justice.
5) That the Costs of this Application to abide by the outcome of the intended appeal.
2. It is the Applicants case that the High Court, Judicial Review Division, sitting in Nairobi, delivered a Judgment on 1st August, 2025 in Judicial Review Application No. E170 of 2025 (As consolidated with Judicial Review Miscellaneous Application No. E071 of 2025) in favour of the Exparte Applicant.
3. According to the Applicant,The 4th Respondent has already set the hearing of the Request for Review filed in PPARB Application No. 62 of 2025 for 7th August, 2025.
4. The Applicant believes that the Judge misdirected himself in the analysis and determination and the Judicial Review Application and was therefore erred in his findings in the said Judgment in entirety. and the intended Appeal raises serious and arguable triable issues with high chances of success.
5. The Applicant has filed a Notice of Appeal dated 4th August, 2025, with the intention of filing an Appeal within the 7-day timeline as provided by the Public Procurement and Asset Disposal Act.
6. It argues that unless the Court intervenes and issues the Orders sought herein, the Judgment shall be executed and the substance of this Application shall be spent rendering the hearing and determination of the Intended Appeal an academic exercise.
7. The Applicant has an arguable Appeal and the intended Appeal has a very high probability of success. There are sufficient and reasonable grounds to warrant the granting of the Orders sought and it is only fair and just that the Applicant be granted the Orders as prayed.
8. The Applicant argues that this Application has been filed without undue delay and no one will suffer any prejudice should the prayers sought herein be granted. The Applicant stands to suffer loss and damage if the Judgment is executed as is.
The 2nd Applicants’ Submissions;
9. The Application herein stems from the Judgment delivered on 1st August, 2025 which issued final Orders that:
a) An Order of Certiorari to remove and bring to the High Court for purposes of quashing the 1st Respondent's Decision dated and delivered on 11th June, 2025 in Application No. 62 of 2025 is hereby issued;
b) The 1st Respondent's Decision dated and delivered on 11th June, 2025 in ApplicationNo.62 of2025 be quashed;
c) Application for Review Number 62 of 2025 be reheard at the Public Procurement Administrative Review Board within seven (7) days of the decision; and
d) No orders as to Costs.
10. The Applicants being dissatisfied with the said Judgment and noting the strict timelines of Seven (7) days for filing an Appeal, filed a Notice of Appeal and a letter requesting for typed proceedings both dated 4th August, 2025.
11. The Applicants filed the Notice of Motion Application herein dated 4th August, 2025 seeking inter alia, the following orders:
a) Spent.
b) That this Honourable Court be pleased to issue Interim Stay of Execution of the Judgment dated and delivered by Honourable Justice J. Chigiti (SC) at Nairobi on the 1st day of August 2025 and any consequent Decree/Orders emanating from the said Judgment pending the hearing and determination of this Application.
c) That this Honourable Court be pleased to issue Interim Stay of Execution of the Judgment dated and delivered by Honourable Justice J. Chigiti (SC) at Nairobi on the 1st day of August 2025 and any consequent Decree/Orders emanating from the said Judgment pending the hearing and determination of the intended Appeal.
d) That this Honourable Court be pleased to make any such or further Orders that it may deem fit and in the interests of justice.
e) That the cost of this Application to abide to the outcome of the intended Appeal.
12. The Applicant submits that the Application is anchored on the provisions of Articles 47 and 50 of the Constitution of Kenya, 2010, and Order 42 Rule 6 of the Civil Procedure Rules, 2010.
13. It is further submitted that there is a demonstrated arguable Appeal with high likelihood of success and the Application has been brought without any undue delay.
14. It is submitted that if the stay is not granted, the Applicant will suffer substantial loss that cannot be adequately compensated by an award of damages.
15. It is submitted that it is in the interest of justice that the Judgment should be stayed to avoid rendering the Appeal nugatory.
16. The Public Administrative Review Board, the 1st Respondent, served the parties with a hearing notice scheduling the re-hearing of Application No. 62 of 2025 for 7th August, 2025.
17. It is submitted that the rationale for the grant of an Order of stay of execution pending the hearing and determination of an appeal is to preserve the subject matter of the Appeal, and to avoid a situation where a successful Appellant only gets a paper Judgment.
18. Reliance is placed on the case of Peter Nakupanga Lowar v Nautu Lowar[2022] eKLR, where in allowing an Application for stay of execution, the Honourable Court, at paragraph 13 of its Ruling, held that:
“The purpose of an order for stay of execution pending appeal is to preserve the subject matter of the appeal. If the subject is not maintained before the determination of the appeal, then it would render the appeal nugatory or an academic exercise...”
19. It submits that Order 42 Rule 6 (1) and 2 of the Civil Procedure Rules stipulates that:
1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the Application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on Application being made, to consider such Application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is referred may apply to the appellate court to have such order set aside.
2) No order for stay of execution shall be made under sub-rule (1) unless;
a) the court is satisfied that substantial loss may result to the Applicant unless the order is made and that the Application has been made without unreasonable delay; and
b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant.
20. The Court of Appeal in the case of Butt vs Rent Restriction Tribunal [1979] eKLR, reinforced this provision and enunciated on the conditions to be fulfilled for the grant of stay of execution Orders where it stated that:
a) The power of the court to grant or refuse an Application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.
b) Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge's discretion.
c) Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the Applicant at the end of the proceedings.
d) Finally, the Court in exercising its discretion whether to grant or refuse an Application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon Application by either party or on its own motion. Failure to put security of costs as ordered will cause the order for stay of execution to lapse.
21. Reliance is also placed on the Court of Appeal decision in Halai & Another v Thornton & Turpin (1963) Ltd [1990] eKLR, where the Court prescribed the criteria to be met by an Applicant seeking Orders of stay of execution by stating that:
“Thus, the Superior Court's discretion is fettered by three conditions. Firstly, the Applicant must establish a sufficient cause; secondly, the court must be satisfied that substantial loss would ensue from a refusal to grant a stay; and thirdly the Applicant must furnish security. The Application must, of course, be made without unreasonable delay.”
22. It submits that the Applicant herein will suffer substantial loss if a stay of execution Order is not granted by this Court.
23. Reliance is placed on the Court of Appeal decision in Bernard Thiga v Peter Kihiu Ng'ang'a & Another [2020] eKLR, where the Court cited with approval the decision in Mukuma v Abuoga [1988] KLR, where it had been held as follows:
“Substantial loss is what has to be prevented by preserving the status quo because such loss would render it nugatory.” (Emphasis is ours).
24. In Prilscot Company Limited v Monica Heho [2015] eKLR, the High Court cited with approval the decision in Daniel Chebutul Rotich & 2 Others v. Emirates Airlines Civic Case No. 368 of 2001 where the Honourable Court stated thus:
“Substantial loss is a relative term and more often than not can be assessed by the totality of the consequences which an Applicant is likely {to suffer if stay of execution is not granted and that Applicant is therefore forced to pay the decretal sum.” (Emphasis is ours).
25. The Applicants stand to suffer substantial loss if stay of execution is not granted.
26. It submits that should the Public Procurement Administrative Review Board proceed with the rehearing of the Request for Review Application being bound by the decision delivered on 1st August, 2025 that found that the 1st Respondent did not have the requisite jurisdiction to hear and determine Application No. 62 of 2025, then the Appeal filed at the Court of Appeal will be rendered nugatory and a mere academic exercise.
27. The Applicants are yet to exhaust all available legal remedies and argue their case in the Appeal filed at the Court of Appeal and a denial of this opportunity would mean that the 1st Respondent remains bound by the impugned Judgment thereby occasioning substantial loss to the Applicants whose Request for Review in PPARB Application No. 62 of 2025 will be rendered null as the impugned decision found that it was filed outside the statutory timelines.
28. It submits that the Applicants will suffer irreparable loss if the orders sought in the Application dated 4th August, 2025 are not granted.
29. The Applicant submits that the appeal is arguable and has a high probability of success and, therefore, stay of execution should be granted to preserve the substratum of the Appeal.
30. Reliance is placed on the case of Kenya Industrial Estate Limited & Another vs Matilda Tenge Mwachia (2021) eKLR where the Court stated thus:
“Firstly, an Applicant has to satisfy that he/she has an arguable Appeal. However, this is not to say that it must be an Appeal that will necessarily succeed, but suffice to state, that it must be an Appeal that is not frivolous or idle. Secondly, an Applicant has to demonstrate that unless an Order of stay is granted, the Appeal or intended Appeal would be rendered nugatory.” (Emphasis is ours).
31. Further, in Chris Munga N. Bichange -vs- Richard Nyagaka Tongi & 2 Others (2013) eKLR, it was the Court's finding that in law, it is not necessary that there be several arguable issues for the Court to find that the Appeal filed or intended Appeal is arguable. A single bona fide issue will suffice.
32. The Applicants have already filed and served the other parties in the matter with the Notice of Appeal, the letter requesting for certified typed proceedings, the filed Memorandum of Appeal together with the Record of Appeal lodged at the Court of Appeal.
33. It submits that from the Memorandum of Appeal lodged at the Court of Appeal in Civil Appeal Number E630 of 2025, it can be deduced that the crux of the Appeal is on issues regarding the findings of this Honourable Court that are arguable and have high chances of success including:
a) That the Learned Judge erred in law by finding that the Request of Review filed in PPARB Application No. 62 of 2025 was filed outside the fourteen (14) days' statutory period provided for seeking Administrative Review under the Public Procurement and Asset Disposal Act without any analysis whatsoever and without giving any reasons for this finding;
b) That the Learned Judge erred in law by ignoring the constitutional and statutory provisions including the Constitution of Kenya, the Interpretation and General Provisions Act and the Civil Procedure Rules on computation of time thereby arriving at the wrong finding that the Request for Review filed in PPARB Application No. 62 of 2025 was filed outside time;
c) That the Learned Judge erred in law in finding that the Public Procurement Administrative Review Board, the 4th Respondent herein, did not have Jurisdiction to hear and determine the Request for Review filed in PPARB Application No. 62 0/2025;
d) That the Learned Judge erred in law in failing to appreciate that the Judicial Review Application was an Appeal disguised as a Judicial Review Application;
e) That the Learned Judge erred in law in finding that the 4th Respondent herein acted ultra vires and contravened Sections 80 and 84 of the Public Procurement and Asset Disposal Act by substituting the marks awarded by the Evaluating Committee of the 3rd Respondent herein in line with the Tender Documents at the Technical Evaluation Stage;
f) That the Learned Judge erred in law by failing to find that the 4th Respondent rightfully acted within the parameters of Section 173 of the Public Procurement and Asset Disposal Act;
g) That the Learned Judge erred in law in finding that there was an infraction of the 1st Respondent's right to fair hearing despite the failure by the 1st Respondent herein to sufficiently satisfy the parameters for the Judicial Review Orders sought;
h) That the Judgment is completely erroneous having ordered that the Request for Review filed in Application No. 62 of 2025 to be re-heard after already determining that it was filed outside the Statutory Timelines and that the 4th Respondent herein had no jurisdiction thereby crippling the 4thRespondent which is bound by the impugned Decision; and
i) That the Judgment is completely erroneous having ordered that the Request for Review Application be re-heard without Orders as to how such proceedings are to be undertaken and noting the tender expiration.
34. It is submitted that the aforementioned issues as raised in the Appeal are triable issues and the Court of Appeal should not be denied an opportunity to pronounce itself on them.
35. If orders of stay of execution are denied, the Applicants will suffer injustice as they will be denied the crucial opportunity to exhaust all the available remedies within our judicial system.
36. It rely on the Court of Appeal's decision in Sokoro Savings and Credit Co-operative Society Ltd v Mwamburi (Civil Application E032 of 2022) [2023] ICECA 381 (KLR) where Justice W. Korir JA stated that the interest of justice demands that a party is accorded every reasonable and available opportunity to ventilate their grievances within the available ranks of our judicial system.
37. The Appeal and the Application for Stay of Execution have been preferred in a timely manner.
38. They rely on the Court of Appeal decision rendered by the Court of Appeal sitting in Meru in Civil Appeal No. 45 of 2015 M'ndaka Mbiuki -vs- James Mbaabu Mugwiria (2016] eKLR where it was held that:
“This ground is normally easy to determine and is usually straightforward. Although there is no exact measure as to what amounts to unreasonable delay, it will not be difficult to discern inordinate delay when it occurs. It must be such delay that goes beyond acceptable limits given the nature of the act to be performed.”
Grounds of Opposition
39. The Ex-parte Applicant opposes the Application dated 4th August, 2025 on the following grounds: -
1) That the court is fuctus officio by dint of Section 175 (3) of the Public Procurement and Asset Disposal Act, 2015.
2) That an order of certiorari is incapable of being stayed as it is negative order which does not direct anyone to do anything or refrain from doing something.
40. The Exparte Applicants in E071 of 2021 objects to the Application on the following grounds: -
1) The Court is functus officio after the delivery of judgment and/or expiry of forty-five [45] days from the date of filing of the Judicial Review proceeding.
2) The Court does not have jurisdiction to Stay orders of certiorari issued.
Analysis and determination;
The Following issues call for determination:
1. Whether or not this court has jurisdiction.
2. Whether the orders sought can be granted.
3. Who bears the costs.
Whether or not this court has jurisdiction;
41. In determining this issue, the court is guided by the case of Samuel Kamau Macharia & Another v. Kenya commercial Bank & 2 Others, Application No. 2 of 2011 [2012] eKLR, where the supreme court pronounced itself on jurisdiction thus [paragraph 68]:
“(68) A Court's jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second Jurisdiction to entertain a matter before it, is not one of mere procedural Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, Commission (Applicant), Constitutional Application Number 2 of 2011. Where they cannot expand its jurisdiction must operate within the constitutional limits. It confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, court or tribunal by statute law." (Emphasis provided) where it quoted with approval the oft cited case of Owners of Motor Vessel 'Lillian S' v Caltex In Re The Matter of the Interim Independent Electoral Commission where the Court stated: -
"[29] Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid out in judicial precedent. The classic decision in this regard is the Court of Appeal decision in Owners of Motor Vessel 'Lillian S' v. Caltex Oil (Kenya) Limited [1989] KLR 1, which bears the following passage (Nyarangi, JA at p.14):
“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step."
[30] The Lillian 'S' case establishes that jurisdiction flows from the law, and the Recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavors to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution."
42. The Supreme court in the case of Aprim Consultants v Parliamentary Service Commission & another [2021] KECA 1090 (KLR) it was held that a perusal of section 175 of the Act reveals Parliament’s unmistakable intention to constrict the time taken for the filing, hearing and determination of public procurement disputes in keeping with the Act’s avowed intent and object of expeditious resolution of those disputes.
Parliament was thus fully engaged and intentional in setting the timelines in the Section. But it did not stop there. In one of the rarer instances where all discretion is totally shut out, Parliament expressly enacted a consequence to follow default or failure to file or to decide within the prescribed times: the decision of the Board would crystallize and he invested with finality.
Our reading of the Act is that the High Court was under an express duty to make its determination within the time prescribed. During such time did its jurisdiction exist, but it was a time-bound jurisdiction that ran out and ceased by effluxion of time. The moment the 45 days ended, the jurisdiction also ended. Thus, any judgment returned outside time would be without jurisdiction and therefore a nullity, bereft of any force or effect in law.
That legal conclusion remains irrespective of the avowed reasons, no matter how logical, sound, reasonable or persuasive they may be. No amount of policy, wisdom or practicality can invest a decision made without jurisdiction with any legal authority. In the words of the Supreme Court in Samuel Macharia & Anor v Kenya Commercial Bank Limited & 2 Others [2012] eKLR.
“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second Respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within the authority to prescribe the jurisdiction of such a court or tribunal by statute law.”
It seems clear to us that the jurisdiction of the High Court in public procurement judicial review proceedings is expressly limited in terms of time and is not open to expansion by that court. 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.
43. In the instant suit, it is this court’s finding that it lacks the jurisdiction to hear this Application. The court is functus officio.
44. In so holding, this court is guided by the Supreme Court in the case of Raila Odinga& 2 others v Independent Electoral & Boundaries Commission, Ahmed Issack Hassan, Uhuru Kenyatta & William Samoei Ruto (Petition 5, 4 & 3 of 2013) [2013] KESC 8 (KLR) (Civ) (24 October 2013) (Ruling)held as follows on the doctrine of functus officio;
“18. We, therefore, have to consider the concept of “functus officio,” as understood in law. Daniel Malan Pretorius, in “The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law,” (2005) 122 SALJ 832, has thus explicated this concept: “The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.… The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.”
19. This principle has been aptly summarized further in Jersey Evening Post Limited v A1 Thani [2002] JLR 542 at 550:“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available” [emphasis supplied].
45. Having found that it is functus officio, the court proceeds to down its tools and it cannot preside over the other issues.
Disposition;
46. The court lacks the jurisdiction to hear the Application.
Order:
The Application dated 4.8.25 is struck out with costs.
1) Spent.
2) That this Honourable Court be pleased to issue Interim Stay of Execution of the Judgment dated and delivered by Honourable Justice J. Chigiti (SC) at Nairobi on the 1st day of August 2025 and any consequent Decree/ Orders emanating from the said Judgment pending the hearing and determination of this Application.
3) That this Honourable Court be pleased to issue Interim Stay of Execution of the Judgment dated and delivered by Honourable Justice J. Chigiti (SC) at Nairobi on the 1st day of August 2025 and any consequent Decree/ Orders emanating from the said Judgment pending the hearing and determination of the intended Appeal.
4) That this Honourable Court be pleased to make any such or further Orders that it may deem fit and in the interests of justice.
5) That the Costs of this Application to abide by the outcome of the intended appeal.
2. It is the Applicants case that the High Court, Judicial Review Division, sitting in Nairobi, delivered a Judgment on 1st August, 2025 in Judicial Review Application No. E170 of 2025 (As consolidated with Judicial Review Miscellaneous Application No. E071 of 2025) in favour of the Exparte Applicant.
3. According to the Applicant,The 4th Respondent has already set the hearing of the Request for Review filed in PPARB Application No. 62 of 2025 for 7th August, 2025.
4. The Applicant believes that the Judge misdirected himself in the analysis and determination and the Judicial Review Application and was therefore erred in his findings in the said Judgment in entirety. and the intended Appeal raises serious and arguable triable issues with high chances of success.
5. The Applicant has filed a Notice of Appeal dated 4th August, 2025, with the intention of filing an Appeal within the 7-day timeline as provided by the Public Procurement and Asset Disposal Act.
6. It argues that unless the Court intervenes and issues the Orders sought herein, the Judgment shall be executed and the substance of this Application shall be spent rendering the hearing and determination of the Intended Appeal an academic exercise.
7. The Applicant has an arguable Appeal and the intended Appeal has a very high probability of success. There are sufficient and reasonable grounds to warrant the granting of the Orders sought and it is only fair and just that the Applicant be granted the Orders as prayed.
8. The Applicant argues that this Application has been filed without undue delay and no one will suffer any prejudice should the prayers sought herein be granted. The Applicant stands to suffer loss and damage if the Judgment is executed as is.
The 2nd Applicants’ Submissions;
9. The Application herein stems from the Judgment delivered on 1st August, 2025 which issued final Orders that:
a) An Order of Certiorari to remove and bring to the High Court for purposes of quashing the 1st Respondent's Decision dated and delivered on 11th June, 2025 in Application No. 62 of 2025 is hereby issued;
b) The 1st Respondent's Decision dated and delivered on 11th June, 2025 in ApplicationNo.62 of2025 be quashed;
c) Application for Review Number 62 of 2025 be reheard at the Public Procurement Administrative Review Board within seven (7) days of the decision; and
d) No orders as to Costs.
10. The Applicants being dissatisfied with the said Judgment and noting the strict timelines of Seven (7) days for filing an Appeal, filed a Notice of Appeal and a letter requesting for typed proceedings both dated 4th August, 2025.
11. The Applicants filed the Notice of Motion Application herein dated 4th August, 2025 seeking inter alia, the following orders:
a) Spent.
b) That this Honourable Court be pleased to issue Interim Stay of Execution of the Judgment dated and delivered by Honourable Justice J. Chigiti (SC) at Nairobi on the 1st day of August 2025 and any consequent Decree/Orders emanating from the said Judgment pending the hearing and determination of this Application.
c) That this Honourable Court be pleased to issue Interim Stay of Execution of the Judgment dated and delivered by Honourable Justice J. Chigiti (SC) at Nairobi on the 1st day of August 2025 and any consequent Decree/Orders emanating from the said Judgment pending the hearing and determination of the intended Appeal.
d) That this Honourable Court be pleased to make any such or further Orders that it may deem fit and in the interests of justice.
e) That the cost of this Application to abide to the outcome of the intended Appeal.
12. The Applicant submits that the Application is anchored on the provisions of Articles 47 and 50 of the Constitution of Kenya, 2010, and Order 42 Rule 6 of the Civil Procedure Rules, 2010.
13. It is further submitted that there is a demonstrated arguable Appeal with high likelihood of success and the Application has been brought without any undue delay.
14. It is submitted that if the stay is not granted, the Applicant will suffer substantial loss that cannot be adequately compensated by an award of damages.
15. It is submitted that it is in the interest of justice that the Judgment should be stayed to avoid rendering the Appeal nugatory.
16. The Public Administrative Review Board, the 1st Respondent, served the parties with a hearing notice scheduling the re-hearing of Application No. 62 of 2025 for 7th August, 2025.
17. It is submitted that the rationale for the grant of an Order of stay of execution pending the hearing and determination of an appeal is to preserve the subject matter of the Appeal, and to avoid a situation where a successful Appellant only gets a paper Judgment.
18. Reliance is placed on the case of Peter Nakupanga Lowar v Nautu Lowar[2022] eKLR, where in allowing an Application for stay of execution, the Honourable Court, at paragraph 13 of its Ruling, held that:
“The purpose of an order for stay of execution pending appeal is to preserve the subject matter of the appeal. If the subject is not maintained before the determination of the appeal, then it would render the appeal nugatory or an academic exercise...”
19. It submits that Order 42 Rule 6 (1) and 2 of the Civil Procedure Rules stipulates that:
1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the Application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on Application being made, to consider such Application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is referred may apply to the appellate court to have such order set aside.
2) No order for stay of execution shall be made under sub-rule (1) unless;
a) the court is satisfied that substantial loss may result to the Applicant unless the order is made and that the Application has been made without unreasonable delay; and
b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant.
20. The Court of Appeal in the case of Butt vs Rent Restriction Tribunal [1979] eKLR, reinforced this provision and enunciated on the conditions to be fulfilled for the grant of stay of execution Orders where it stated that:
a) The power of the court to grant or refuse an Application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.
b) Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge's discretion.
c) Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the Applicant at the end of the proceedings.
d) Finally, the Court in exercising its discretion whether to grant or refuse an Application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon Application by either party or on its own motion. Failure to put security of costs as ordered will cause the order for stay of execution to lapse.
21. Reliance is also placed on the Court of Appeal decision in Halai & Another v Thornton & Turpin (1963) Ltd [1990] eKLR, where the Court prescribed the criteria to be met by an Applicant seeking Orders of stay of execution by stating that:
“Thus, the Superior Court's discretion is fettered by three conditions. Firstly, the Applicant must establish a sufficient cause; secondly, the court must be satisfied that substantial loss would ensue from a refusal to grant a stay; and thirdly the Applicant must furnish security. The Application must, of course, be made without unreasonable delay.”
22. It submits that the Applicant herein will suffer substantial loss if a stay of execution Order is not granted by this Court.
23. Reliance is placed on the Court of Appeal decision in Bernard Thiga v Peter Kihiu Ng'ang'a & Another [2020] eKLR, where the Court cited with approval the decision in Mukuma v Abuoga [1988] KLR, where it had been held as follows:
“Substantial loss is what has to be prevented by preserving the status quo because such loss would render it nugatory.” (Emphasis is ours).
24. In Prilscot Company Limited v Monica Heho [2015] eKLR, the High Court cited with approval the decision in Daniel Chebutul Rotich & 2 Others v. Emirates Airlines Civic Case No. 368 of 2001 where the Honourable Court stated thus:
“Substantial loss is a relative term and more often than not can be assessed by the totality of the consequences which an Applicant is likely {to suffer if stay of execution is not granted and that Applicant is therefore forced to pay the decretal sum.” (Emphasis is ours).
25. The Applicants stand to suffer substantial loss if stay of execution is not granted.
26. It submits that should the Public Procurement Administrative Review Board proceed with the rehearing of the Request for Review Application being bound by the decision delivered on 1st August, 2025 that found that the 1st Respondent did not have the requisite jurisdiction to hear and determine Application No. 62 of 2025, then the Appeal filed at the Court of Appeal will be rendered nugatory and a mere academic exercise.
27. The Applicants are yet to exhaust all available legal remedies and argue their case in the Appeal filed at the Court of Appeal and a denial of this opportunity would mean that the 1st Respondent remains bound by the impugned Judgment thereby occasioning substantial loss to the Applicants whose Request for Review in PPARB Application No. 62 of 2025 will be rendered null as the impugned decision found that it was filed outside the statutory timelines.
28. It submits that the Applicants will suffer irreparable loss if the orders sought in the Application dated 4th August, 2025 are not granted.
29. The Applicant submits that the appeal is arguable and has a high probability of success and, therefore, stay of execution should be granted to preserve the substratum of the Appeal.
30. Reliance is placed on the case of Kenya Industrial Estate Limited & Another vs Matilda Tenge Mwachia (2021) eKLR where the Court stated thus:
“Firstly, an Applicant has to satisfy that he/she has an arguable Appeal. However, this is not to say that it must be an Appeal that will necessarily succeed, but suffice to state, that it must be an Appeal that is not frivolous or idle. Secondly, an Applicant has to demonstrate that unless an Order of stay is granted, the Appeal or intended Appeal would be rendered nugatory.” (Emphasis is ours).
31. Further, in Chris Munga N. Bichange -vs- Richard Nyagaka Tongi & 2 Others (2013) eKLR, it was the Court's finding that in law, it is not necessary that there be several arguable issues for the Court to find that the Appeal filed or intended Appeal is arguable. A single bona fide issue will suffice.
32. The Applicants have already filed and served the other parties in the matter with the Notice of Appeal, the letter requesting for certified typed proceedings, the filed Memorandum of Appeal together with the Record of Appeal lodged at the Court of Appeal.
33. It submits that from the Memorandum of Appeal lodged at the Court of Appeal in Civil Appeal Number E630 of 2025, it can be deduced that the crux of the Appeal is on issues regarding the findings of this Honourable Court that are arguable and have high chances of success including:
a) That the Learned Judge erred in law by finding that the Request of Review filed in PPARB Application No. 62 of 2025 was filed outside the fourteen (14) days' statutory period provided for seeking Administrative Review under the Public Procurement and Asset Disposal Act without any analysis whatsoever and without giving any reasons for this finding;
b) That the Learned Judge erred in law by ignoring the constitutional and statutory provisions including the Constitution of Kenya, the Interpretation and General Provisions Act and the Civil Procedure Rules on computation of time thereby arriving at the wrong finding that the Request for Review filed in PPARB Application No. 62 of 2025 was filed outside time;
c) That the Learned Judge erred in law in finding that the Public Procurement Administrative Review Board, the 4th Respondent herein, did not have Jurisdiction to hear and determine the Request for Review filed in PPARB Application No. 62 0/2025;
d) That the Learned Judge erred in law in failing to appreciate that the Judicial Review Application was an Appeal disguised as a Judicial Review Application;
e) That the Learned Judge erred in law in finding that the 4th Respondent herein acted ultra vires and contravened Sections 80 and 84 of the Public Procurement and Asset Disposal Act by substituting the marks awarded by the Evaluating Committee of the 3rd Respondent herein in line with the Tender Documents at the Technical Evaluation Stage;
f) That the Learned Judge erred in law by failing to find that the 4th Respondent rightfully acted within the parameters of Section 173 of the Public Procurement and Asset Disposal Act;
g) That the Learned Judge erred in law in finding that there was an infraction of the 1st Respondent's right to fair hearing despite the failure by the 1st Respondent herein to sufficiently satisfy the parameters for the Judicial Review Orders sought;
h) That the Judgment is completely erroneous having ordered that the Request for Review filed in Application No. 62 of 2025 to be re-heard after already determining that it was filed outside the Statutory Timelines and that the 4th Respondent herein had no jurisdiction thereby crippling the 4thRespondent which is bound by the impugned Decision; and
i) That the Judgment is completely erroneous having ordered that the Request for Review Application be re-heard without Orders as to how such proceedings are to be undertaken and noting the tender expiration.
34. It is submitted that the aforementioned issues as raised in the Appeal are triable issues and the Court of Appeal should not be denied an opportunity to pronounce itself on them.
35. If orders of stay of execution are denied, the Applicants will suffer injustice as they will be denied the crucial opportunity to exhaust all the available remedies within our judicial system.
36. It rely on the Court of Appeal's decision in Sokoro Savings and Credit Co-operative Society Ltd v Mwamburi (Civil Application E032 of 2022) [2023] ICECA 381 (KLR) where Justice W. Korir JA stated that the interest of justice demands that a party is accorded every reasonable and available opportunity to ventilate their grievances within the available ranks of our judicial system.
37. The Appeal and the Application for Stay of Execution have been preferred in a timely manner.
38. They rely on the Court of Appeal decision rendered by the Court of Appeal sitting in Meru in Civil Appeal No. 45 of 2015 M'ndaka Mbiuki -vs- James Mbaabu Mugwiria (2016] eKLR where it was held that:
“This ground is normally easy to determine and is usually straightforward. Although there is no exact measure as to what amounts to unreasonable delay, it will not be difficult to discern inordinate delay when it occurs. It must be such delay that goes beyond acceptable limits given the nature of the act to be performed.”
Grounds of Opposition
39. The Ex-parte Applicant opposes the Application dated 4th August, 2025 on the following grounds: -
1) That the court is fuctus officio by dint of Section 175 (3) of the Public Procurement and Asset Disposal Act, 2015.
2) That an order of certiorari is incapable of being stayed as it is negative order which does not direct anyone to do anything or refrain from doing something.
40. The Exparte Applicants in E071 of 2021 objects to the Application on the following grounds: -
1) The Court is functus officio after the delivery of judgment and/or expiry of forty-five [45] days from the date of filing of the Judicial Review proceeding.
2) The Court does not have jurisdiction to Stay orders of certiorari issued.
Analysis and determination;
The Following issues call for determination:
1. Whether or not this court has jurisdiction.
2. Whether the orders sought can be granted.
3. Who bears the costs.
Whether or not this court has jurisdiction;
41. In determining this issue, the court is guided by the case of Samuel Kamau Macharia & Another v. Kenya commercial Bank & 2 Others, Application No. 2 of 2011 [2012] eKLR, where the supreme court pronounced itself on jurisdiction thus [paragraph 68]:
“(68) A Court's jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second Jurisdiction to entertain a matter before it, is not one of mere procedural Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, Commission (Applicant), Constitutional Application Number 2 of 2011. Where they cannot expand its jurisdiction must operate within the constitutional limits. It confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, court or tribunal by statute law." (Emphasis provided) where it quoted with approval the oft cited case of Owners of Motor Vessel 'Lillian S' v Caltex In Re The Matter of the Interim Independent Electoral Commission where the Court stated: -
"[29] Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid out in judicial precedent. The classic decision in this regard is the Court of Appeal decision in Owners of Motor Vessel 'Lillian S' v. Caltex Oil (Kenya) Limited [1989] KLR 1, which bears the following passage (Nyarangi, JA at p.14):
“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step."
[30] The Lillian 'S' case establishes that jurisdiction flows from the law, and the Recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavors to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution."
42. The Supreme court in the case of Aprim Consultants v Parliamentary Service Commission & another [2021] KECA 1090 (KLR) it was held that a perusal of section 175 of the Act reveals Parliament’s unmistakable intention to constrict the time taken for the filing, hearing and determination of public procurement disputes in keeping with the Act’s avowed intent and object of expeditious resolution of those disputes.
Parliament was thus fully engaged and intentional in setting the timelines in the Section. But it did not stop there. In one of the rarer instances where all discretion is totally shut out, Parliament expressly enacted a consequence to follow default or failure to file or to decide within the prescribed times: the decision of the Board would crystallize and he invested with finality.
Our reading of the Act is that the High Court was under an express duty to make its determination within the time prescribed. During such time did its jurisdiction exist, but it was a time-bound jurisdiction that ran out and ceased by effluxion of time. The moment the 45 days ended, the jurisdiction also ended. Thus, any judgment returned outside time would be without jurisdiction and therefore a nullity, bereft of any force or effect in law.
That legal conclusion remains irrespective of the avowed reasons, no matter how logical, sound, reasonable or persuasive they may be. No amount of policy, wisdom or practicality can invest a decision made without jurisdiction with any legal authority. In the words of the Supreme Court in Samuel Macharia & Anor v Kenya Commercial Bank Limited & 2 Others [2012] eKLR.
“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second Respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within the authority to prescribe the jurisdiction of such a court or tribunal by statute law.”
It seems clear to us that the jurisdiction of the High Court in public procurement judicial review proceedings is expressly limited in terms of time and is not open to expansion by that court. 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.
43. In the instant suit, it is this court’s finding that it lacks the jurisdiction to hear this Application. The court is functus officio.
44. In so holding, this court is guided by the Supreme Court in the case of Raila Odinga& 2 others v Independent Electoral & Boundaries Commission, Ahmed Issack Hassan, Uhuru Kenyatta & William Samoei Ruto (Petition 5, 4 & 3 of 2013) [2013] KESC 8 (KLR) (Civ) (24 October 2013) (Ruling)held as follows on the doctrine of functus officio;
“18. We, therefore, have to consider the concept of “functus officio,” as understood in law. Daniel Malan Pretorius, in “The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law,” (2005) 122 SALJ 832, has thus explicated this concept: “The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.… The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.”
19. This principle has been aptly summarized further in Jersey Evening Post Limited v A1 Thani [2002] JLR 542 at 550:“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available” [emphasis supplied].
45. Having found that it is functus officio, the court proceeds to down its tools and it cannot preside over the other issues.
Disposition;
46. The court lacks the jurisdiction to hear the Application.
Order:
The Application dated 4.8.25 is struck out with costs.