The Court of Appeal Shuts the Door on Delayed Tender Complaints and Affirms the Strict Boundaries of PPARB’s Jurisdiction.
“Jurisdiction is everything, a foundational prerequisite in all courts or administrative proceedings, without which a court or any other adjudicative body cannot act.”
Introduction and Brief Background of the Case
On 2nd April 2026, the Court of Appeal delivered a pivotal judgment in Civil Appeal E137 of 2026: Goldfield Insurance Brokers Limited v Public Procurement Administrative Review Board & 3 Others. This case serves as a stern reminder to the business and procurement players that in public procurement, waiting to see if you win or lose before challenging a flawed process is a legally fatal strategy.
The dispute arose from Tender No. CGN/CS/INS/01/2025-2026, advertised by the County Government of Nyeri for the provision of comprehensive medical insurance cover. During the public tender opening on 6th November 2025, the bid bond for Utmost Insurance Brokers Limited (the 4th Respondent) was erroneously read out as Kshs. 3 million instead of the mandatory Kshs. 6.9 million. An hour later, the tender opening committee sent an SMS to the bidders clarifying that the 4th Respondent had actually submitted a valid bank guarantee of Kshs. 6.9 million from Family Bank.
The Appellant, Goldfield Insurance Brokers Limited, noted this discrepancy but did not immediately challenge it. Instead, it waited until 18th November 2025, when the notification of award was issued to the 4th Respondent, and subsequently filed a Request for Review on 1st December 2025.
The mandatory 14-Day Statutory Timer
The central legal issue turned on the interpretation of Section 167(1) of the Public Procurement and Asset Disposal Act (PPADA). The Court of Appeal emphasized that procurement proceedings are strictly time-bound. Neither the parties concerned, nor the Review Board and courts, have the luxury of time.
The Court definitively ruled that an aggrieved candidate or tenderer can request a review within fourteen days of the occurrence of a breach before an award is made, upon notification of the award, or after the award, whichever is the earliest available option. Importantly, once a bidder is aware of any breach of a procurement process that may prejudice their interests, they need not wait to know the outcome of their bid.
Interpreting the “Wait and See” Misconception
The Appellant attempted to argue that its delay was justified under Section 78(7) of the PPADA, which bars disqualification at the tender opening stage. They contended that since no operative injury had crystallized until the final award was made, the 14-day clock only began to tick on 18th November 2025.
The Court of Appeal systematically dismantled this argument. It affirmed that Section 78(7) does not preclude an aggrieved tenderer from applying for a review by the Board if they allege a breach of duty by the tender opening committee. A bidder does not have to wait until they are disqualified to challenge a breach. Time began to run on 6th November 2025 when the Appellant became aware of the alleged irregularity. Consequently, the Request for Review filed on 1st December 2025 was filed out of time, stripping the 1st Respondent (PPARB) of any jurisdiction to hear it.
Public Implications: A Warning to the Procurement Sector
This judgment impacts how businesses and legal practitioners must navigate procurement disputes:
| Stakeholder | Implication |
| Bidders & Contractors |
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| Procuring Entities |
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| Dispute Resolution Bodies |
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Conclusion
The Court of Appeal’s decision acts as a judicial guide regarding procurement dispute timelines. By upholding the High Court’s decision to quash the PPARB’s cancellation of the tender, the Court reinforced that statutory timelines are unforgiving and strictly enforced. The Judgement is a masterclass that shatters the illusion that bidders can sit on their rights and use complaints as a fallback strategy if they fail to win a tender. Due diligence now requires immediate and proactive legal action at the very first sight of a procurement irregularity.
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About the author
Allen Waiyaki Gichuhi, our Senior Partner, is an experienced and widely respected litigator with over 20 years experience in complex commercial litigation. He is actively involved in legal industry reforms and is ranked in Dispute Resolution Band 2 by Chambers Global. Learn more
His main areas of practice include: Employment and Labour Law, Human Rights Law, Banking and Finance Law Conveyancing and Alternative Dispute Resolution Commercial Law
Academic Qualifications
ATP (Postgraduate Diploma), Kenya School of Law, 2019
LLB (Hons), Moi University, School of Law, 2018
Professional Qualifications
Member, Law Society of Kenya
Frankline M. Otieno is a dispute resolution associate, recommended professional and committed to offering sustainable client-centred solutions to legal issues.Frankline is astute in commercial litigation, securities law, banking law, intellectual property litigation, public procurement, land law litigation, Judicial Review and Administrative law litigation, sports law, tax litigation, administrative law, consumer protection law, competition law and constitutional litigation.
Denis Mutugi specializes in Commercial Litigation and Alternative Dispute Resolution.
Denis graduated with a Bachelor of Laws, LLB (Hons) from The University of Nairobi in 2021 and was admitted to the Roll of Advocates of the High Court of Kenya in the year 2023.
Denis has amassed a considerable wealth of experience in conducting legal research on various complex legal matters touching on Commercial, Insurance, Employment and Insolvency law and bankruptcy.
