Court of Appeal Strikes Out KPA Appeal in Sh362 Million Forklifts Tender Dispute

The Court of Appeal has struck out an appeal by the Kenya Ports Authority challenging a High Court ruling that quashed the award of a Sh362 million tender for the supply and maintenance of 15 forklift trucks. The appellate court found the appeal was filed one day late, leaving the lower court decision intact.

The procurement dispute involved Finnish manufacturer Kalmar Finland Oy, which lost the tender to Brookwood Technical Limited and Autobikes Ltd. Kalmar was disqualified for failing to submit audited accounts for 2024 and 2025. The company challenged the decision, arguing the requirement did not apply to it as an original equipment manufacturer.

The High Court quashed the Public Procurement Administrative Review Board’s finding that Brookwood was eligible. It ruled that Brookwood had not been prequalified for the restricted tender limited to four firms whose equipment was already in use at the port.

KPA appealed the High Court judgment. However, the Court of Appeal determined that the statutory seven-day deadline under the Public Procurement and Asset Disposal Act had been missed. The authority argued it had requested proceedings and faced registry delays, but the judges held that procurement appeals are governed by strict timelines that cannot be extended.

The ruling reaffirms that jurisdiction in procurement matters is time-bound. KPA’s attempt to invoke equitable principles and constitutional provisions on substantive justice was rejected. The court emphasised that statutory deadlines form the basis of jurisdiction and must be strictly observed.

The tender was for supply, testing, and commissioning of new forklift trucks at the port of Mombasa. Lot 1 was awarded to Brookwood for approximately Sh362 million. The decision could require fresh procurement processes, potentially delaying equipment modernisation at the port.

Kenya Ports Authority has faced several procurement challenges in recent years. The latest setback highlights the importance of strict adherence to timelines in public procurement. For the port, reliable cargo handling equipment is critical for efficiency and competitiveness.

The case underscores ongoing tensions in public procurement between speed, compliance, and value for money. Strict judicial enforcement of timelines aims to promote transparency but can sometimes lead to repeated processes and delays in project implementation.