Kenya Ports Authority (KPA) has been stopped from awarding a licence to Portside Freight Terminals Limited a firm associated with Mombasa Governor Ali Joho for the development of a second grain bulk handling facility at the Port of Mombasa.
High Court judge Reuben Nyakundi suspended the plans pending the determination of a case filed by activist Okiya Omtatah, who argues that KPA has failed to undertake the procurement as required by the Constitution and provisions of the Public Procurement and Asset Disposal Act.
Mr Omtatah further says the approval for the development of the berth was made in contravention of KPA’s master plan, which anticipated that it be developed at either Dongo Kundu or Lamu Port.
He has faulted KPA’s board of directors saying they acted beyond their powers by approving wayleave and licence using powers of the accounting officer.
“Procurement decisions are a reserve of the respondent’s management specifically the accounting officer and not the board of directors and thus respondent’s board of directors’ decision is illegal and ultra vires,” he argues.
Documents filed in court show that KPA wrote to the Treasury Cabinet Secretary on March 11, 2021 seeking permission and approval to use a specially permitted procurement procedure to single source.
And on June 28, the board approved the use of the procurement procedure and awarded the contract to the Portside Freight Terminals Limited.
Mr Omtatah argued that KPA and Treasury employed the use of the procedure to avoid the competition of bidders and is being employed in favour of the firm associated with a prominent Mombasa politician.
The activist said KPA ignored proposals by Kilindini Terminals Ltd, Mombasa Grain Terminals Ltd, Kapa oil refinery, Africa Port and Terminals Ltd, Multiship International and Kipevu Inland Container EPZ Ltd or were never considered, thus unfairly locking them out of the process.
“That the procurement process employed by the respondents does not meet the minimum threshold established under Article 227 of the Constitution that requires that when a State organ or any other public entity contracts for goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective,” he said.
The case will be heard on August 27.
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