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BLOW TO HEINEKEN AS COURT UPHOLDS SH1.7 BILLION COMPENSATION AWARDED TO HEAR DISTRIBUTOR.

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BY SAM ALFAN.

Heineken has suffered the second blow after Court of Appeal upheld a decision directing the Dutch beer maker to pay a former distributor Maxam limited Sh1.7 billion for breach of contract seven years ago.

Appellate judges Pauline Nyamweya, Ali Aroni and John Mativo upheld decision stating that High Court judge James Makau did not err in awarding Maxam ltd the millions.

We affirm and uphold the award by the High Court to Maxam Ltd of special damages for loss of business of Kshs. 1,799,978,868.00 to be paid by Heineken E.A and Heineken B.V, arising from their repudiatory breach of the Kenya Distribution Agreement,” ruled the appellate judges in their decision.

The judges further affirmed and upheld the order by the High Court directing Maxam Ltd submit the Distributorship Agreement dated 21 March 2013 to the Stamp Duty Collector for assessment of the duty payable, upon which Maxam Ltd was to pay the amount in the normal manner within 7 days from the date of the judgment.

In their decision, judges further affirmed and upheld the declaration issued by the High Court that the Notice of Termination dated 27th January 2016 from Heineken E.A to Maxam Ltd was unlawful, irregular, unprocedural and therefore null and void.

Court further said Heineken E.A and Heineken B.V shall pay Maxam Ltd the costs of the trial in the High Court and of the consolidated appeals.

Heineken asserted that the court wrongfully concluded that it constructively terminated the distribution contract by appointing additional distributors even after the court had slapped sanctions on August 28, 2017.

The beer manufacturer had claim the distributor was not entitled to any explanation since the contracts were unequivocal that each of the contracted distributors could be compensated with €450,000 (Sh51 million then) once the business relationship was severed.

This is after Heineken International, filed an appeal against the decision made by Commercial Court Judge Aaron Makau on July 29, last year, awarding the local firm special damages to the tune of Sh1,799,868.

The brewer, which had been jointly sued with Heineken East Africa Import Company Ltd, has cried foul over what it terms as “excessive and unwarranted damages” claiming Maxam neither pleaded nor proved special damages for alleged loss of business.

“The Judge erred in law and in fact by holding that Maxam Ltd had a legitimate expectation that the distribution agreement would not be terminated,” the international firm said in court papers and argued that the court totally ignored the evidence tendered to justify the change in contract terms.

Heineken asserted that the court wrongfully concluded that it constructively terminated the distribution contract by appointing additional distributors even after the court had slapped sanctions on August 28, 2017.

“This is despite the fact that the injunctive order barring appointment of additional distributors was not reinstated,” the firm has explained.

MIRAA TRADERS CHALLENGE BAN IMPOSED ON MUGUKA BY GOVERNORS BY GOVERNORS SHARIF, MUNG’ARO AND MWADIME.

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Meru businessman Michael Makarina who has filed a case in court challenging decision by Mombasa, Kilifi and Taita Taveta Governors to ban Muguka.

BY SAM ALFAN.

Meru mugaka traders have moved to court to challenge a ban imposed by two coastal governors against the sale of the commodity.

Businessman Michael Makarina and Peter Agoro filed the case under certificate of urgency seeking orders to lift the ban imposed by Mombasa governor Abdullswamad Sherrif and his Kilifi counterpart Gideon Mung’aro, through executive orders.

The businessmen have sued Mombasa, Kilifi and Taita Taveta county governments, arguing that the decisions by the county bosses is unconstitutional, null and void.

They further seeks the court to declare the said executive order by the three Governors an irregularity, illegality and unconstitutional. They want the court to declare the said executive order as unconstitutional.

“Muguka is a variety of Miraa by taste, product and active ingredient which is still cathinone. The crop is Khat and Miraa as well as Muguka is the local name for Khat. The scheduled crop is Catha edulis which represents all varieties of Miraa which includes Muguka and any other crop that may emerge and contains Catha edulis,”Makarina said in an affidavit.

Further, they want the court to restrain the three devolved units from implementing the said executive orders.
Makarina argue that Muguka is not perceived as a drug and that is why it is legal in the country.

He further adds that there is no law separating Miraa from Muguka and no single law prohibiting its sale or consumption and despite the three counties having legitimate constitutional mandates to guarantee the safety of their citizens, they ought to have taken the legal procedures before undertaking the ban.

The two argue that the mandate of banning a product or service protected through an Act of Parliament is the sole power of the national government.
“County governments cannot choose to regulate a product or service by banning it altogether,” they argue.

The petitioners said according to Kenyan law, only Parliament through the National Assembly and Senate can declare a substance narcotic or psychotropic through legislation. The National Agency for the Campaign Against Drug Abuse (NACADA) has not declared Muguka a narcotic nor banned it.

The Crop (Miraa) Regulations 2021 recognizes both Miraa and Mugaka as legitimate crop in Kenya and the actions of the three Governors underscores the complex interplay between public health concerns and economic dependencies in Kenya,” the petition stated.

On 23rd May 2024, Mombasa Governor signed an execative order, effectively banning the entry, transportation, trade, and consumption of Muguka in the county. Through Executive order No.1 OF 2024, Kilifi Governor become the second coast region Governor to ban the entry, transportation, trade, and consumption of Muguka.

Further on 26th Nay 2024, Taita Taveta Governor also banned the entry, transportation, trade, and consumption of Muguka. They did not conduct public participation before banning Muguka.

CHINESE MAN IN COURT OVER SH5.5 MILLION FRAUD.

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Chinese businessman Zhu Wanbin before Milimani Chief court where he denied fraud charges. /PHOTO BY IRENE ONYANGO.

BY IRENE ONYANGO.

A Chinese citizen has been charged with Sh 5. 5Million fraud before a Nairobi Court.

Zhu Wanbin appeared before Milimani Chief Magistrate Susan Shitubi and denied the charges.

He is accused that on 29th and 30th December, 2023 at Equity bank limited Mama Ngina branch in Nairobi within Nairobi County, with intent to defraud, obtained Sh5. 5 million from Abdiaziz Abdullahi Mohamed.

He obtained the millions by falsely pretending that he was in a position to supply him with 25,000 pieces of Gotel mobile phones a fact he knew to be false.

Prosecution td the court that Wanbin is a foreigner and is a flight risk.

The defense lawyer however told the court that the accused person had been living in Kenya for 7 years and has lower chances of fleeting the country.

He was released on a bond of Sh 10Million.

WOMAN DENIES SH25 MILLION FRAUD CHARGES IN THE SUPPLY OF MOSQUITO NETS.

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Faith Mwikali Ndiwa before court where she denied forgery and obtaining money. /PHOTO BY IRENE ONYANGO.

BY IRENE ONYANGO.

A businesswoman has been charged with obtaining Sh 25Million and forging government documents.

Faith Mwikali Ndiwa appeared before Milimani Chief Magistrate Susan Shitumbi and denied the charges.

Ndiwa was charged with obtaining Sh5, 040,150 from Jude Olabayo Veracruz by falsely pretending that she had, through her companies- Ashley Dylan Ltd and Faizel Ltd, secured a tender to supply KEMSA with Long-Lasting Insecticidal Nets.

The charge stated that the said money was completing part of her bargain, an offence she allegedly committed on diverse dates between June and December, 2022 in Nairobi, with intent to defraud.

She was further charged with forging a Framework Contract No. IFT NO GF ATM MAL NFM-19/20-OIT- 004 between Kenya Medical Supplies Authority (KEMSA) and Ashley Dylan limited for the supply of Long-Lasting Insecticidal Nets (LLINs), purporting it to be genuine agreement entered into by Kemsa and her company.

The court heard that she committed the offence March 7, 2022 at unknown place and time within the country, with intent to defraud.

Ndiwa was also accused of uttering false documents related to the said KEMSA contract.

The prosecution told the court that it’s seeking for time to present an affidavit in opposition for her application to be released on bail.

The defense in response to the state told the court that if the prosecution was not ready to present the affidavit in court, should allow the Ndiwa to be released on a police bail of Sh200,000 pending the hearing of bail.

The court, however, noted that once the plea has been read, the accused person cannot be released on the police cash bail.

The court therefore ordered that the application on bond should be conversed before the trial Magistrate on 28th May.
Ndiwa will remain in custody pending the hearing of the application.

CONSTRUCTION FIRM DEMANDS HALF-A-BILLION SHILLING FROM DEVELOPER.

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The iconic FCB Mihrab in Hurlingham, Nairobi./PHOTO BY FCB Mihrab.

BY SAM ALFAN.

A leading firm behind the construction of the iconic FCB Mihrab building in Kilimani area has moved to court to block the owner from leasing or selling units until a pending debt of half-a-billion shillings is settled.

The building hosts a number of clients including Ahmednasir Abdullahi Advocates LLP.

Cementers limited wants the high court to issue an order restraining Mihrab Development limited from selling, transferring or charging, renting or registering any further dealings on LR No. Nairobi Block 19/145 (previously known as LR No. 1/1339 before conversion) and the developments, thereon pending settlement of Sh595,153,163.

Cementers ltd is leading firm of building and civil engineering contractors with over 40 years industry experience.

It has offices in Kenya and Uganda and operations throughout the greater Eastern Africa region.

In documents filed before Environment and Land Court, the firm says on or about June 28, 2013 the construction firm and Mihrab Development ltd entered into a contract for construction of office building.

Mihrab Development ltd was required to pay the amount certified in each interim payment certificate upon receipt of the Architect/Engineer’s certified payment certificate Pursuant to this provision, the architect issued certificates No. 35 and 37 which have remained unpaid in full to date. 

Further, pursuant to clause 14.7 (c) of the said contract, Mihrab Development ltd was required to pay the amount certified in the final payment within 14 days upon receipt of the final payment certificate.

Mihrab Development ltd has failed, refused, and or neglected to pay Sh. 595,153,163.91 being the total amount due under interim payment certificates No. 35 and 37 and the final account payment.

The construction firm says the developer is yet to compensate cementers ltd for work done on the suit property having failed to settle certificates Nos. 35 and 37 and the final account payment despite successful completion of construction and taking full possession thereof.

The total amount owing on account of Mihrab’s failure to fully pay for the developments constructed on the suit property is Sh. 595,153,163.9. Cementers ltd is apprehensive that the Mihrab Development intends to wholly sell the developments on the suit property being the office building known as FCB Mihrab.

The construction firm having successfully developed the suit property, it has a legal and beneficial interest in the said property and the developments.

“There is reasonably apprehensive that Mihrab has commenced a process in earnest to identify suitable purchasers of the remaining portions of the development on the suit property with a view to selling it to such purchasers so as to defeat any interest that the Plaintiff has in the suit property,” company told the court.

The company through it director Dipak Halal argues that it is necessary that the suit property be preserved by the court as Mihrab Development ltd is engaged in a scheme to frustrate and defeat Cementers’s interest in the property and the developments undertaken thereon.

Mihrab Development ltd has no other known assets or place of business in Kenya upon which execution of any decree can be levied or the debt recovery process may be undertaken successfully according to Cementers ltd.

“On account of Mihrab’s willful and unconscionable refusal to fully settle the outstanding interim payment certificates and final account aforesaid the Cementers ltd has experienced extreme cash flow distress thereby jeopardizing ongoing construction projects and leading to default in Cementers’s financial obligations including loan facilities granted by NCBA Bank Plc.

According to the construction argues that there is no suit pending and that there have been no other previous proceedings in any Court between the same parties hm over the same subject matter save for the ongoing debt recovery proceedings sought to be frustrated and defeated by Mihrab Development ltd through sale of the remaining portions.

ATTORNEY GENERAL MUTURI SEES NO AGENCY ON CASE CHALLENGING PANDEMIC TREATY. 

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BY SAM ALFAN. 

The government says an activist seeking the fast-tracking of appeal challenging Kenya’s bid to ratify the Pandemic Treaty and the intended Amendments to the International Health Regulations, has not shown the urgency of the matter.

In response to the application by Joseph Aura, Attorney General Justin Muturi said the activist has not demonstrated to the court the circumstances of the urgency and why the matter should be prioritized.

In the application supported by the Ministry of Health, Muturi said Aura has also failed to explain to the court why he has omitted to pursue his application seeking similar orders before the High Court. 

This is despite filing a similar application in the high court and state is a party, Muturi said. 

“The urgency in our view is not justifiable,” says Victor Ojiombo for attorney General. 

 Ojiambo submitted that the totality of the circumstances of the case lacks merits for the issuance of the orders sought.

The state submitted that the treaty is still at the initial stages of the treaty making process.

“It is the Respondents Humble Submission that the Principles for issuance of a Conservatory orders are not well settled. The first Principle is that the Applicant must first satisfy to this Honourable Court is that they should have an arguable appeal,” says Attorney General.

Ojiambo further argues that the Human rights activist has failed to satisfy to the court that they have an arguable appeal. 

In his application through lawyer Harrison Kinyanjui, Aura urged the appellate court to issue a conservatory order prohibiting the state, by themselves, their servants, emissaries or agents, from signing, endorsing, acceding to, ratifying, or committing Kenya in any way or to give effect to the Pandemic Treaty and the amendments to the International Health Regulations and any aspect.

He is apprehensive that this might happen during the 77th World Health Assembly meeting in Geneva, Switzerland between 27th May 2024 and 1st June 2024.

He claimed that the instruments were negotiated in deep secrecy (with the document to be ratified being availed to the public only on when replying to him on April 24, 2024), which contains unconstitutional provisions and in sum would be inimical to Kenya’s Sovereignty.

JUDGES IN DILEMA OVER ‘IRON’ RULE THAT DISCRIMINATES COLLEAGUES.

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Lady Justice Jacqueline Kamau. /PHOTO BY S.A.N.

BY THOMAS KARIUKI
EDITOR-IN-CHIEF.

High Court Judge Jacqueline Kamau continues to suffer blows from colleague judges with today, another dismissing her pursuit to block judge’s election to the Judicial Service Commission.

Justice Enock Mwita saw no merit in her pursuit to stop the election of the High Court Representative to the JSC saying that non-of her rights and fundamental freedoms have been violated.

Justice Jacqueline Kamau’s suit comes hot in the heels of the election board barring her from participating in the election for the Judges’ representative.

In his arguement, Justice Jacqueline Kamau holds that in the event a man is elected a representative of the high court, constitutionally, a woman should be elected to represent the magistrate court. By the ruling of the KMJA, a woman is currently the representative of the Magistrates in the JSC and her term has not expired. The high court therefore according to KMJA, should elect a man as a representative of the high court.

Accordingly, the magistrates will be expected to vote in a woman, again, to represent them in the JSC and the cycle will continue thereby locking out any woman at whatever stage to ever in the foreseeable future become a representative of the high court and any man at whatever stage becoming a representative of the magistrates. Unless, the election of both representatives, magistrate and high court, are done at the same time.

“I find that KMJA’s decision did not discriminate on grounds of gender. The constitution itself dictates that there be one woman and a man and since the Magistrates’ representative is a woman and still serving, the representative for Judges has to be a man representative as required under Article 171 (2)(d) as read with Article 27 of the Constitution, ” ruled Judge Mwita while dismissing colleague application.

Judge Jacqueline Kamau had moved to court seeking the court to issue conservatory orders to stay or suspend the election for the position of High Court Judge Representative pending hearing and determination of her application challenging the said election.

The judge further sought the court to declare the decision by Kenya Judges and Magistrates Association set out in its executive director’s decision dated 6th April 2024 and its National Council’s letter dated 12th April 2024 is unconstitutional, null and void.

KMJA opposed the judge application through a replying affidavit sworn by executive director Daniel Mayabi arguing that under Article 171 (2) (d) of the constitution, JSC should have one High Court Judge and one Magistrate, one a woman and one a man elected by members.

KMJA officials lead by association’s President Stephen Radido told the court that they were conscious of the unfortunate situation presented by article 171(2)(d) of the Constitution on which rule 4.2 is anchored, and in order to provide some measure of solution, KMJA has formulated rule 4.3 that requires that those to be elected would have to be of different gender from those who were serving immediately before the vacancies.

Judge Radido argued that the argument by Judge Kamau and interested parties that the Court could order that election of the male representative be held in abeyance until the female representative’s term expires so that elections for the two positions can take place at the same time. This argument, though attractive, lacked constitutional backing.

KMJA told the court that the term the representatives to the JSC having been set by the Constitution at 5 years with eligibility for re-election, the court cannot legitimately shorten or extend the term. Upon a representative’s term expiring, members have a right to elect their representative and the Court cannot purport to interpret the Constitution in a manner that would curtail Judges’ or magistrates’ right to elect their representative to the JSC.

“The situation Judge Jacqueline Kamau finds herself in is not the best at any rate. However, the duty of the Court is to interpret the Constitution in a manner that advances its purposes, gives effect to its intents and illuminate its contents,” KMJA told the court.

Justice Kamau told the court that she submitted her nomination papers endorsed by 29 judges but on 6th of April KMJA executive director set to members a list of validly nominated candidates and a separate list of unsuccessful candidates with the reasons.

The judge was informed she was unsuccessful because since KMJA had a female Magistrate representative to JSC whose term is running. The judge was aggrieved by the decision and challenged it in court.

Judge Kamau that because the vacancies of the High Court Judge Representative and that of the magistrate representative fall vacant at different times, it is unlikely that a female Judge will be eligible to contest for that position in the foreseeable future.

The Judge argued that she was disqualified because she is a woman which is discriminatory; a violation of her fundamental rights and a contravention of article 27 of the Constitution. She argues that the decision also contravenes her rights under articles 36 and 38 (2) (a) (3) (c) of the Constitution.

She further argues that at the time she lodged her appeal, the respondent’s dispute resolution committee was not properly constituted and the national council’s decision was also null and void.

It was the judge’s view, that the decision further violates and threatens to violate her right to be a candidate for a position in a public office and, if elected, to occupy the office. The decision also deprives judges of the High Court the right to elect a representative of their choice and has a consequence of permanently hindering competitive politics in that election.

CHIEF JUSTICE MARTHA KOOME TO CHANGE THE NAMES OF 12 GENDER COURTS COUNTRYWIDE.

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Chief Justice Martha Koome.

BY SAM ALFAN & THOMAS KARIUKI.

Chief Justice Martha Koome has endorsed a proposal to change the name of the gender court to reflect a survivor centered approach.

As per recommendation of the Committee on Definition of Case Types for Sexual and Gender Based Violence, Chief Justice Koome validated the name Gender Justice Court (Mahakama ya Haki ya Kijinsia).

According the Chief Justice, the renaming of the court places the rights, needs, safety, dignity and well-being of survivors at the centre of all prevention and response measures concerning SGBV.

She said that the overarching aim is to have specialised courts designed to address cases of Sexual and Gender-Based Violence (SGBV) efficiently and sensitively.

These courts are a response to the pressing need for a justice system that is informed by the traumatic impacts of SGBV and prioritises the safety, dignity and rights of survivors and those affected by these crimes.

The goal is for the 12 gazetted Gender Justice Courts countrywide to be equipped with facilities that ensure the comfort and safety of survivors.

The Judiciary is also committed to facilitating access to comprehensive support services for survivors, including legal aid, counselling, medical care and social support. These services are crucial for helping survivors recover while they navigate the legal process.

It is a matter of priority to implement the Social Transformation through Access to Justice (STAJ) SGBV Strategy. Magistrates and court staff working in these courts will receive specialised training on SGBV issues.

This training will cover legal aspects, sensitivity in handling survivors, understanding the dynamics of abuse, and the importance of a supportive court environment.

The aim is also for the court personnel to receive requisite counselling before, during and after hearing these matters.
The Gender Justice Courts will prioritise the confidentiality and privacy of the proceedings to protect the identity and dignity of survivors.

These courts are expected to deliver on the Judiciary’s promise to ensure people-focused justice in collaboration with other critical actors under the National Council on the Administration of Justice (NCAJ).
Survivors should not be re-victimised through judicial processes.

MAN CHALLENGES SH1 BILLION TENDER FOR UPGRADE OF ROADS AFTER IT WAS AWARDED TO THE HIGHEST BIDDER.

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BY SAM ALFAN.

A businessman has moved to court seeking an injunction to restrain Kenya Rural Roads Authority (KeRRA) from awarding a Sh1 billion tender to a Chinese firm arguing that the tendering process was flawed.

Francis Kinyua Mwangi alleges in the court documents that the tendering process for the tender to upgrade several roads in Kisii County to bitumen standards, was conducted in violation of the Public Procurement and Asset Disposal Act.

The roads include Metembe-Owalo-Rioma, Marani-Ng’enyi/Tin’ga Bobaracho Ragogo Kegogi Nyakoora Rioma Gesieka – Nyaore Marani Roads.

Through lawyer Simon Mburu, the contractor told the court KeRRA invited bids from eligible construction companies for the completion of stalled road projects under Tender No. RWC 652, as part of the Roads 10,000 Program for the 2023/2024 financial year.

“I am is apprehensive of the conduct of KeRRA in shaping the tender process to potentially favor Shengli Construction,” Kinyua said in the court documents.

Kinyua perceives the intended re-evaluation of the bids, as communicated in the KeRRA’s letter dated 8th April 2024, to be insincere and merely cosmetic.

The lawyer said the re-evaluation process is designed solely to address the observations made by the Public Procurement Review Board, rather than genuinely ensuring fairness and transparency in the procurement process.

“The conduct of KeRRA amounts gross violation of Articles 10 and 227 (1) of the Constitution which outlines the national values and principles of governance, including integrity, transparency, and accountability and KeRRA has failed to uphold these principles by engaging in practices that undermine fair competition and transparency in the procurement process,” Kinyua told the court.

The project was to be financed by the Government of Kenya through the Development Vote, with an allocation of Sh100 million in the financial year 2023-2024.

However, he says the procurement process, including the invitation to tender, the evaluation of bids and the award of the contract, has been fraught with irregularities, non-compliance with the Act and blatant disregard for constitutional principles on prudent use of public resources.

The petitioner says KeRRA intends to award the tender to Shengli Engineering Construction (Group) Co, limited despite the there being another responsive bid by another company by the name Guangxi Hydroelectric Company.

He said the difference of the tender amount is more than Sh billion and awarding the tender to Shengli will result into the direct loss of taxpayer’s money.

“KeRRA has consistently during the procurement process of tender No RWC 652 used means and mechanisms of favoritism with the intention of giving unfair advantage to the 4th Respondent in an endeavor to ensure that the 4m Respondent is awarded the tender which is a violation of the Constitution and Public Procurement and Disposal Act,” says the contractor.

Lawyer Mburu revealed that in a letter dated 3rd April 2024 the Public Procurement Regulatory Authority while addressing the director General of the KeRRA made a litany of observation of constitutional and statutory violations in respect to the notification of award of tender to the Shengli Engineering which led to the decision to reevaluate the tender based on the observations raised by the Public Procurement Regulatory Authority (PPRA).

He adds that of concern, was the observation that a minor arithmetic error had led to the disqualification of an otherwise responsive bid from Guanxi Hydroelectric Limited. a company that had in fact deducted Sh 250,000.00 from its total bid amount and which decision was in contravention of Regulation 79 (2) (b) and Section 82 of the Public Procurement and Assets Disposal Act.

He adds that vide a letter dated 8th April 2024,KeRRA communicated its decision to re-evaluate the tender in line with the observation of the Public Procurement Regulatory Authority.

However the petitioner is apprehensive that the said exercise will not reflect the principles enshrined in the constitution and the Public Procurement and Assets Disposal Act and KeRRA is keen on awarding the tender to shengli despite the difference between the lowest responsive bid being over Sh 1 billion and which will result to loss of public funds through corrupt practices.

KeRRA in the letter dated 8th April 2024 has not addressed the issues of criminality and conspiracy noted by the director general of Public Procurement Regulatory Authority and therefore the same staff that were involved in the previous conspiracy are expected to arrive at a different decision which is not possible.

Article 227(1), which mandates that public procurement should be conducted in a manner that is fair, equitable, transparent, competitive, and cost-effective and KeRRA’s actions have compromised the integrity of the procurement process, allowing collusion and favoritism, thereby defrauding Kenyan taxpayers and violating the legal and ethical standards required by the Constitution.

The Public Procurement Regulation Authority the body with jurisdiction to deal with the matters relating to the tendering process established under Section 9 of the Public Procurement and Assets Disposal Act has through a letter dated 20th March 2024 indicated there exists a criminal enterprise within the staff of KeRRA.

and t

The same has not been either prosecuted, nor confirmation of investigations having been commenced by the Ministry of Public works in respect to the conduct of KeRRA leaves this court as the only hope left for Kenyans in combating the corrupt practices that perverse the tendering process in respect to tender no RWC 652.

The actions of KeRRA amounts to violation of Article 46 (1), (c) which constitutional provision protects the economic interests of consumers of goods and services and more so in relation to services being rendered by the Shengli Construction upon award of tender by KeRRA.

WHY OMTATAH HAS CHALLENGED FINANCE BILL, 2024.

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Busia Senator Okiyah Omtatah.

BY SAM ALFAN.

Busia Senator Okiyah Omtatah wants the High Court to stop the ongoing public participation on the Finance Bill 2024.

In a case filed under certificate of urgency, Omtatah further wants the court to certify that the petition raises substantial questions of law and the matter be referred to Chief Justice Martha Koome for appointment of a bench to determine the petition.

“This matter is extremely urgent because the Finance Bill 2024, which was published in Nairobi on 9th May, 2024, in a Special Issue of the Kenya Gazette (Supplement No. 102 of 2024), is already undergoing public participation as per the National Assembly’s public participation advert dated 15th May, 2024,” he said.

The legislator said if the court does not intervene and suspend the process, both the application and the petition will be lost because the unlawful and unconstitutional Bill will be approved by Parliament and signed into law by the President to become the Finance Act, 2024.

“Unless this court intervenes, there is no remedy when the legislative process is complete and the unlawful conduct in the course of the legislative process will by then have achieved its object especially because every statute enjoys presumption of constitutionality,” says Omtatah.

The Busia senator said the Bill has been tabled prematurely because there is no approved fiscal framework for the Financial Year 2024/2025, which it is supposed to implement.

He said the approved fiscal framework will only come to life with the enactment, with public participation, of the Appropriation Act. 2024.

“The resulting harm would be substantial and challenging to reverse, considering economic implications and potential arguments that government operations could be disrupted,” he said.

Omtatah said it is only after Parliament has procedurally enacted the Appropriation Act, 2024, that the Finance Bill, 2024, that it can lawfully and constitutionally be introduced in the National Assembly.

“So, in essence there is no Finance Bill, 2024, without the fiscal framework contained in the Appropriations Act, ‪2024. 6‬. Whereas the Appropriations Bill, 2024, has not been published, considered with public participation, and enacted into law, the Finance Bill, 2024 (National Assembly Bills No. 30) (hereinafter, “the Bill”) which, among others, proposes a raft of tax changes geared towards raising revenue to finance the national government’s budget for the financial year 2023/2024, was published in Nairobi on 9th May. 2024, in a Special Issue of the Kenya Gazette (Supplement No. 102 of 2024),” he says.

He pointed out that, in passing the Finance Bill, Section 39A(4)(a) of the Public Finance Management Act (Cap. 412A) (PFMA) requires the National Assembly to ensure that the total amount of revenue raised is consistent with the approved fiscal framework and reiterate that, currently, there is no approved fiscal framework for the FY 2024/2025.

He adds that the approved fiscal framework for FY 2024/2025 will come into effect with the signing into law of the Appropriations Bill, 2024, to become the Appropriations Act, 2024.

“It is both unlawful and unconstitutional that the Finance Bill, 2024 is based on the FY 2024/2025 budget estimates of revenue, which were submitted to the National Assembly on 30th April, 2024, by the Cabinet Secretary,” says the senator.