BY SSAM ALFAN.
Kenya Power has been given the greenlight to proceed with the tender for the supply of transformers, which has been blocked following a court case by local manufacturers who cited discrimination.
The Court of Appeal dismissed the case by five local assemblers paving the way for the power utility firm to proceed with the tender.
The local firms had accused KP of favouring foreign companies in the tender advertised in March this year by placing specifications, which would be impossible for local firms to meet.
Justices Daniel Musinga, Luka Kimaru and Grace Ngenye, however, dismissed the appeal saying the local firms were basically pushing Kenya Power to employ a restricted tender instead of an open one, a move that is against the letter and spirit of Public procurement and Disposal Act.
“We thus agree with the 1st respondent’s decision that agreeing with the appellants’ request would be akin to a student setting his/her own exam, which circumstance is not attainable by any proportion,” the judges said.
The judge said the local assemblers should have approached the procuring entity concerned and the Ministry of Energy and lobby for change of policy in regard to the requirement of the particular tender and not rushing to court.
“The upshot of our finding is that the appeal lacks merit and is hereby dismissed with costs to Pan African Transformers & Switch Gears ltd, Yocean (Group) ltd,” ruled the three judges.
They agreed with the High court decision that the three local companies unprocedurally sought to conflate the merits of the decision and the decision making process itself and thereby resulted in the clouding of the real issues in controversy which the High court judge was able to see through after evaluating the issues in dispute in the judicial review application.
The local companies also sought an order to compel KPLC to issue the tender for supply of distribution of transformers (manufacture only) to local manufacturers in compliance with the constitution and an order prohibiting Kenya power from further executing the tender No.KPI/9A.3/OT/028/21-22 for supply of distribution Transformers (Manufactures only).
KPLC opposed the application arguing that Justice Jairus Ngaah dismissed the companies application on the grounds that they failed to establish any illegality, irrationality, procedure impropriety and lack of proportionality in the decision.
Justice Ngaah said the companies were challenging the merits of the Board’s decision which was not a matter of consideration by the High court.
Before moving to the High court, the three local transformers manufacturers had filed a request before the Review Board seeking declaration that the said tender violated and fails short of previous provisions of Article 10 and 227 of the constitution and the public procurement and Asset Disposal Act.
In its decision, the Board responded to the three companies saying that the decision by KPLC to subject the tender to foreign manufacturers through open tendering method instead of restricted tendering method to local manufacturers was not in violation of the principle of legality, specifically the public procurement and Asset Disposal Act.
The Board also added that the choice of procurement method preferred by the KPLC was not subject to review by the Board as the Board lacks jurisdiction to so.
