BY SAM ALFAN.
The High Court has suspended the decision by Kenya Ports Authority single awardin license to Portside Freight Terminals Limited to develop a second Grain Bulk Handling facility at the Mombasa Port.
Justice Reuben Nyakundi suspended the implementation, procurement and award of license to Portside Freight Terminals Ltd, pending the determination of a case filed by Okiya Omtatah.
“A temporary conservatory order and be hereby issued staying the implementation, procurement and award of license by the 1 respondent (KPA) for the development of the second bulk grain handling facility pursuant to the 2 Respondent (Ministry of National Treasury and Planning) approval dated June 28, 2021 granting KPA’s for the use of specially Permitted Procurement Procedure for this purpose,” ordered judge Nyakundi.
Omtatah told the court that the procurement process undertaken by the KPA’s board of directors is in contravention of the constitution, the relevant public procurement laws and its own master plan.
“Unless the court grants a conservatory order, there is a likelihood that KPA and Treasury shall proceed to enter into a formal contract with Portside Freight Terminals Ltd and permit them a license pursuant to a flawed procurement process,” he told the court.
According to Omtatah, KPA through its port master plan 2019-2047 indicated that a second bulk grain bulk handling facility is required by 2023 and the master plan envisioned the new bulk grain berth to be developed at Dongo Kundu or Lamu Port.
He adds that KPA’s board of Directors acting ultra vires without authority and in glaring violation of the law and procedures, purported to review and approve the grant of way leave and license to operate a second bulk grain handling facility at the port of Mombasa.
He added that in a letter dated March 11, 2021 addressed to Treasury CS and pursuant to section 114A of the Public Procurement and Asset Disposal Act of 2015, KPA sought permission and approval to use specially permitted procurement procedure to award the contract to the Portside Freight Terminals Ltd.
And on June 28, 2021 KPA approved the use specially permitted procurement procedure to single handedly award the contract to the Portside Freight Terminals Limited.
“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.
He added that it is evidently clear that KPA and Treasury have employed the use of the procedure to avoid competition of bidders and is being employed in favor of Portside Freight Terminals Ltd.
The activist said 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 were ignored and never considered, thus unfairly locking them out of the process.
He further argued that the grant of license to the Portside Freight Terminals Ltd is based on a location that is not approved in the KPA’s master plan of 2018-2047 which plan is yet to be reviewed by the Treasury to accommodate any changes, if at all any.
He added that the procurement process applied by the KPA’S Board does not meet the threshold established under Article 227 of the constitution that requires 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.
