LSK plans to derail project despite House team approval

The Law Society of Kenya is seeking to place fresh hurdles in the path of the planned standard gauge railway days after Parliament’s Public Investments Committee gave the project a conditional approval.

LSK has gone to the High Court, where it is asking a judge to have the contract awarded to China Road and Bridge Corporation (CRBC), which is wholly owned by the Chinese government, quashed.

It is also seeking conservatory orders restraining the Kenya Railways Corporation and the Attorney-General from proceeding with execution of any contract regarding the planned railway line.

The case, which is scheduled for hearing before Justice David Majanja on Wednesday, could present a complex legal challenge for the government.

It could also force State House to reconsider plans to have the financing agreement signed when Chinese Prime Minister Li Keqiang makes a three-day state visit starting this Friday.

It is understood that the financing agreement is among 18 projects the Kenya Government is planning to sign with the Chinese Premier on his first visit to the country.

INDEPENDENT CONSULTANT

The Public Investments Committee cleared the procurement of the project on the basis that it “has so far been procured within the law and the government would not suffer any loss because the financing agreement with the Chinese has not been signed”.

The committee, led by Eldas MP Adan Keynan, said the national Treasury should finalise the negotiations on the financing agreement to pave way for the implementation of Phase I of the project covering Mombasa to Nairobi.

It said the government should proceed on condition that it gets an independent consultant to review the design and oversee the construction. That report will be lined up for debate when the National Assembly resumes its sittings.

In the court case, LSK has named the Kenya Railways Corporation and the Attorney-General as the first and second respondents.

The lawyers’ body is seeking the conservatory orders pending hearing and determination of its application.

LSK charges that “the manner of procurement of the construction of the standard gauge railway herein was in utter contravention of the provisions of Articles 10, 42, 69, 201 and 227 of the Constitution of Kenya.”

According to the application, by a letter dated July 10, 2012, KRC awarded China Road and Bridge Corporation a contract for the construction of the civil works of Mombasa-Nairobi SGR project for the amount of Sh220 billion.

LSK further claims that the manner of procurement of the construction of the SGR was in contravention of the Constitution as KRC ought to comply with the provisions of the Public Procurement and Disposal Act when contracting for goods and services.

“The first respondent (KRC) ought to have ensured that there was public participation in the procurement of the construction of SGR as it involved the expenditure of colossal amounts of public funds,” reads part of the application.

LSK, which filed the application on Friday, claims the Chinese company does not have the necessary qualifications, capacity, experience, resources equipment and facilities to construct the railway.

The lawyers’ body claims there was a conflict of interest in the procurement process as CRBC was the only party commissioned to conduct a feasibility study for the rail’s construction.

HIGHER COSTS

It further claims that CRCB was solely responsible for determining the contract price and was the sole tenderer.

“The whole procurement process was tailor-made for an award of the contract by the first respondent to CRBC to the exclusion of all others contrary to the Constitution,” reads  the application.

According to the petitioner, the cost of construction of the railway is 49 per cent higher than the cost of construction of a comparative electrically powered railway gauge, which is more economical and environmentally friendly.

LSK claims Ethiopia has entered into an agreement for the construction of an electrically powered railway system at a much lower cost compared to the construction of Nairobi-Mombasa-Malaba railway line.

The society’s secretary, Mr Apollo Mboya, in his supporting affidavit, says LSK had received numerous complaints from its members and the public regarding the award of the contract.

Mr Mboya says the LSK, after detailed evaluation of the documents received from its members and complaints from the public, decided to file the petition so that the award of the contract can be quashed.

“The construction of the railway is extremely important for the economic development of the country and it is vital that it should be procured in accordance with the law,” he said.

LSK claims the AG has rendered his legal opinion advising on the “illegality and unconstitutionality” of the procurement and the award of the tender by KRC to CRBC.

Among the orders being sought by LSK is a declaration that the purported withdrawal of the award, and saying it is a government to government contract, is unlawful.