Appellate court rules SGR construction flouted laws
A train on the SGR approaches the Mombasa terminus. The Court of Appeal has said Kenya Railways flouted the law in awarding the project to CRBC. FILE PHOTO | NATION MEDIA GROUP
What you need to know:
- Justices Martha Koome, Gatembu Kairu and Jamila Mohamed said it was not accurate, as was claimed KR that the engagement of China Road and Bridge Corporation as the contractor was as a result of dictation by the financing agreement.
The Court of Appeal has ruled that the construction of the standard gauge railway (SGR) failed to comply with the law.
In a judgment Friday, the judges of the Court of Appeal faulted Kenya Railways Corporation, saying as the procuring entity, it failed to comply with, and violated provisions of Article 227 (1) of the Constitution and Sections 6 (1) and 29, of the Public Procurement and Disposal Act, 2005 in the procurement of the SGR project.
Justices Martha Koome, Gatembu Kairu and Jamila Mohamed said it was not accurate, as was claimed KR that the engagement of China Road and Bridge Corporation (CRBC) as the contractor was as a result of dictation by the financing agreement.
“We conclude, therefore, that the engagement of CRBC was not an obligation arising from “negotiated grant or loan” agreement for purposes of Section 6 of the Act,” the judges said.
They added that the engagement of CRBC was not an obligation arising from “negotiated grant or loan” agreement for purposes of Section 6 of the Act.
Mr Okiya Omtatah together with Law Society of Kenya (LSK) had challenged the project arguing that it was single-sourced yet it is financed by Kenyans.
The activist argued that the project was “a 100 percent Kenyan funded venture” and therefore subject to the standards and procedures laid out for the procurement of goods and services by public entities in the Constitution and the statutes.
He said KR violated the provisions of the Constitution because it was not subjected to open tender by inviting bids for the supply of the goods and services as required under Article 227 of the Constitution.
LSK and Mr Omtatah further said there was no due diligence, there was no independent feasibility study and design of the project and there was a conflict of interest in the Government contracting CRBC to implement the project whose feasibility study and design it had intriguingly carried out for free.
He also faulted the government for ‘christening’ the contract as a government to government contract.
But KR and CRBC defended the contract saying GoK entered into a financing agreement with Exim Bank of China for a concessional and commercial loan to support the project.
In a judgement in 2014, Justice Isaac Lenaola, the High Court judge, dismissed the petitions and allowed the construction to continue unhindered. The Activist and LSK moved to the Court of Appeal to challenge the decision.
In the judgement Friday, the judges dismissed claims by Mr Omtatah that Parliament was by-passed and that environmental considerations were not considered have no merit.
