Engineer in row with SGR firm over Sh44bn contract

A legal battle is looming between the Standard Gauge Railway contractor and a Kenyan engineer over claims of underpayment by almost Sh400 million after he was allegedly made to sign a contract written in Chinese that his lawyers are now disowning.
China Road and Bridge Corporation (CRBC) entered into an agreement with Mr Cleophas Simiyu Nabangi to work on the electrical supply system that was part of a communication network for the Mombasa-Nairobi SGR. But his lawyers now allege the Kenyan engineer was duped after being made to sign “a purported contract with the contractor which is in a tongue that is unintelligible and for which a paltry sum of Sh500,000 was tendered to him”.

APPROVALS
The Sunday Nation obtained a copy of the controversial contract which the engineer’s lawyers claim breached his rights, including being written in a foreign language and fair compensation.
The engineer, through his lawyers — Arnold Otundo and Associates — also claims he was sidelined and denied access to the site after the start of the critical project that facilitates the movement of trains, yet his certificate continued to be retained and used for approvals with the regulators without his input.

REMUNERATIONS
The lawyers have also since written to the Chinese main railway builder, the China Communications and Construction Company (CCCC), which had contracted CRBC, threatening legal action unless the engineer is paid about Sh400 million and his certificate released. The letter is copied to the Transport ministry, Kenya Railways Corporation, the Energy Regulatory Commission and the Engineers Board of Kenya.
“It has since emerged that the Bills of Quantities for the Communications signal system and the electrical supply signal were a total of $441,655,285.37 (Sh44 billion). We are on instructions from our client demanding that you avail our client his fair professional remuneration,” read the letter in part.

ENGAGEMENT
The Employment Act prescribes that where an employee is illiterate or cannot understand the language in which the contract is written, or the provisions of the contract of service, the employer must have the contract explained to the employee in a language that the employee understands.
Apart from giving the railway contractor 14 days (which have since expired) beyond which a legal action will be taken against it, the lawyers base their assessed remuneration on the 2013, Engineers Board of Kenya’s scale of fees and conditions of engagement.

PROFESSIONAL
EBK guidelines provide that fees paid to consulting engineers for engineering systems should be remunerated at between 1 to 1.5 per cent of the cost of project. Structural engineers are paid the highest at between 3 to 4.5 per cent.
The engineers’ umbrella body prescribe that professional engineering fees must reflect the “value of services received by the client and not merely the consulting engineer's cost of providing services”.
Mr Simiyu argues through his lawyers that the contractor merely used his credentials to “sanitise” the works and later ignored his professional input including by denying him access to the sites where the electrical installations were being done until the project was commissioned and a report written to ERC, the regulator.

INSTALLATIONS
The action by the contractor to sideline him from the project after his certificates were used to seek approval has also put into question how the installations were certified, who approved them and how much the cost was.
The secrecy surrounding the operations of the contract now places the railway builder at odds to justify whether it complied to the Kenyan standards or whether the taxpayer received value for money in the project whose true cost the estranged consulting engineer now questions.

COMPENSATION
Documents show the project was certified complete on May 30, 2017, a month before the Madaraka Express was launched by President Uhuru Kenyatta.
“Our client is a Kenyan by birth. A Kenyan possessing the highest professional qualification insofar as his licence is concerned cannot be paid a measly Sh500,000 whereas your contractor pockets a colossal Sh44 billion or thereabouts at the expense of Kenyan tax payers for a public utility. We are raising issues of fair compensation here but in a wider scheme of things we are also raising issues of compliance accountability and financial probity,” the lawyers wrote.

COMPLAINT
It remains unclear why the engineer signed the documents he had not been able to read.
The signature on the document written in Chinese has dealt a huge blow to his career since he claims the contractor refused to release his licence number A1 003286 which essentially bars him from taking other jobs hence the flurry of complaint letters.
The lawyers also claim, in a written reminder, that CRBC and the Kenyan authorities have ignored the complaint, leaving the engineer helpless.

SABOTAGE
“Our client has written to you severally regarding his licence which continues to be held by this contractor. He is unable to bid competitively for any other works and you continue to be non-responsive and pedantic in your approach. This amounts to economic sabotage and as the Regulator, you have failed to protect the larger interests of the Kenyan Public,” read the letter addressed to the Energy Regulator on September 19.
ERC Director General Pavel Oimeke acknowledged receipt of the complaint from the engineer against the railway contractor but said the letter was not directly addressed to the regulator.

INVESTIGATE
“For me to investigate and act, the letter must be addressed to me or ERC, not copied to,” Mr Oimeke told the Sunday Nation.
ERC is also accused of not granting licensing for the electrical supply since it was 35Kilo Volts as required by the Energy Act.
The Chinese contractors had not responded to enquiries from the Sunday Nation since October 19, with a reminder emailed on Friday. The questions were on the allegations that the Kenyan engineer was given a contract written in Mandarin, he was paid Sh500,000 instead of Sh440 million, he was never allowed access to the site despite being listed as the main engineer, his certificate has been withheld and is being used for approvals without his input.

CHANNELS
However, last week CCCC Spokesperson Steven Zhao said there are established channels for addressing such complaints and he was not aware of Mr Simiyu’s case. He also referred us to CRBC for a detailed response.
“Are you his lawyer? Why are you concerned about it? We have our channels for addressing disputes which is a usual occurrence in many contracts. I don’t know about that case,” Mr Zhao said.