President Uhuru Kenyatta has waded into the tendering controversy of the Sh200 billion High Grand Falls Dam, criticising the High Court ruling that quashed the contract.
The mega project — the single largest government undertaking after the standard gauge railway — has been dogged by tendering disputes since February 2017, the latest being a ruling that cancelled the contract awarded to a consortium of British and Turkish firms.
The President said the implementation of the project had been delayed unnecessarily for years by courts, “whose rulings are against the interest of Kenyan public”.
He spoke while addressing judges during the launch of the 2018/2019 "State of Judiciary and Administration of Justice Annual Report" at the Supreme Court, a week after Justice John Mativo delivered the ruling cancelling the contract.
The case pitted two State agencies — the National Irrigation Board (NIB), which had sued the Public Procurement Administrative Review Board (PPARB) — but the aggrieved parties have vowed to contest the ruling.
The contract to build the dam in Kitui and Tharaka Nithi counties had been won competitively by London-based firms GBM Engineering and ERG Consortium, but NIB declined to award the tender to the bidder despite numerous orders by PPARB.
The highly anticipated ruling was delivered as President Kenyatta prepared to meet foreign investors during the inaugural UK — Africa Investment Summit in London, which was hosted by British Prime Minister Boris Johnson.
The Nation established that the executives of the British and Turkish firms that had won the contract were among participants in the summit.
President Kenyatta told the judges that judicial independence is established in the public interest to serve Kenyans, and as they exercise it, public interest must be the overriding criteria.
“The unintended consequences of such injunctions is that it compromises the efficacy of the State to help create more jobs and opportunities for our people in a competitive no-holds-barred world,” the President said in an apparent reference to the dam project ruling.
He said programmes that would spur the economy are stuck in limbo due to unfavourable injunctions and high cost of litigations, “as many projects are routinely suspended and their implementation delayed for years pending adjudication in courts”.
“Our nation is missing out on opportunities that are also going to other countries,” he said, adding that court rulings must be in public interest.
Justice Mativo ruled that the irrigation board had demonstrated that PPARB acted unlawfully by failing to uphold the precise requirements of the tender documents and provisions of the law.
"It is unlawful for PPARB to pass a decision awarding a tender to a bidder in circumstances where there is no full and complete evaluation of the bidder's proposal and proper compliance with the bid requirements," the judge said.
On March 21 last year, the board had directed NIB to proceed and complete the procurement process, including making the award within 14 days. The board considered the tender documents, evaluation reports and all the documents supplied in arriving at its decision.
However, the investors, through Nairobi lawyer Wilfred Nyamu, said they would contest the ruling at the Court of Appeal because it failed to address the specific issues raised in the matter.
Mr Nyamu said Justice Mativo’s ruling referred to the PPARB’s decisions of 2018 which were never contested within the 14 days stipulated in law and which, therefore, the High Court had no jurisdiction over.
“We’re appealing the ruling because the court cannot purport to overturn decisions of the procurement review board which were never contested by the National Irrigation Board more than a year ago” the lawyer told the Nation Sunday.
The Attorney-General office, which acted for PPARB in the matter, also it will contest the ruling which it said undermines the authority and credibility of the review board as the oversight body in procurement matters.
According to State Counsel Edward Munene Wanjohi, the AG is waiting for instructions from the PPARB to appeal the ruling.
“I am aware the other party (the bidders) have appealed but I am certain the Attorney-General will be enjoined in that suit because it sets a bad precedent in compliance of PPARB orders and raises fundamental issues of law” said Mr Wanjohi.
The tender dispute, which has dragged on since 2017, has raised doubts about the impartiality of NIB to procure the firm that will build the dam and may cost the country billions of shillings in possible litigation at the International Court of Arbitration.
The British consortium was among seven prequalified international construction firms – five of them Chinese – which participated in the bidding process.
The High Grand Falls Dam Project is the single largest undertaking by the government after the standard gauge railway, and is part of the Sh1.5 trillion Lamu Port-South Sudan-Ethiopia Transport Corridor project.
In terms of size, the proposed water reservoir could be Africa's second largest after the Aswan High Dam in Egypt along the River Nile and Kenya's biggest dam covering a massive 165 square kilometres.