The Supreme Court has canceled a contract of about Ksh 5.8 billion awarded to Portside Freight Terminals Limited, a company that is linked to Mining Cabinet Secretary Hassan Joho. The Kenya Ports Authority (KPA) had given this contract for building a second bulk grain handling facility and an island berth at the Port of Mombasa.
In its ruling, the Supreme Court found that the decision to award the firm the contract was unconstitutional.
The court stated that, despite the project’s national security and public interest importance, the procurement process must adhere to due process, including transparency, equity, cost-effectiveness, and competitiveness.
“In other words, the protection of the supremacy of the Constitution is critical, and there can be no greater public or national security interest than upholding the Constitution, its values and principles, and obeying the law,” said Deputy Chief Justice Philomena Mwilu.
Supreme Court Cancels Contract Awarded to CS Joho by KPA
The case stemmed from a petition challenging the award, with one of the petitioners being Busia Senator Okiya Omtatah. The petition opposed the contract awarded through an unsolicited proposal submitted to the Kenya Ports Authority, which was named as the fourth respondent in the case.
According to court documents, the procurement was conducted under Section 114A of the Public Procurement and Asset Disposal Act (PPAD), introduced through the Finance Act No. 15 of 2017. The provision was intended to facilitate emergency and strategic procurements without the delays associated with competitive bidding.
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The petitioners raised constitutional concerns about the transparency, accountability, and fairness of the procurement process.
One petitioner challenged the use of the Specially Permitted Procurement Procedure (SPPP), a 2017 provision meant to fast-track urgent and strategic public procurement projects.
Okiya Omtatah Among Petitioners Who Took Firm Linked to CS to Court
They argued that the SPPP lacked open competition and violated Articles 10, 201, and 227 of the Constitution, which emphasize public participation, equitable resource distribution, and fair procurement practices.
The court was told that while KPA had adopted a long-term master plan for the Port of Mombasa — which included the development of a second grain terminal — the procedure used to award the contract was irregular and possibly unconstitutional.
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In its judgment, the court reviewed the legislative intent behind the introduction of the SPPP. Parliamentary debates from 2017 were cited, showing lawmakers’ frustrations with corruption and inefficiencies in public procurement. Legislators had supported the SPPP to address emergencies quickly and reduce bureaucratic delays.
However, the Court observed that while the intent behind the amendment was valid, any procurement conducted under SPPP must still comply with constitutional principles and be subject to proper scrutiny to prevent abuse.
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