The High Court will determine whether a petition challenging plans to lease Jomo Kenyatta International Airport (JKIA) to Adani Group will be heard by a three-judge bench.
Justice John Chigiti said the application for the matter to be heard by more than one judge, should be given priority before determination.
“I am of the view that the issue of formation of a bench should come first. Should a bench be set up, it shall be able and in a position to rest its mind on all the issues conclusively,” the judge said.
Justice Chigiti directed the parties to file and exchange their responses to the application and submissions ahead of his ruling on October 25.
Adani Group opposed the case in the High Court, saying the dispute should be handled by the Public Private Partnership Petition Committee.
The company added that the section 7591) of the Public private Partnerships Act establishes the petition committee with the powers to hear and determine any petitions regarding the decisions of the Public Private Partnership Committee, the Directorate of Public Private Partnership or a contracting authority.
“The applicants have failed to exhaust the dispute resolution mechanism stipulated in the law. This court, therefore, lacks jurisdiction to hear and determine this matter,” Adani Enterprises Ltd said.
The Indian conglomerate added that the case was premature as it sought to stop a project that is still at the due-diligence stage.
Kenya Human Rights Commission (KHRC) and the Law Society of Kenya (LSK) challenged the deal, arguing that JKIA is a strategic and profitable national asset.
They said the deal is irrational and violates the principles of good governance, accountability, transparency and prudent and responsible use of public money. LSK and KHRC say Kenya would surrender the operational and profitable JKIA to Adani for 30 years in exchange for Sh238 billion.
The two say Kenya can raise the estimated $1.85 billion needed to expand JKIA without leasing the airport for the stated period.
“The proposal would deprive the public of, and transfer to Adani, the current revenues, receipts, expenditure and other financial transactions over JKIA,” they say in their petition.
“Although the project is dubbed a Build-Operate-Transfer, KAA would be handing over an operational airport to Adani.”
In documents filed in court, the Indian conglomerate said it sent the PIP to the Kenya Airports Authority on March 1, and 17 days later, the application was cleared and the firm given the greenlight to proceed with the feasibility study.
On March 28 the company provided the feasibility study report, detailing the environment and social impact of the project, the financial plan and how Kenyans would get value for money from the PIP project.
“Having considered the documents submitted, KAA is engaged in negotiations on the next phase of the project,” Mr Alok Patni, the company’s authorised signatory said.
Adani Group said it provided a preliminary operating plan, confirming that the project was aligned with the national priorities as it was aimed at curbing the perennial infrastructure flaws and deterioration at JKIA.
Another petition filed by activist Tony Gachoka and Mount Kenya Jurists is pending before another judge.
