Activist Okiya Omtatah has sued the Kenya Ports Authority (KPA), seeking to have it compelled to issue him with a copy of the licence or permit issued to Portside Freight Terminals Ltd and Heartland Terminals Ltd to develop a second bulk grain handling facility in Mombasa. In a case likely to delay the project, Mr Omtatah accuses KPA of refusing to provide a copy of the licence or permit though the state is obligated under the law to publish the information.
He argues that he needs the documents so that he can challenge it because it was issued in violation of Regulation 4(2) of the Environmental (Impact Assessment and Audit) Regulations.
"It is a gross violation of the principle of the rule of law, for KPA to issue a permit or licence in the absence of a licence of environmental impact assessment issued by the National Environment Management Authority," argues Mr Omtatah.
In his petition filed in the High Court in Mombasa, Mr Omtatah has also sued Portside Freight Terminals Ltd, Heartland Terminals Ltd and Portside CFS Ltd, and has named the Dock Workers Union as an interested party.
The petitioner argues that the respondents are frustrating a public evaluation of the permit and violating his constitutional right and duty to be involved in a matter of significant public interest (procurement of the second bulk grain handling facility).
Mr Omtatah says that Executive Order No 2 of 2018 requires all procuring public entities to publish tender opportunities and contract awards through the Public Procurement Information Portal.
The petitioner also says that contrary to the order, KPA has not published on the portal a copy of the licence or permit it granted to Portside Freight Terminals Ltd and Heartland Terminals Ltd.
Mr Omtatah says that he wrote a joint letter to the respondents seeking to be given a certified copy of the licence or permit issued.
He claims he had not received any response from KPA 42 days later at the time of filing his petition.
He also argues that the licence or permit was issued in violation of conservatory orders issued by the court in another petition that bound KPA not to act.
Mr Omtatah argues that KPA’s failure to respond to his letter violates the Constitution, which states that administrative action must be expeditious, efficient, lawful and procedural fair.
"To the extent that KPA has not been transparent and accountable for its administrative acts in regards to the two contracts and provided timely, accurate information to the public, Article 232(1) on the values and principles of public service was violated," argues Mr Omtatah.
Mr Omtatah is also seeking a declaration that by failing to publish the licence at issue through the Public Procurement Information Portal, KPA violated the Executive Order.
He also wants a declaration that KPA violated the Constitution and national legislation by denying him access to the licence.
Mr Omtatah also wants a declaration that he is entitled to payment of damages and compensation to the tune of Sh10 million for the violation and contravention of his rights and fundamental freedoms by KPA.
In the meantime, Mr Omtatah wants a conservatory order suspending the licence issued by KPA to the two companies to develop a second bulk grain handling facility pending the determination of his petition.
