The Kenya Ports Authority (KPA) wants a petition challenging the awarding of a licence and contract to a company linked to Governor Hassan Joho to develop a second grain bulk handling facility struck out.
KPA also wants documents supporting the petition by Mr Okiya Omtatah struck out, saying they are confidential and were illegally obtained.
The agency has listed 12 documents that it wants expunged, among them an application by Portside Freight Terminals Ltd, which is associated with Mr Joho’s family.
“The documents, having been obtained in violation of Article 31 of the Constitution and Section 8 of the Access to Information Act, must be expunged from the record,” KPA argues.
KPA also says that the petition demonstrates that the complaint is not in the public interest but an attempt by six companies, named as interested parties in the suit, to pursue their private interests under the guise of public-interest litigation.
KPA argues that the petition contests how the Treasury CS permitted it to award Portside Freight Terminals the tender yet the validity of Section 114A of the Public Procurement and Disposal Act (PPAD) or any of its section is not challenged.
“Whether or not the PPAD was properly applied by KPA and the CS is an ordinary civil dispute to be resolved by application of the Act, it is not a constitutional issue,” KPA argues.
KPA says that Mr Omtatah’s direct access to the High Court denies it the benefit of inbuilt statutory protection in the PPAD and the benefits of expertise that PPRA has in procurement matters.
Mr Omtatah argues that the KPA board of directors acted beyond its legal powers and without authority in undertaking the procurement process that is the mandate of the managing director.
He says the board took into account irrelevant considerations in relation to Portside Freight Terminals’ proposal to develop the grain handling facility.
Mr Omtatah says the respondents’ decision violates the legitimate expectations of the six companies that expected that their proposals would be considered in view of the newly adopted Specially Permitted Procurement Procedure in the tendering process.
The six companies listed as interested parties, apart from Portside Freight Terminals and the Dock Workers Union, are Kilindini Terminals Ltd, Mombasa Grain Terminal Ltd, Kapa Oil Refinery, Africa Ports and Terminals, Multiship International and Kipevu Inland Container EPZ Ltd.
“KPA’s board of director’s decision purporting to approve a proposal that sought to construct a facility outside the approved location under the KPA Master Plan is excessive, abuse of power and irrational,” Mr Omtatah argues.
He wants a declaration that the respondents’ decision to solely consider Portside Freight Terminals’ proposal though it contradicts with the KPA Master Plan, proceed to approve it and adopt the use of the Specially Permitted Procurement Procedure in its favour is illegal.
Mr Omtatah says that KPA and the CS’s action that did not consider proposals from the six companies amount to discrimination.
Mr Omtatah says the KPA Master Plan identified and projected that the second grain bulk handling facility was to be located at either Dongo Kundu or the Lamu Port.
He argues that the KPA board sought to have the Master Plan reviewed and amended to accommodate Portside Freight Terminals’ facility, an indication that it was keen to ensure that the company would be granted the licence though other firms are available.
“It would not be far-fetched to deduce that the board appear to either be compromised or in cahoots with the first interested party (Portside Freight Terminals),” Mr Omtatah argues.
He says the six companies were discriminated against and their proposals were never considered in relation to the use of the Specially Permitted Procurement Procedure thus locking them out of the procurement process.
The petitioner also wants a declaration that a licence for developing a second bulk grain handling facility must be procured through competitive bidding as required by the Constitution.
Mr Omtatah wants the court to quash the decision of the CS Treasury granting KPA approval to use the Specially Permitted Procurement Procedure in favour of Portside Freight Terminals.
