Supreme Court saves UhuRuto blushes after overturning Sh500bn SGR ruling

The Sh500 billion contract between Kenya and China for the construction of Standard Gauge Railway was legal, Supreme Court has declared.

Setting aside the Court of Appeal's 2020 finding that procurement laws were flouted when the SGR project contract was awarded to China Bridges and Railway Corporation (CBRC), the Supreme Court stated that the process conformed with the law.

"The procurement process for the Standard Gauge Railway (SGR) project was undertaken in conformity with the provisions of Article 227 of the Constitution.

The SGR procurement was undertaken as a government-to-government contract hence exempt from the provisions of the Public Procurement Disposal Act, 2005 by virtue of section 6(1) of the said Act," the apex court ruled.

The contract was signed in the first term of President Uhuru Kenyatta and his deputy William Ruto, then popularly referred to as UhuRuto.

The court added that the SGR project was subject to interrogation before Parliament in two committees.

The persons and entities that were challenging the project in court opted to be involved in the parliamentary process.

"The said parliamentary process, which is open to the public, cleared the projects. Under our constitutional design, the people have the power to exercise their oversight power through elected representatives who are domiciled in Parliament. Whether a citizen agrees with or was satisfied with what was undertaken is a matter of conjecture provided that the laid-out procedure was followed," ruled the court.

"Like in every democracy, the concept of representing the people or public interest remains a hydra-headed mongrel which cannot be defined with certainty as it is never possible to get a homogenous viewpoint from the populace," said the judges led Deputy Chief Justice Philomena Mwilu.

They were ruling on twin appeals concerning the procurement of the SGR contract.

The court of appeal composed of justices Marth Koome (now the Chief Justice), Gatembu Kairu and Jamila Mohammed had in a judgement delivered on June 19, 2020, found that the Kenya Railways Corporation failed to comply with and violated the Constitution and procurement laws.

The first appeal was filed by Kenya Railways Corporation, the Attorney-General and Public Procurement Oversight Authority challenging the Court of Appeal's judgment that the procurement laws were not followed.

Kenya Railways Corporation failed to comply

They were aggrieved by the finding by the appellate court that the Kenya Railways Corporation failed to comply with and violated Article 227(1) of the Constitution and Sections 6(1) and 29 of the repealed Public Procurement Disposal Act, 2005 in the procurement of the SGR project.

The second appeal was by Busia Senator Okiya Omtatah and activist Wyclife Gisebe Nyakina.

The two were challenging portions of the judgment relating to documentary evidence that was expunged by the High Court as affirmed by the Court of Appeal.

In the Friday judgment, the Supreme Court said that the procurement of CRBC was not undertaken by KRC but by the Government through the Ministry of Transport. 

The judges said established that the provisions of the Public Procurement and Asset Disposal Act 2005 were ousted in the SGR project.

The other judges on the bench were justices Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung'u and William Ouko.

"It has not been demonstrated how the KRC, acting not as the procuring entity, but on the directives of the Executive, failed to comply with the provisions of Article 227 (1) of the Constitution. In any event, government-to-government procurement is permissible under section 6 of the PPDA 2005. We did not understand any of the respondents to be challenging the constitutionality of the said statutory provision because that they did not do," said the judges.

On expunging of documents, the court said easy access to courts should not be misused as a license to file frivolous claims disguised as public interest. 

The court said some of the documents adduced by the activists were of “utmost confidentiality” and they failed to disclose how they obtained them.

The documents related to communication within government circles, between civil servants, and relating to government engagement and operations. 

"Even if the authenticity or contents of the documents was not questioned by the appellants, the production of such documents as evidence must be in accordance with the law. Not having obtained and adduced the documents in the manner set out under Sections 80 and 81 of the Evidence Act or requested for information under Article 35 of the Constitution, the documents are inadmissible, we so declare," said the Supreme Court.