An audience follows proceedings during the Third National Wage Bill Conference at Bomas of Kenya on April 17, 2024.
The Ministry of Defence has failed to overturn a decision directing it to complete a multi-billion tender for the construction of Bomas International Convention Complex (BICC), which was approved by the cabinet in August 2023.
The appellate court dismissed the appeal by the PS, Ministry of Defence and upheld a ruling in February, directing the government to complete the tender with a Turkish firm.
Summa Turizm Yatirimciligi Anonim Sirket had proposed to build and equip the BICC at a cost of $245,000,000 (about Sh31.6 billion).
In December, Public Procurement Administrative Review Board faulted the PS Ministry of Defence for stalling the completion of the tender and later terminating it over claims of lack of funds and change of scope of works.
Attempts by the Ministry to challenge the directive at the High Court was dismissed by Justice John Chigiti, saying the appeal was filed out of time.
Judges Kairu Gatembu, Fred Ochieng and Aggrey Muchelule agreed with the High Court judge that the appeal by the ministry was time-barred.
“Based on the foregoing, the learned Judge was right that the appellants’ action was time barred and the decision to strike out the same is sound in law and cannot be faulted.” The judges said.
The government had faulted the High Court for dismissing the case on a technicality and argued that had the judge properly considered the matter, he would not have dismissed the case.
Attorney General pleaded with the court to allow the appeal and send the matter back to the High Court for disposal on merits.
The Turkish firm through lawyer Paul Nyamodi submitted that the application for judicial review was filed outside the 14 days set under Section 175(1) of the Public Procurement and Asset Disposal Act.
In the December decision, the board said that under the procurement Act, a public tender can only be terminated prior to an award being made. The board gave the ministry 90 days to complete the process.
The cabinet had approved the construction of BICC, a decision that was announced on August 8, 2023, during a Cabinet meeting held at the Sagana State Lodge in Nyeri County.
The centre was to boost of facilities like a conference centre, a presidential pavilion, and at least five hotels.
On November 6, 2024, the contractor informed the ministry that it had secured financing for up to 80 per cent of the contract and was waiting for confirmation.
The Ministry of Defence disclosed that it was undertaking the procurement process on behalf of the Ministry of Gender, Culture, the Arts and Heritage.
The board, however, said it would be unfair for the ministry to purport to shift liability for the procurement proceedings to a party who for all intents and purposes had not been revealed to the contractor.
It added that any procuring entity is forbidden from commencing any procurement process without satisfying himself that there is an adequate budget to finance the subject of procurement.
“The Act goes a step further in imposing criminal liability on the part of an Accounting Officer who breaches this requirement,” said the board.
The board noted that the general conduct of the ministry spoke of a deliberate attempt to frustrate the conclusion of the tender.
“Absent evidence of inadequate budgetary allocation for the subject tender, the Board finds great difficulty in finding that there were no funds to finance the subject tender. It was the responsibility of the Respondent to lead evidence on the alleged inadequate budgetary allocation but they failed to discharge this burden,” said the board.
skiplagat@ke.nationmedia.com
