Kenya needs a formidable legal team to defend an arbitration case filed by Helios Investment Partners at the London Court of International Arbitration.
Kenya needs a formidable legal team to defend an arbitration case filed by Helios Investment Partners, in which a loss could condemn taxpayers to surrender at least Sh6.19 billion to the London-based private equity firm.
The clock is ticking as Kenya needs to urgently file a response. To settle on a legal team, the High Court has been tasked with a procurement question, whose answer will determine which of two top law firms will present Kenya’s defence at the London Court of International Arbitration.
When Kenya sought for bidders with experience in international matters experience, was it based on how many cases the law companies had handled or the pedigree of individual counsels?
Okoth & Kiplagat Advocates posed the question through its appeal against a Public Procurement Administrative Review Board decision, which held that, based on the tender rules, the experience of individual lawyers should suffice.
The High Court’s answer to that question will not only determine who between Okoth & Kiplagat Advocates and G&A Advocates will represent Kenya in the arbitration, but also shape the awarding of specialised tenders.
Senior partners Dr Ken Kiplagat (Okoth & Kiplagat Advocates) and Eric Gumbo of G&A Advocates have filed opposing affidavits in court, defending their positions.
Eric Gumbo of G&A Advocates.
The London case will test government decision-making tied to succession politics, as the dispute is rooted in a series of contrasting moves on opposite ends of the last presidential election.
Days to the August 9, 2022, election, President Uhuru Kenyatta’s administration approved a Sh6.19 billion compensation package to Jamhuri Holdings Ltd, a Mauritius-registered subsidiary of Helios Investment Partners.
After being sworn in as president, Dr William Ruto vetoed the payments, basing the decision on claims of procedural violations by Mr Kenyatta. Aggrieved, Jamhuri Holdings filed a case at the London Court of International Arbitration.
The National Treasury floated a tender for legal representation, which only attracted two bids – G&A Advocates and Okoth & Kiplagat Advocates.
The two firms were cleared in the preliminary and technical stages before advancing to financial evaluation, where G&A quoted Sh358 million against Okoth & Kiplagat’s Sh380 million.
Treasury turned to the Specially Permitted Procurement Procedure (SPPP), rooted in section 114A of the Public Procurement and Asset Disposal Act.
The SPPP is an amalgamation of open tendering, where advertisement is done and companies battle it out before evaluators, and direct procurement, where one entity is selected for a contract.
With the SPPP, the procuring entity invites a specific and limited pool of bidders to present their proposals.
The National Treasury argued that it used the SPPP method to save time lost in open tendering, which often attracts appeals against award decisions.
Even so, the tender has still attracted challenges.
Evaluated bidder
G&A emerged the lower evaluated bidder and was awarded the contract. The tender technical evaluation required bidders to present “demonstrable extensive expertise and experience in dispute resolution in Public International Law generally, and International Commercial and Investment Treaty Arbitrations disputes in particular for not less than 20 years.”
The National Treasury Building in Nairobi.
“The firm should directly and successfully have personally handled International Commercial and Investment Treaty Arbitration disputes under applicable international dispute resolution mechanisms, ” Treasury said.
Okoth & Kiplagat argues that the requirements are clear and unambiguous.
The experience, Okoth & Kiplagat Advocates says, has to belong to the law firm as an institution, not individual lawyers in it.
Okoth & Kiplagat Advocates adds that the tender “clearly distinguished between firm-level experience and the qualifications of individual staff”.
It adds that the evaluation has to be conducted strictly in accordance with the criteria set out in the tender document. The firm contends that G&A did not meet this threshold.
It says the winning bidder relied on the experience of one of its partners gained while working at another law firm, and that such experience cannot legally be attributed to G&A.
However, G&A Advocates and National Treasury Principal Secretary Chris Kiptoo reject this interpretation, maintaining that the evaluation was lawful, fair and consistent with procurement law.
Their position, reflected in responses filed before the Review Board and the High Court, is that the tender was properly conducted and that bids were assessed in accordance with the prescribed formula.
According to Dr Kiplagat, such experience cannot automatically be attributed to the firm and should not have been considered under the technical criteria.
He argues that the tender document prohibited reliance on the experience of other companies and required evaluation based solely on the bidder’s own record. Any deviation, he says, amounts to introducing an unlawful criterion.
“It is my position that once the technical evaluation was conducted on the basis of an unlawful criterion, the entire process, including the financial evaluation and award, was irreparably flawed,” Dr Kiplagat says in his papers.
The firm maintains that if the rules and guidelines were applied strictly, G&A would not have attained the minimum 70 per cent technical score required to proceed to financial evaluation.
G&A Advocates and the National Treasury say the experience presented by G&A was valid and relevant to the assignment, and that the firm met the technical requirements.
G&A further dismisses the challenge as flawed. In its filings, it describes the allegations as “legally untenable and factually incorrect”, insisting that no unfair advantage was conferred.
In a supplementary affidavit, Mr Gumbo states that procurement laws do not prohibit a procuring entity from proceeding with the implementation of a tender once the Review Board has rendered its decision.
He also dismisses claims of prejudice and procedural unfairness, saying all parties were given an opportunity to present their case during the board proceedings.
The firm maintains that the applicant was present throughout the Review Board proceedings and did not raise any objection.
It also defends the implementation of the tender after the decision of the board, saying there was no legal bar to proceeding.
“Section 175(1) of the Public Procurement and Asset Disposal Act does not prohibit a procuring entity from proceeding with the implementation of a tender once the Review Board has rendered its decision,” states Mr Gumbo.
G&A defends the broader context of the procurement. It points to the urgency of the arbitration and the need to secure competent representation to protect Kenya’s interests.
The Public Procurement Administrative Review Board sided with the National Treasury and G&A in its March 9, 2026, ruling.
It dismissed the challenge and directed the National Treasury accounting officer to proceed with the tender to its “logical and lawful conclusion”.
That ruling cleared the way for the contract to be executed. However, the dispute did not end there.
Okoth & Kiplagat escalated the issue to the High Court in Nairobi, seeking to quash the decision of the board and halt the contract.
The company argues that the board misinterpreted the tender document and failed to enforce the requirement for strict adherence to evaluation criteria.
It further claims that the board allowed the introduction of considerations not provided for in the tender, thereby undermining transparency and fairness.
Another flashpoint in the case is the timing of the contract signing. Okoth & Kiplagat says the National Treasury signed the contract with G&A before the expiry of the mandatory 14-day standstill period required under procurement laws.
In court documents, the firm states that the contract was executed “prior to the lapse of the period contemplated under the law”, rendering the action premature and unlawful.
G&A disputes the claim, arguing that procurement laws do not prohibit implementation once the Review Board has rendered its decision, and that Treasury acted correctly.
“The respondents acted lawfully in implementing the Review Board’s orders, which directed the conclusion of the tender process. Accordingly, the dismissal of the Request for Review does not, and could not, operate as a stay or standstill period,” Mr Gumbo says.
The firm maintains that parties were given a fair hearing during the Review Board proceedings and that due process was followed.
The High Court is tasked with resolving these competing claims. Central to its determination will be whether the evaluation adhered to the tender document and if the board acted within the law in upholding the award.
The hearing is set for April 20, with judgment expected in early May.
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