Court has cancelled ten tenders worth Sh134,600,000 at Bomachoge Borabu Constituency in Kisii County and ordered re-tendering process which should be conducted according to the law.

Lady Justice Wilfrida Okwany has ruled that the National Government CDF-Bomachoge Borabu Constituency did not comply with Article 227(2) of the Constitution as well as all other relevant provisions of the law governing such tenders.

“Having regards to the findings and observations that I have made in this judgement, I find that the instant petition is merited and I therefore allow it,” ruled Okwany.

The order has been issued after Lawyer Philip Nyandieka moved to court on July 2, 2018 seeking orders to cancel National Government CDF Bomachoge Borabu Tender Numbers NGCDF/BOMBOR/KYY/01/17-18 to NGCDF/BOMBOR/KYY/12/17-18.

Okwany said that she has observed that the total value of the tenders from the 2017/2018 financial year is indicated to be Sh124,100,000.

She added that this varies from the total reflected on the constituencies evidence document which is Sh134,600,000.

The Judge added the circulation shows that thirty percent of Sh124,100,000 is Sh37,230,000.

In the event that the proper figure was Sh134,600,000 as reflected in the evidence document then, thirty percent of the same would amount to Sh40,380,000.

Through lawyer Jason Ondabu, Nyandieka was also seeking orders directing the Constituency to re-tender in accordance with the constitution of Kenya, 2010 and the law.

Ondabu had told the court that the said tenders contravene the provisions of the Public Procurement and Asset Disposal Act which requires that a minimum of 30 percent of tenders be served for women, youths, persons with disabilities and other disadvantaged groups.

“The tenders contravened some sections of National Government Constituency Fund Act, 2015 on openness, accountability and public participation,” said Ondabu.

Ondabu added that the response from National Government CDF-Bomachoge Borabu Constituency did not indicate whether any notice was ever given to the public for the meeting of December 1, 2017 which gave rise to the minutes produced in court.

The lawyer added that the tenders were advertised in contravention with Article 227(a) of the constitution of Kenya 2010 because the projects are not fairly and equitably distributed amongst the four wards of Bomachoge Borabu Constituency.

In response to the claims, Bomachoge Borabu Constituency through Benard Otieno on July 31, 2018 raised an objection on the jurisdiction of the court to entertain the matter.

They argued that the claims by Nyandieka contravenes the provisions of section 175 of the Public Procurement and Asset Disposal Act which provides that a person aggrieved by a decision made by the Review Board Should seek judicial review by the High Court within 14 days from the date of decision.

“Nyandieka ought to have filed a Judicial Review application as opposed to the instant petition which, it contends is incompetent and ought to be dismissed,” said Otieno.

The Constituency at the same denied the allegations that due process was not followed and told the court that it complied with the law and that the complainants failed to demonstrate how it failed to adhere to the equitable distribution of resources among the four wards.

Judge Okwany ruled that the instant petition raised allegations or questions touching on violations of constitutional rights, which the court properly has jurisdiction over.

“I find that this court is properly seized of this matter,” ruled Okwany.

 She added that the threshold of public participation was not attained in the present case after she quoted several authorities.

Nyandieka had argued that according to constituency, only 9 percent of the budgetary allocations for the 22 tenders they tabled caters for the disadvantaged groups such as women, youth and persons with disabilities and contended that due process was not followed in allocation.

Ondabu said that the minorities were granted only 9 percent which is Sh10 million of the tenders instead of 30 percent which amounts to Sh40 million.