The battle for the Sh250 million Jomo Kenyatta International Airport (JKIA) parking services tender has moved to the Court of Appeal.
In a move that takes the battle over who should manage the parking tender, the second-highest court in the land has been asked to reverse a High Court decision by Lady Justice Pauline Nyamweya in what it termed grave errors in her judgment.
The battle is between a consortium composed of Mason Services Ltd and Qntra Technologies Ltd and Kenya Airports Parking Services (KAPS).
The other bidders in the tender were Automatic Park Services Ltd, Atlancis Technologies, Paytech Ltd, Com Twenty One joint venture with Servest Facilities Services Ltd and Endeavour Africa Kenya Ltd joint venture with East African Parking Ltd.
Kenya Airports Authority (KAA) had controversially renewed KAPS Sh250 million contract last September after it beat six other bidders, leading to the current battle.
Mason and Qntra through their lawyer Stephen Oyugi filed the appeal after Justice Nyamweya overturned a decision by Public Procurement Administrative Board (PPARB), which had found that KAPS lied about its directorship.
Lawyer Oyugi raised in the appeal 14 grounds on which his clients faulted the judge’s view that the errors identified by PPARB were not enough to kick out KAPS from managing the parking services at Kenya’s biggest airport.
The lawyer argued that Justice Nyaweya gave a contradictory verdict regarding PPARB powers. In an earlier decision, he said, the judge found that PPARB has wide powers to evaluate the responsiveness of a tender.
However, in the current case, she held that responsiveness was excluded from consideration at the evaluation stage, hence taking away the powers of the board.
According to the lawyer, the judge also made her verdict outside the time stipulated by law to conclude Government procurement cases.
He alleged that Justice Nyamweya withheld her judgment for more than 45 days, since March 14, 2019. Section 175 (3) of Public Procurement and Assets Disposal Act 2015 requires the court to clear the procurement case within 45 days of filing.
The Mason and Qntra lawyer now wants the Court of Appeal to uphold that PPARB’s decision as binding since section 175 (5) of the same Act provides that if either the High Court or the Court of Appeal fails to make a decision within the prescribed 45 days, the decision of Review Board shall be final and binding to all parties.
“The judge erred in law by delivering judgment on July 16, 2019, which is null and void pursuant to the provisions of section 175(5),” court papers show.
The lawyer argued that the judge also erred by treating discrepancies by KAPS in its confidential business questionnaire form as minor although the law provides that any party giving false information should be locked out of the tendering process.
In the confidential form, KAPS Ltd wrote that it is owned by Eric Mwandia, Samuel Kahiga, Epainitus Anzez Galo and Godwing Wangong’u, with each director having an equal single share.
The three CR12 certificate obtained from the Registrar of Companies on July 26, 2018, January 9 and 21 this year, however, gave the lawyer Faith Waigwa-led board a different face on KAPS ownership.
According to the CR12 filed before PPARB, KAPS is owned by Bonnyventure Ngala Saronge who owns, KAPS Holdings (Mauritius) Ltd which has 13,917 shares, Samuel Macharia Kahiga, Erick Ndumbu Mwandia, Epainitu s Anzeze Galo with zero shares and Godwing Wangong’u with a single share.
From the documents, it emerged that Kahiga, Mwandia, Galo had been indicated in the questionnaire as directors who are shareholders, with each having one share. However, all three in the CR12 were simply identified as directors who are non-shareholders.
The board observed that Saronge was included as a director on the January 21 according to CR12 while on the two other CR12s which had been attached by KAPS as part of its documents, he was not included. Saronge was also not listed in the confidential business questionnaire. The glaring discrepancies between the two crucial documents filed before the board raised questions on how it passed JKIA’s tender committee while reviewing the documents.
KAPS got JKIA’s parking tender in 1997 when ANC leader Musalia Mudavadi was the transport minister.
In the case, questions were raised as to how the firm, having been submitting Sh78 million every year from 2009 would have managed to increase the amount to the set Sh250 million a year.
The firm only claimed that there were changes which had not been effected at the company’s registry but did not provide evidence. “The board finds the contents of the confidential business questionnaire in respect to KAPS Ltd directorship are false,” the board ruled.
The tender details also revealed that KAPS Holdings (Mauritius) is 99.89 per cent owned by Kenyans despite having been registered in Mauritius. It emerged that Mwandia owns 42 per cent, Galo 27.76, per cent, Wangong’u 20.50 per cent, Macharia 4.76 per cent and Richard Kemoli 4.53 per cent.
It had been claimed that a resolution by the KAPS Holdings (Mauritius) board has resolved to allot shares one share to Kahiga, Mwandia Galo and Wangong’u from the 13917 shares it held in KAPS Ltd.
But there were no allotment letters or shares transfers that had been signed by the board and nothing had been registered with the registrar of companies.
“Such allotment is ineffective since KAPS Ltd is a separate legal entity and decision to allot the remaining shares in KAPS Limited ought to have been made by resolution of the board of directors of KAPS Ltd and not KAPS Holding (Mauritius),” PPARB observed.
Mason and Qntra further argued the judge also erred by holding that failure by KAPS to include KAA’s managing director in its papers was not key to its case. According to the consortium, the managing director had participated before PPARB hence he ought to have been part of the case before the High Court. KAPS in its papers had included KAA, which was not a party to the PPARB.
Having knocked out KAPS out of the parking deal, which it has managed for 21 years, PPARB had ordered KAA to scrutinise tender documents filed by Mason Services within 14 days which included sealing the same. Aggrieved, KAPS moved to the High Court seeking to review orders of the board.
Mason had argued before the board that KAA acted contrary to the principles of fairness and transparency in awarding a tender “to a foreign company at the expense of local contractors.”
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