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High court declines to order KPA to award a Sh300m tender at Kipevu Oil Terminal

By Willis Oketch | May 14th 2020

The High Court has rejected an attempt by a company to force the Kenya Ports Authority (KPA) to re-award it a tender worth Sh300 million.

Justice Erick Ogola rejected Feradon Associate Company’s application to have KPA compelled to re-instate the tender it had won for engineering and electrical consultancy for the construction of New Kipevu Oil Terminal at Mombasa port.

The judge said the courts had no jurisdiction to preside over disputes between bidders and State agencies.

“The review board is a specialised statutory tribunal established to deal with all complaints of breach of duty by procurement entity. It has powers to engage an expert to assist in proceedings in which it feels it lacks the necessary experience,” he said.

The company’s managing director Lydia Esiaba Owino had petitioned the court to order KPA to allow it to proceed with the tender.

Eisiaba accused KPA of arbitrarily cancelling the tender which the firm had been awarded after emerging the best.

But KPA procurement manager Aza Dzengo said the company should not have gone to court before exhausting all other avenues.

KPA lawyer Augustus Wafula argued that his client had not signed any contract with the company, saying the corporation had only given it a letter of offer, which did not translate to contract.

“Judicial review orders are discretionary and in this case since allegations of corruption are involved, KPA could not ignore the concerns raised by the Ethics and Anti-Corruption Commission by going ahead and enter into contract with the company. Therefore, granting the orders sought in this court would amount to sanitising an irregular process and facilitating crime,” Mr Wafula said. EACC lawyer Francis Makori said the agency had asked KPA to suspend awarding of the tender to the company because it was investigating corruption and abuse of office allegations at the port.

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