Firms in fresh fight with KAA over airport parking tender

Jomo Kenyatta International Airport in Nairobi. [File, Standard] Two private companies have moved to court over the parking fee collection contract at Jomo Kenyatta International Airport (JKIA) worth over Sh2 billion, citing defiance of court orders by Kenya Airports Authority (KAA). In a legal dispute that has from 2019 moved from the Public Procurement Administrative Review Board (PPARB) to the High Court, Court of Appeal, and now back to the High Court, Mason Services Ltd and Qntra Technologies Ltd accuse KAA management of misinterpreting the Court of Appeal's judgment to continue the contract with Kenya Airports Parking Services (KAPS). On July 5, 2019, Court of Appeal Judges Gatembu Kairu, Francis Tuiyott and Jessie Lessit overturned a High Court judgment that was in favour of KAPS. The three said Justice Pauline Nyamweya (now at the Court of Appeal) failed to deliver her judgment within the timelines set by the Public Procurement and Assets Disposal Act (PPDA). "The impugned judgment cannot be allowed to stand. The order that presents itself to us to order is to allow the appeal, set aside the judgment of the High Court dated July 16, 2019," the bench headed by Justice Kairu ordered. At the same time, they directed that the PPARB judgment on the dispute was binding on the parties. Mason and Qntra, in their case before the commercial court, said the judgment by PPARB meant that KAA was to finalise the contract with them as the successful bidders after East Africa Ltd was disqualified. The firms argued that KAPS has been illegally offering services at the airport despite KAA being severally notified about the court's judgment. "The first and second plaintiffs further contend that the second defendant is illegally and unlawfully offering services to the public and earning illegal and unlawful profits arising from blatant breach and violation of clear provisions of the law, Constitution of Kenya and Review Board decision dated January 31, 2019," their lawyer Stephen Oyugi argued. The two firms sued KAA, KAPS and the Attorney General. In the case, the court heard that the tender was advertised on June 26, 2018. Oyugi said that after the Court of Appeal rendered its judgment, KAA allegedly interpreted the verdict in favour of KAPS. He said his clients gave KAA 30 days to comply with the law on February 6, 2025. According to him, the authority was determined to subvert the course of justice, as it renewed the KAPS contract despite being aware of the pending appeal. "The first defendant in order to defeat the plaintiff's prospect of winning the contract hurriedly entered into a contract with the second defendant on August 1, 2019, even after it had been served with the notice of appeal and by so doing violated the plaintiff's statutory right of appeal as stipulated in Section 175(4) of the said Act," said Oyugi. He argued that the court should compel KAPS to refund all the money it had earned from the contract. According to the lawyer, his clients were to earn Sh2.3 billion for the 10-year contract if KAA complied with the orders. In addition, he argued that his clients had incurred Sh8.5 million in legal expenses. The court heard that KAA should be forced to cancel the contract with KAPS and instead direct it to sign the deal with Mason and Qntra. Alternatively, the firms want KAA forced to pay the two the entire contract sum. In the case, the court heard that those who had initially bid were Mason and Qntra, KAPS, 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. At the Court of Appeal, Mason and Qntra raised 14 grounds on which their 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's 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 Nyamweya withheld her judgment for more than 45 days, since March 14, 2019. Section 175 (3) of the Public Procurement and Assets Disposal Act 2015 requires the court to clear the procurement case within 45 days of filing. 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, 2019, however, gave PPARB 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, Epainitus Anzeze Galo with zero shares and Godwing Wangong'u with a single share. From the documents, it emerged that Kahiga, Mwandia and 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 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 secured JKIA's parking tender in 1997, when Prime Cabinet Secretary Musalia Mudavadi was the Minister of Transport. In its response at the Court of Appeal, KAPS claimed that KAA evaluated and was satisfied that it was a citizen contractor and would be able to perform the contract. It argued that PPARB's verdict was irrational and illegal as it found that its bid was unresponsive and substituted its decision with that of the evaluation committee. KAA supported KAPS. Patrick Wanjuki, the then KAA general manager of procurement and logistics, claimed that pursuant to the orders of PPARB, they conducted a fresh due diligence on KAPS to determine its shareholders and sought clarifications about minor issues related to shareholdings, and subsequently awarded it the tender.

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