The government wants the Court of Appeal to throw out a case filed by activist Okiya Omtatah challenging Standard Gauge Railway (SGR) project.
In a second round of fight before the Court of Appeal, Attorney General, Public Procurement Oversight Authority (PPOA) and Kenya Railways (KR) on one hand asked judges to dismiss the appeal by Mr Omtatah, in a case which is supported by the Law Society of Kenya (LSK).
Omtatah argues that Kenyans will not get value for money and that the project's cost was inflated.
According to Omtatah, the project’s design and supervision of the construction services amounting to $110 million (to Sh11 billion) was duplicated, hence a loss to the public. This was disputed by the State, which argued that there was no basis to the claim, adding that the project is of benefit to Kenyans.
A three-judge bench composed of Justices Martha Koome (presiding), Gatembu Kairu and Jamila Mohammed heard the arguments.
Omtatah claims the contract given to Chinese corporation - China Road and Bridge - was inflated, and that the State erred in single sourcing for the project and allowing use of locomotives which were not manufactured by the firm.
He also argues that Parliament was not involved in the approval of the project and the public was not consulted in the process. Okiya wants the court to demand for a refund from the Chinese Company and go after State officials who signed the deal.
The activist’s argument is supported by the Law Society of Kenya, which also argues that the government contravened procurement regulations as it never floated an open tender or direct sourcing.
China Road supported the Government’s case that the appeal by the activist should be dismissed.
The source of correspondences between Kenya and China officials and a contract signed between the two nations to build the SGR will be at the heart of a judgment to be delivered by the Appeals Court on May 6 this year.
On one hand, the State through the Attorney General, PPOA and KR argue that documents filed by Omtatah on the tender, and which include the contract between Kenya and China, cannot be used as evidence as they were illegally acquired.
On the other, the activist argues the information he is using to question the viability of new railway system was forwarded to him by a whistle blower.
Through lawyer Kiragu Kimani, China Road argues that the case in court is already dead as SGR is already up and running. It further argues that the court cannot issue the orders sought by the activist and lawyer’s body as they have been overtaken by events.
“SGR was operational from 2017 and has carried two million passengers and an average 30 freight and four passenger trains. What you are being told is to reverse the clock,” argued the lawyer.
The court heard that the project was not conducted under the procurement Act but was a government to government loan.
The case before the Appeals Court is a second round clash on whether Kenya needed the multi-billion project. Omtatah and LSK lost the first round at the High Court.