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Firm wants agency boss jailed over Sh64 million water tower rehabilitation tender

By Kamau Muthoni | November 6th 2020

A local engineering company wants Gordon Tanui, the director-general of Kenya Water Towers Agency (KWTA), jailed for disobeying court orders.

According to Principle Styles Ltd, Tanui should be jailed for six months for failing to implement a Sh64 million contract signed with the firm to restore a water tower.

Principle Styles Ltd said KWTA has failed to implement the contract as ordered by the High Court.

The contract involved the rehabilitation of 274 acres of degraded land within Enoosupukia Water Tower in Narok County.

On its website, Kenya Forest Service asserts that Enoosupukia is critical to the flow of rivers particularly in Ewaso Ngiro South.

KWTA is a State corporation under the Ministry of Environment and Forestry established in 2012. It is mandated to coordinate and oversee the protection, rehabilitation, conservation and sustainable management of all critical water towers in Kenya.

In its application filed before Justice Pauline Nyamweya, Principle Styles argued that Tanui has continued to disobey the orders issued in February this year by Justice John Mativo.

“The applicant prays that the first respondent, namely Julius Gordon Tanui be cited for contempt. We also pray that he be detained in prison for a period of six months or for such period that this court shall deem fit for being disobedient of this court’s orders issued on February 5, 2020,” Principle Style’s lawyer George Kamau argued.

The court heard that at least 15 companies expressed their interest in the tender.  The companies which joined the contract race were Basugen Holding, Nothern Dynamic, Sanjemu Investments, Podopack, Moonlink, Greenbelt Movement, Global Woods Hardware, Seven Eighty-Six Ltd, Rapha Vetiver Engineering, Bloomerg Africa Ltd, Monarch, Principle Styles, Jagla Agencies, Divine Assinter Ltd and Golden Sacco Ltd.

After a preliminary evaluation, Sanjemu Investments and Global Woods Hardware bids were rejected for submitting invalid tax compliance certificates while the bid for Greenbelt Movement was also thrown out over an expired tax compliance certificate. Jagla Agencies bid was rejected for failure to submit a tax clearance certificate.

During the financial evaluation stage, Principle Styles floated a Sh61 million bid, making it the lowest bidder.

However, the KWTA procurement unit declined to honour the tender committee recommendations, claiming that it had allegedly submitted a falsified tax compliance certificate.

The standoff ended up before the Public Procurement Administrative Review Board (PPARB). The board directed that the agency should sign the contract.

Aggrieved, KWTA moved to the High Court seeking to review PPARB orders, arguing that the board erred in its ruling.

PPARB in its reply argued that it tilted the scales of justice in favour of Principle Styles after finding that KWTA was wrong in relying on the professional opinion of its head of procurement to reverse the tender award decision instead of a due diligence report.

Principle Styles also argued that KWTA had gone for a fishing expedition by bringing up unrelated documents that should not have been considered in the tender award process.

Justice Mativo heard that the firm was not given an opportunity to defend itself before KWTA took the drastic decision.

The judge agreed with PPARB, noting that KWTA ought to have done due diligence and attached post qualification rejection reasons in its evaluation report, but it did not do that.

“I find no basis to fault the respondent’s findings, save to order that the award of the tender be made in terms of the recommendations of the tender evaluation committee subject to a due diligence report being carried out,” the judge ruled.

KWTA insisted that it complied with the order by sending the due diligence report to PPARB. Justice Nyamweya directed Principle Styles to serve Tanui and appear before the court on December 15, 2020.

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