The Kenya Ports Authority (KPA) has defended the award of a contract and licence to a company linked to former Governor Hassan Joho’s family for the development of a second bulk grain handling facility at the Port of Mombasa.
KPA argues that Portside Freight Terminals Ltd made proposals to use its own land and money to develop the facility, unlike other companies.
While making its submission in a petition challenging the award of the licence by Busia Senator Okiya Omtatah, KPA’s lawyer Geoffrey Imende told the court that the proposals were not envisaged in the authority’s master plan.
The court heard that though the KPA master plan provided that the second grain handling facility be in the Dongo Kundu area, circumstances under which the licence was issued changed after Portside offered to use its own resources in the development of the facility.
Mr Imende told the court that neither Mr Omtatah nor other interested parties who had applied for the licence have referred the court to alleged discrimination in considering Portside’s proposals and grant of licence.
Through lawyer Sanjeev Khagram, Portside told the court that the petition had been filed for collateral purposes to entrench an existing monopoly, which is not in the public interest.
Mr Khagram further told Justice John Onyiego that if other entities that had applied for a licence had been discriminated against, they would have been in court to plead their arguments.
The Dock Workers Union and Katiba Institute, who are interested parties in the suit, supported the petition by Mr Omtatah, arguing that the KPA board awarded the licence to Portside against technical advice. They also argued that the action of the board was against the law.
Mr Omtatah says the KPA board acted beyond its legal powers and without authority in purporting to undertake the procurement, which is the mandate of the managing director. He says the board took into account irrelevant considerations in relation to Portside.
The six companies which participated in the tender and have been named as interested parties are Kilindini Terminals Ltd, Mombasa Grain Terminal Ltd, Kapa Oil Refinery, Africa Ports and Terminals, Multiship International and Kipevu Inland Container EPZ Ltd.
“KPA’s board of directors decision purporting to approve a proposal that sought to construct a facility outside the approved location under the KPA master plan is excessive, abuse of power and irrational,” argues Mr Omtatah in his petition.
The petitioner wants a declaration that the respondents’ decision is illegal.
“The respondents have employed the discriminatory use of the SPPP (Specially Permitted Procurement Procedure) to favour Portside Freight Terminal Ltd to the detriment of other interested parties who may have qualified for the award of the licence,” argues Mr Omtatah.
Mr Omtatah says the KPA master plan identified and projected that the second grain bulk handling facility was to be located at either Dongo Kundu or Lamu Port. He argues that KPA’s board sought to have the master plan reviewed and amended to accommodate Portside’s facility, an indication that it was keen on ensuring that the company would be granted the licence despite the availability of others.
The petitioner also wants a declaration that the procurement and licence for development of a second bulk grain handling facility be done through competitive bidding.
Justice Onyiego will give judgment on March 31.
