Centum Investments chairman Chris Kirubi (with microphone) speaks during a briefing on the tender process for the Lamu 960MW coal project. PHOTO | SALATON NJAU
Investment group Centum has been temporarily stopped from signing a Sh174 billion coal power generation contract with the government until a petition filed by a rival bidder is determined.
Justice Mumbi Ngugi on Thursday ruled that the High Court has the power to issue the orders requested by HCIG-Liketh, which has challenged the decision to award the multi-billion shilling tender to the Centum-Gulf Energy consortium.
The judge, however, threw out a petition by the losing bidder, which claimed that the tender award had violated its constitutional rights.
The appeal against award of the tender to the Centum consortium will, therefore, be heard before the petition committee.
“Pending the hearing and determination of the matter before the petition committee, the respondents (Government and Centum-Gulf Energy) are restrained from entering into any agreement regarding the coal power plant,” the judge said.
Justice Ngugi dismissed HCIG-Liketh’s argument that it had been denied documents from the tender evaluation process, which one of its advocates, Ken Ogetto, had requested from the State.
She said that while the firm is a recognised entity, it is not a human being hence is not protected by the provisions of the Constitution regarding the right to information.
The firm had argued that the denial of documents was a violation of its right to information as it wanted to know how the evaluation committee arrived at the decision to award Centum-Gulf Energy the lucrative deal.
“Mr Ogetto requested for information from the Energy Cabinet Secretary. However, he cannot be substituted for the firm. HCIG-Liketh is not entitled to the right to information as it is not a citizen,” the judge added.
Justice Ngugi argued that the High Court was the only body that could grant HCIG-Liketh reprieve as the petition committee cannot issue restraining orders against the signing of the deal.
She, however, added that the petition committee’s lack of power to stop the deal is not reason to let an aggrieved party suffer without a remedy.
HCIG-Liketh filed the suit claiming that the Centum-Gulf Energy consortium was not among the 26 firms that had submitted bids for the tender, hence its award was irregular.
Centum subsequently opposed the suit arguing that the matter should have been filed in the civil or commercial division and not the constitutional division. It also argued that the court does not have the jurisdiction to issue orders in the matter.
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