The High Court had stopped Kenya Power from proceeding with a Sh22 billion tender for the supply of meters, pending the determination of a petition challenging the process leading to the award of the lucrative contract.
Justice John Chigiti certified as urgent a petition by Benedict Kabugi Ndung’u and directed the power utility company not to sign any agreement with winners.
Mr Kabugi moved to court last week arguing that the tender’s eligibility criteria was watered down to include local assemblers of meters and not manufacturers as earlier advertised, through six addenda, a fact that changed the substance of the original tender document.
“The leave so granted do operate as a stay of implementation of any decision arising from the notification of intention to award dated 2nd May 2023 including but not limited to actual tender award, signing of the procurement contract, execution and/or performance of procurement contract…,” said the judge.
The tender was advertised in February for the supply of meters by local manufacturers only.
Four local firms were issued with notifications including Inhemeter Africa Company Ltd, Smart Meter Technology Ltd, Yocan Group Ltd and Magnate Ventures Ltd.
But Mr Kabugi says the entire process leading to the award was marred by procedural and substantive irregularities including breach of several sections of the Public Procurement and Asset Disposal Act.
He says mandatory terms on conditions for tender and eligibility were substantially and irregularly altered to defeat the need for competitive bidding.
The judge directed the matter to be mentioned on June 28 for directions.
“The impugned subject tender has been floated and awarded against the backdrop of multiple other incomplete tender processes undertaken by the same respondent for the same items which has therefore exposed the Kenyan taxpayer to wanton wastage and the possibility of deadstock of meters,” said Mr Kabugi.
Mr Kabugi has, at the same time, written to the Public Procurement Regulatory Authority (PPRA) seeking an investigation into the tender.
The regulator wrote to Kenya Power managing director Joseph Siror last week, asking the power utility company to demonstrate if the tender complied with the principles of fairness and non-discrimination of bidders.