Kenya Airports Authority (KAA) was planning to sell trees at the Eldoret International Airport valued at Sh443 million, which they have not listed as part of their assets, court filings and the Auditor-General’s report have revealed.
The eucalyptus trees were to be auctioned last year but the plans were called off, sparking a court case after a group of timber merchants accused the KAA of introducing oppressive terms after cancelling the initial bids.
An Auditor-General report, however, says trees planted at the Eldoret Airport were not listed as part of the authority’s assets in their financial statements.
“The authority had biological assets in the form of trees planted at Eldoret International Airport valued at Shs443 million as of June 2021,” the report stated.
In the court case, Timber Manufacturers Association sought to compel the KAA to proceed with the auction of the trees but the case was rejected by the Environment and Land Court.
Justice Stephen Kibunja threw out the case saying the association failed to exhaust the available dispute resolution mechanism as required by the Public Procurement and Disposal Act.
“Where any party is aggrieved by any decision pertaining to the said process, the PPAD Act has put in place a dispute resolution process that ought to exhaust before parties come to court,” said the judge.
The judge said where there is an alternative statutory remedy, it must be exhausted first, before moving to court.
The association said it has 600 members drawn from the forestry industry as verified by the Kenya Forest Service.
They said as concerned investors with the potential and willingness to be part and parcel of the procurement process.
The association accused the KAA of taking down and changing the initial notice of July 16, 2021, which invited interested bidders to participate in a public auction of eucalyptus trees at the Eldoret International Airport.
They claimed the move was a violation of their right to public participation in a matter of disposal of public resources and was a breach of their right to fair competition, legitimate expectation, equal opportunity and fair administrative action.
The KAA opposed the case in a response by Patrick Wanjuki, general manager of procurement and logistics, who said the association could not challenge the decision because they never participated in the tender.
As a prospective tenderer who was yet to submit the tender documents, the association lacks the locus to commence the case.
He further said the association should have exhausted administrative remedies, which require that where a dispute resolution mechanism exists outside courts, the same ought to be exhausted before moving to court.
“That the first respondent’s (KAA) preliminary objection on jurisdiction is upheld and both the Petition and Notice of Motion are hereby struck out for having been filed in the wrong forum and before exhausting the other statutory processes provided before coming to court,” the judge said.
The court also lifted the order, which had been issued against KAA from going ahead with plans to harvest the trees.
