KPA fights case faulting tender to Joho family firm


A Container Terminal within the Port of Mombasa. PHOTO | KEVIN ODIT | NMG

The Kenya Ports Authority (KPA) wants suspension of a case challenging a decision to award Portside Freight Terminals Ltd, a firm owned by the Joho family, a deal to develop the second bulk grain handling facility at the port of Mombasa.

The KPA is seeking the suspension of the case filed by activist Okiya Omtatah, pending the filing, hearing and determination of its intended appeal against a High Court ruling dismissing its application to have the case struck out.

The port agency argues that the judge erred in finding that public interest would be well served in relying on illegally obtained evidence despite the rule of law being one of the national values in the Constitution.

It also says that unless the proceedings are suspended, it will be prejudiced during the trial because it will be forced to look at and answer the same evidence that violates its constitutional rights and the law.

“The intended appeal raises substantial questions of law. They deserve input from the Court of Appeal to avoid proceeding on doubtful foundations,” argues KPA in its application.

Justice John Onyiego had dismissed applications by KPA and Portside Freight Terminals Ltd, seeking to have the case struck out.

The judge ruled that from the particulars of the petition and arguments from both sides, the scales of justice tilt in favour of it (petition) being heard on merit so that each party gets to argue.

“The issues raised in the petition are weighty and of public importance, hence cannot be wished away casually; no party will suffer prejudice by the suit proceeding to full hearing,” said Justice Onyiego.

KPA had wanted the documents in support of the petition by Mr Omtatah struck out for allegedly having been illegally obtained.

It argued that the petition’s evidence is based on documents either marked as confidential or which are internal communication between itself and the Treasury Cabinet Secretary who is the second respondent.

The ports agency told the court that Mr Omtatah never requested any relevant public body to access the papers that he seeks to rely on.

KPA listed 12 documents it wanted to be expunged, among them an application by Portside Freight Terminals Ltd dated April 6, 2020, and received by KPA on May 15, 2020.

He says that the board took into account irrelevant considerations in relation to Portside Freight Terminals Ltd’s proposal for the development of the grain handling facility.

Mr Omtatah says that the respondents’ decision violates legitimate expectations of six companies that expected that their proposals would be considered.

The application will be heard May 30.

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