The Supreme Court has nullified a license awarded by the Kenya Ports Authority (KPA) to Portside Freight Terminals Limited for the development of a second grain bulk handling facility at the Port of Mombasa, ruling that the procurement process was unconstitutional.
The case, filed by Busia Senator Okiya Omtatah, challenged the legality and transparency of the award, which was carried out through a Specially Permitted Procurement Procedure under Section 114A of the Public Procurement and Asset Disposal (PPAD) Act.
In a landmark judgment, the apex court found that the process violated key constitutional provisions specifically Articles 10(2)(c), 201(a), and 227(1) which guarantee the principles of good governance, fiscal responsibility, and fair competition in public procurement.
“The use of the Specially Permitted Procurement Procedure under Section 114A of the PPAD Act was unconstitutional,” the court ruled, adding that the procurement failed to meet the standards of transparency, fairness, and accountability.
While affirming its jurisdiction under Article 163(4)(a) of the Constitution, the Supreme Court held that Omtatah had legal standing to bring the case but could not represent other parties not formally joined to the proceedings.
Notably, the court found that KPA’s Board of Directors did not exceed its mandate, ruling that the board acted within its authority and did not usurp the role of the accounting officer during the controversial process.
The Court also faulted the Court of Appeal’s earlier ruling that had upheld the procurement process, declaring:
“Having found that the Court of Appeal erred when it declared that the invocation of the specially permitted procurement procedure under Section 114A of the PPAD Act by KPA did not violate the Constitution, it follows in the result that the judgment of the Court of Appeal is for setting aside.”
The decision is being hailed as a major victory for public oversight and constitutional compliance in public procurement, particularly in the management of strategic national assets such as seaports.
