The Supreme Court has suspended the construction of a Sh6 billion grain handling facility at the port of Mombasa.
Deputy Chief Justice Philomena Mwilu, Mohamed Ibrahim, Smokin Wanjala, Isaac Lenaola and William Ouko issued the order pending the determination of an appeal filed by the Dock Workers union and Busia Senator Okiya Omtatah.
In the appeals, the two are challenging the process of awarding the project to three portside companies namely -Portside Freight Terminals, Portside CFS Limited and Heartland Terminals Limited.
In their brief ruling, the Supreme Judges said allowing the portside companies to proceed and implement the project at this stage would only render the consolidated appeals useless.
"The temporary order will not only preserve the status quo but also save Portaide companies from unnecessary expenditure should the appeal succeed," the judges said.
"Pending the hearing and determination of the consolidated appeal, a Conservatory Order is hereby issued restraining the Portside companies from constructing or developing a grain handling facility and Island Berth at GSection, Area belonging to Kenya Ports Authority (KPA) Mombasa following the license granted by the latter on 2nd August 2021,"
Owing to the nature of the project, the Judges said the appeals would be heard on a priority basis.
Some of the issues raised in the appeal that require determination are whether the procurement process undertaken by KPA met the minimum threshold of Articles 10, 201 and 227 of the Constitution, which lays down principles of governance, public finance, and guidelines on the procurement of public goods and services.
In particular, the Dock Workers union submits that the process adopted by KPA was not fair, transparent and competitive.
Omtatah on the other hand argues that the procurement process was discriminative of Kilindini Terminals Limited, and Multiship International among others.
The case emanated from the High Court where an order was issued declaring the procurement process a nullity for the reason that the process amounted to single sourcing.
The matter was appealed and the Court of Appeal overturned the decision which in effect paved the way for the development of the facility.
Aggrieved, the union and Omtatah appealed to the Supreme Court where an interim order has since been issued pending the determination of their consolidated appeals.
