KPA, Yatani sued over second grain bulk handling facility

Kenya Ports Authority headquarters in Mombasa.

An activist has sued the Kenya Ports Authority (KPA) and Treasury Cabinet Secretary Ukur Yatani over a contract to develop a second grain bulk handling facility at the port of Mombasa.

Okiya Omtatah says the KPA board acted beyond its legal powers and without authority in procuring the contract, which is the mandate of the managing director.

He says the board made irrelevant considerations in giving the contract and a licence to Portside Freight Terminals Ltd, a company associated with Mombasa Governor Hassan Joho’s family.

In his petition at the High Court in Mombasa, Mr Omtatah says the board’s decision violates the legitimate expectations of six companies that expected their proposals would be considered in view of the newly adopted Specially Permitted Procurement Procedure in the tendering process.

Apart from Portside Freight Terminals, the six other companies named as interested parties are Kilindini Terminals Ltd, Mombasa Grain Terminal Ltd, Kapa Oil Refinery, Africa Ports and Terminals, Multiship International, and Kipevu Inland Container EPZ Ltd. The interested party is the Dock Workers Union.

“KPA’s Board of Director’s decision purporting to approve a proposal that sought to construct a facility outside the approved location under the KPA Master Plan is excessive, abuse of power and irrational,” Mr Omtatah argues in his petition.

The petitioner wants a declaration that the board’s decision to solely consider Portside Freight Terminal Ltd’s proposal though it clashes with the KPA Master Plan is illegal and discriminatory.

Mr Omtatah says the KPA Master Plan identified and projected that the second grain bulk handling facility was to be located in Dongo Kundu or the Lamu port.

He says Portside Freight Terminal submitted its application through a letter that was received by the KPA managing director and a general manager proposing the construction of a new berth that falls outside Dongo Kundu and the Lamu port.

He argues that the KPA board sought to have the Master Plan reviewed and amended to accommodate Portside Freight Terminal’s facility, indicating that it was keen to ensure the company would be granted the licence despite the availability of others.

“It would not be far-fetched to deduce that the Board appear to either be compromised or in cahoots with the first interested party (Portside Freight Terminal,” Mr Omtatah argues.

Mr Omtatah says the decision to approve the licence lies with KPA management, not the board.

Mr Omtatah says the six companies were discriminated against and their proposals were never considered in relation to the use of the Specially Permitted Procurement Procedure, thus locking them out of the procurement process.

The petitioner also wants a declaration that the procurement and issuing of a licence for a second bulk grain handling facility be made through competitive bidding as required by the Constitution.

Mr Omtatah wants an order issued to quash the Treasury CS’s decision allowing KPA to use the Specially Permitted Procurement Procedure for a second grain handling facility in favour of Portside Freight Terminal.