Union withdraws from case challenging Joho-linked firm in port deal, Omtatah stays on

The Dock Workers Union has pulled out of an appeal challenging the construction of a second grain bulk handling facility at the port of Mombasa, which was granted to firms linked to Mining and Blue Economy Cabinet Secretary, Hassan Joho.

In an application filed at the Supreme Court, the union said it was no longer opposed to the construction of the facility - which was granted to Portside Freight Terminals - saying it will create job opportunities at the port of Mombasa.

However, Busia Senator Okiya Omtatah, who was also an appellant in the case, opposed plans to withdraw the case, saying he would proceed with the matter as no public interest can ensue from violations of the law and public policy.

“It has become apparent that better job opportunities will be created at the Port of Mombasa, which will eventually result in improving standards of living. Besides, the wider public stands to benefit not only from the additional revenue but also the likely decrease in grain and food prices because of competition in the sector,” the union’s General Secretary, Simon Sang said in the application.

The union said the development of an offshore berth, which will be a common user berth at the Port of Mombasa, will result in additional cargo traffic.

“There is no plausible reason for the union to proceed with the case, which could result in curtailing additional cargo handling and better opportunities for its members as well as an additional revenue stream to the KPA of more than Sh1 billion,” he said.

Mr Omtatah said in a rejoinder that he believes that the case was being withdrawn for improper motives as Mr Sang has not demonstrated that it would be detrimental to the interest of dock workers and the public interest if the project is established either in Lamu or Dongo Kundu in compliance with the law and the Port’s masterplan.

“The dispute concerns the rule of law and constitutional validity of the issuance of the license and wayleave to Portside Freight Terminals Ltd for the operation of a second bulk grain handling terminal at the Port of Mombasa,” he said.

The apex had temporarily stopped the construction of the facility in a ruling in July, pending the determination of the appeal.

Mr Omtatah and the union appealed against the establishment of the second facility as they questioned the process used in awarding the tender to Portside Freight Terminals Ltd, Portside CFS Ltd, and Heartland Terminals Ltd.

“Bearing these factors in mind, we are of the view that should Portside Companies proceed to implement the project, the appeal will be rendered nugatory. In any event, at this stage, we are of the view that a conservatory order will, not only preserve the status quo but also save Portside Companies themselves from nugatory expenditure should the appeal succeed,” Deputy Chief Justice Philomena Mwilu and Justices Mohammed Ibrahim, Smokin Wanjala, Isaac Lenaola, and William Ouko said.

Mr Yusuf Abubakar, the director of Heartland Terminals Ltd stated that the project would cost approximately $45 million (about Sh5.9 billion).

In the ruling, the judges said Mr Omtatah had a valid argument as to whether the procurement process undertaken by Kenya Ports Authority (KPA) met the minimum threshold of a procurement contemplated in the constitution and various provisions of the Public Procurement and Assets Disposal Act (PPDA).

The High Court declared the procurement process a nullity for the reason that the process amounted to single sourcing, but the decision was overturned by the Court of Appeal, in the process giving the procurement process a clean bill of health.

The companies were allowed to develop an overhead conveyor belt through the G-Section area of the port of about 450 metres in length to the portside facility.

Portside Freight Terminals Limited had proposed the development of a common user Island Berth (at no cost to KPA) by investing $45,000,000 as long as it was granted a wayleave licence for the passage of overhead conveyors to its grain handling terminal on its private land outside the Port precincts (but close to it) through the ‘G’ section area of the Port, which is heavily underutilised.