The Supreme Court has ruled that the procurement process of the Ksh500 billion contract between Kenya and China for the construction of the Standard Gauge Railway(SGR) was not flawed.
A judgement rendered by Supreme Court judges led by Deputy Chief Justice Philomena Mwilu overturned the Court of Appeal's decision that had found that procurement laws were flouted when the SGR project contract was being awarded to China Bridges and Railway Corporation (CBRC).
According to the five apex court judges, the entire execution of the multi-billion project did not violate any procurement laws.
“The SGR procurement was undertaken as a government-to-government contract hence exempt from the provisions of the Public Procurement Disposal Act, 2005 by virtue of section 6(1) of the said Act. Hence the process was in conformity with the provisions of Article 227 of the Constitution,” Supreme Court ruled.
While setting aside the appellant court finding, the Judges further noted that the SGR project was subject to interrogation before Parliament.
"The said parliamentary process, which is open to the public, cleared the projects. Under our constitutional design, the people have the power to exercise their oversight power through elected representatives who are domiciled in Parliament. Whether a citizen agrees with or was satisfied with what was undertaken is a matter of conjecture provided that the laid-out procedure was followed," the apex court judges stated.
"Like in every democracy, the concept of representing the people or public interest remains a hydra-headed mongrel which cannot be defined with certainty as it is never possible to get a homogenous viewpoint from the populace."
Justices Mwilu, Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung'u and William Ouko ruled that the procurement of CRBC was not undertaken by Kenya Railways Corporation but by the Government through the Ministry of Transport.
The judges established that the provisions of the Public Procurement and Asset Disposal Act 2005 were ousted in the SGR project.
"It has not been demonstrated how the KRC, acting not as the procuring entity, but on the directives of the Executive, failed to comply with the provisions of Article 227 (1) of the Constitution. In any event, government-to-government procurement is permissible under section 6 of the PPDA 2005. We did not understand any of the respondents to be challenging the constitutionality of the said statutory provision because that they did not do," the judges ruled.
The decision comes after the government challenged a declaration by the Court of Appeal that the contract was illegal.
On June 19, 2020, the court of appeal composed of justices Marth Koome (now the Chief Justice), Gatembu Kairu and Jamila Mohammed agreed with activist Okiya Omtatah that Kenya Railways failed to follow procurement laws and violated the constitution.
Aggrieved by the decision Kenya Railways Corporation, the Attorney-General and the Public Procurement Oversight Authority lodged an appeal before the supreme court challenging the Court of Appeal's judgment that the procurement laws were not followed.