Supreme Court clears Uhuru Kenyatta of any wrongdoing in Ksh500 billion SGR deal
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Reprieve for Uhuru Kenyatta as Supreme Court nullifies Ksh500 billion SGR verdict on procurement process
Reprieve for Uhuru Kenyatta as Supreme Court nullifies Ksh500 billion SGR verdict on procurement process.
On Friday, June 16, the Supreme Court overturned the Court of Appeal’s decision that the Ksh500 billion Standard Gauge Metre Railway (SGR) contract between Kenya and China violated procurement laws.
The Standard Gauge Railway project’s procurement procedure, according to the five-judge panel that included Deputy Chief Justice Philomena Mwilu and justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u, and Wiliam Ouko, was carried out in accordance with Article 227 of the Constitution.
The justices also noted in their ruling that the procurement was made under a government-to-government contract, making it immune from the 2005 Public Procurement Disposal Act’s rules.
“In addition, the SGR project was subject to interrogation before Parliament in two committees, and none of the respondents opted to be involved. 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.
“In the premises, we respectfully disagree with the appellate court and hold that the procurement process for the SGR project met the requirements of Article 227 of the Constitution as read together with the provisions of the PPDA, 2005,” the verdict by DCJ Mwilu read.
The SGR deal was initiated by the late President Mwai Kibaki with contracts approved by President (Rtd) Uhuru Kenyatta’s administration.
Okiya Omtatah, a senator and activist from Busia, filed a case with the High Court objecting to the contracts that the China Road and Bridge Corporation (CRBC) was awarded as a consequence of the SGR’s procurement procedure.
Additionally, the Law Society of Kenya requested that the High Court prevent CRBC from building SGR. The petitions, which were submitted in February and May 2014, claimed that the government hadn’t done its due diligence.
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Uhuru administration was accused of failing to independently conduct a feasibility study and design of the project before seeking a contractor and tasking CRBC with the project. Yet, it was reportedly blacklisted by the World Bank in January 2009.
According to the activists, single sourcing or direct procurement for a mega project such as the SGR was illegal.
They thus argued that the government should have issued a restricted tender inviting other Chinese firms with the requisite qualifications to battle for the contract.
The High Court, in a judgment issued by Justice Isaac Lenaola (now Supreme Court judge), dismissed the consolidated petitions in November 2014 on the grounds of technicalities.
Omtatah and LSK moved to the Court of Appeal to seek legal redress, with the apex court seeking to establish whether procurement laws were flawed.
The Court of Appeal upheld the High Court’s decision save for setting aside the finding that the procurement of the SGR project was exempt from the provisions of The Public Procurement and Asset Disposal Act, 2005.
It also ruled that Kenya Railways Corporation failed to comply with, and violated the provisions of Article 227 (1) of the Constitution, Sections 6(1) and 29 of the PPDA, 2005, in procuring the SGR project.
Kenya Railways thus proceeded to the Supreme Court, which overturned the ruling.
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