NAIROBI, Kenya, Nov 15 – Activist Okiya Omtatah has secured a significant victory after the Supreme Court declared that the Kenya Ports Authority’s (KPA) decision to issue a licence and wayleave to Portside Freight Terminals Limited — a firm associated with the Joho family — for a second bulk-grain facility at the Port of Mombasa was unconstitutional.
The ruling deals a blow to procurement practices within one of Kenya’s most critical logistics corridors.
The Court found that KPA’s award — issued through the Specially Permitted Procurement Procedure (SPPP) under Section 114A of the Public Procurement and Asset Disposal Act — violated constitutional principles of transparency, fairness, competition, and prudent use of public resources.
Its decision followed Omtatah’s application to correct an omission in the Court’s June 30, 2025 judgment, which failed to include the term “wayleave” in the final orders despite finding that both the licence and wayleave had been unlawfully issued.
“The decision of KPA to grant Portside the license and wayleave to establish a second grain bulk facility through the Specially Permitted Procurement Procedure under Section 114A of the PPAD Act was inconsistent with Articles 10(2)(c), 201(a) and 227(1) of the Constitution.”
“The correction does not alter the substance of the judgment but ensures the order reflects the Court’s true intention.”
The dispute dates back to 2021, when KPA approved the licence and wayleave for Portside without open competitive bidding, opting for the G-Section Island berth instead of the Dongo Kundu or Lamu sites recommended in its master plan.
The High Court later suspended the award after Omtatah argued that the KPA board acted ultra vires by assuming powers reserved for its accounting officer, and that the Cabinet Secretary improperly approved the SPPP.
The Sh5.8 billion ($45 million) investment had been touted as a major development intended to introduce competition to existing grain-handling operations at the port.
In its latest ruling, the Supreme Court invoked Section 21(4) of the Supreme Court Act, enabling it to correct clerical errors without reopening the substance of the judgment. The correction nullifies both the licence and the wayleave, effectively stopping the project unless KPA restarts the procurement in a constitutionally compliant manner.
The decision means importers, grain traders and logistics operators will need to reassess planned expansions at the port. It also signals heightened judicial scrutiny over future port-sector tenders, particularly those involving politically connected businesses.
