Court declines to block Kenya-China rail deal

May 26, 2014 2:35 pm
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Omtatah (pictured) and Nyakina had urged the court to put on hold the financial agreement signed on May 11 between the two countries, arguing that it is unconstitutional as it undermines the rule of law/FILE
Omtatah (pictured) and Nyakina had urged the court to put on hold the financial agreement signed on May 11 between the two countries, arguing that it is unconstitutional as it undermines the rule of law/FILE
NAIROBI, Kenya, May 26 – The High Court on Monday rejected a petition to suspend the financial contract signed between the Government of Kenya and China for the construction of the Sh327 billion Standard Gauge Railway.

Justice David Majanja threw out the application filed by human rights activists Okiya Omtatah and Wycliffe Nyakina terming it an abuse of the court process.

Judge Majanja dismissed the application on grounds that there is a pending petition by the duo which is challenging the award of the tender to a Chinese firm.

“It is an abuse of the court process and must meet the fate of an application of such a nature,” he ruled.

Omtatah and Nyakina had urged the court to put on hold the financial agreement signed on May 11 between the two countries, arguing that it is unconstitutional as it undermines the rule of law.

In their pleadings, they contended that the Attorney-General, Kenya Railways Corporation, the Public Procurement Oversight Authority (PPOA) and China Road and Bridge Corporation (Kenya) acted in bad faith by engaging in activities which are prejudicial to a pending petition contesting the Nairobi-Mombasa rail project.

Omtatah and Nyakina also wanted the Attorney-General be directed to produce a copy of the multibillion financial agreement of the Standard Gauge Railway signed between the Government of Kenya and Exports and Import (EXIM) Bank of China.

At same time, Judge Majanja has disqualified himself from handling the main petition following accusations by the petitioners that he was delaying the case.

The activists had complained that the petition is yet to be disposed off three months after it was filed under a certificate of urgency.

However the judge explained that “the matter has not been delayed when viewed from any matrix of judging judicial proceedings. Any accusation or insinuation by the petitioners that the matter has been delayed lacks any factual or legal basis.”

Consequently, Judge Majanja directed that the case file be placed before Principal Judge Richard Mwongo to allocate it before another judge of the Constitution and Human Rights Division.

The activists claim they have documents providing evidence of impropriety in the procurement of the multi-billion shilling project.

The duo say the government irregularly procured services for the construction of the Mombasa-Nairobi Standard Gauge Railway through single-sourcing instead of competitive bidding that would allow value for money.

Kenya and China signed an agreement on the financing of the first phase of the Standard Gauge Railway project in a ceremony witnessed by President Uhuru Kenyatta, Chinese Premier Li Keqiang and three Heads of State from the East African region.

The first phase of the project will cover 609.3 kilometres from the port of Mombasa to Nairobi and will cost Sh314.2 billion ($3.6 billion). 90 per cent of the financing will come from China Exim Bank while the remaining 10 per cent will be from the Government of Kenya.

The project set to kick off in October will be completed in three and half years and will pass through eight counties including Mombasa, Kilifi, Kwale, Taita-Taveta, Makueni, Kajiado, Machakos and Nairobi.

The Standard Gauge Railway is aimed at providing efficient and cost effective rail transport for both freight and passengers.

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