The fate of the Sh200 billion High Grand Falls dam will be known today (Friday) when the Court of Appeal will deliver the much-awaited ruling on whether the project will be rolled out.
A three-judge bench is expected to determine the tendering dispute for the proposed multipurpose dam, which is the single largest government undertaking after the Standard Gauge Railway.
The dispute on the planned project in Kitui and Tharaka Nithi counties, had been heard and determined by the Public Procurement Administrative Review Board for a record five times, before ending up in court.
It arose after the National Irrigation Board declined to award the contract to a consortium of British and Turkish firms-GBM and ERG Consortium, the bidder who won the tender competitively, despite numerous orders by PPARB.
GBM and ERG Consortium moved to the Appellate court after a ruling by High Court judge John Mativo on January 17 last year canceling the contract.
Interestingly, the case before Justice Mativo pitted two state agencies – the National Irrigation Board which had sued the PPARB, but the Attorney General, who is the Chief legal advisor for the government, threw his weight behind the latter.
NIB claimed the procurement review board had been biased and unfair against them while handling the tender case of the multi-billion contract.
But according to suit papers for the appeal case, the foreign contractor challenged Justice Mativo’s ruling on two main grounds that the decision of the Public Procurement Administrative Review Board were neither contested nor heard within the timelines provided in law.
GBM and ERG Consortium argued that the High court had no jurisdiction to deliver the judgement outside the time prescribed by Section 175 of the Public Procurement and Asset Disposal Act 2015.
“The learned judge couldn’t dismiss the decision by the Procurement review board which were not challenged within the statutory 14 days as set out in law” the British consortium submitted through lawyer Nyamu Mati.
The investors also cited the same law which provides that; “If either the High Court or the Court of Appeal fails to make a decision within the prescribed timeline of 45 days as provided under Section 175 subsection 3 and 4, the decision of the Review Board shall remain final and binding to all parties”.
The proceedings at the High Court filed by NIB were commenced outside the 14 days window and the ruling by Justice Mativo was not delivered until after a period of more than nine months.
In the High Court case, NIB moved to court to overturn several rulings made by the PPARB including the last one on March 21, 2019 where it was ordered to evaluate and award the contract to the London based bidder within 14 days.
The judicial review matter was significant because it set a precedent where a government procuring entity disagrees with the body mandated by law to determine tendering disputes and took the fight to the High court.
However, during the case hearings, the Attorney General strongly defended the Public Procurement Administrative Review Board over its handling of the tendering dispute, arguing the case undermined PPARB’s authority and mandate.
The AG argued that the NIB case should be dismissed because it is calculated to undermine the authority and tarnish the credibility of PPARB as the oversight body in procurement matters, erode public confidence in the Board and to delay compliance of its orders.
State Counsel Edward Munene Wanjohi told Justice Mativo that the PPARB observed the rules of natural justice and acted lawfully, fairly and reasonably in exercise of its statutory mandate under the Public Procurement and Asset Disposal Act.
“The matter has been before the PPARB in request for review applications number 80 of 2018, 104 0f 2018, 155 of 2018, and 22 of 2019, but in each time, NIB showed defiance and cunning conduct to the directions and guidance issued by the Board, thus violating the various procurement laws” reads the AG’s submission.
Through the replying affidavit sworn by Henock Kirungu, who is the PPARB secretary, the Attorney General also sought to have the matter dismissed on the basis it was time-barred arguing that all the four previous rulings by the procurement review board were never challenged before the High Court.
“This application is time-barred and serves to only demonstrate the extent to which the National Irrigation Board does not want to honor the orders made by the PPARB” reads the strong defense.
The AG further argued that the NIB application was made in bad faith and only calculated to tarnish the credibility of PPARB’s mandate and functions while ultimately eroding public confidence in procurement procedures, and to delay compliance of the Board’s previous orders.
Mr Wanjohi asked the court to throw out the NIB case in order to restore the authority of PPARB failure to which its legal mandate will be defeated and set a bad precedent.
According to Article 156 of the Constitution, the Attorney General is the principal legal advisor for the government, responsible for representing the national Government in court or any other legal proceedings to which it is a party.
In the case at the appellate court, The AG’s strong stand puts the National Irrigation Board in an awkward position, because this effectively means the government is keen to protect Kenya’s image as an investment destination.
The British consortium was among seven prequalified international construction firms – five of them Chinese which participated in the bidding process.
The High Grand Falls Dam Project is the single largest undertaking by the government after the Standard Gauge Railway and is part of the Sh1.5 trillion Lamu Port and Southern Sudan-Ethiopia Transport Corridor (Lapsset) projects.
In terms of size, the proposed water reservoir could be Africa’s second-largest after the Aswan High Dam in Egypt along the River Nile and Kenya’s biggest dam covering a massive 165 square kilometers. BY DAILY NATION