The Supreme Court of Kenya’s decision in the case of Kenya Railways Corporation & 2 others v Okoiti & 3 others (Petition 13 & 18 (E019) of 2020 (Consolidated)) [2023] KESC 38 (KLR) (16 June 2023) (Judgment) is a landmark judgment that has significant implications for public procurement and constitutional law in Kenya.
It was determined by Supreme Court Justices, the Hon. Lady Justice Philomena Mbete Mwilu, FCIArb, MGH, DCJ & V-P, Hon. Mr. Justice Mohammed Ibrahim, CBS, Hon. Justice (Dr.) Smokin Wanjala, FCIArb, CBS, Hon. Lady Justice Njoki Ndungu, FCIArb, CBS & Hon. Mr. Justice William Ouko, FCIArb, CBS.
This article provides an in-depth analysis of the case, its background, key issues, and the Supreme Court’s ruling.
Background of the Case
The case revolves around the procurement process for the construction of the Standard Gauge Railway (SGR) project, a major infrastructure initiative aimed at modernizing Kenya’s railway system. The project was awarded to the China Road and Bridge Corporation (CRBC).
However, the procurement process was challenged by Okiya Omtatah Okoiti and the Law Society of Kenya (LSK), who argued that it violated the principles of fair, equitable, transparent, competitive, and cost-effective procurement as stipulated in Article 227 of the Constitution of Kenya, 2010.
Key Issues
The Supreme Court was tasked with addressing several critical issues:
Compliance with Article 227 of the Constitution: Whether the procurement process for the SGR project adhered to the constitutional requirements for public procurement.
Applicability of the Public Procurement and Disposal Act (PPDA), 2005: Whether the SGR procurement was exempt from the PPDA, 2005, under Section 6(1), which allows for exemptions in government-to-government contracts.
Admissibility of Illegally Acquired Documents: Whether documents obtained illegally could be admitted as evidence in court.
Supreme Court’s Ruling
On June 16, 2023, the Supreme Court delivered its judgment, addressing each of the key issues:
Compliance with Article 227: The Court held that the procurement process for the SGR project complied with Article 227 of the Constitution. The Court found that the process was conducted in a manner that was fair, equitable, transparent, competitive, and cost-effective.
The judgment emphasized that the procurement was a government-to-government contract, which justified certain deviations from the standard procurement procedures.
Exemption from the PPDA, 2005: The Supreme Court ruled that the SGR procurement was exempt from the provisions of the PPDA, 2005, by virtue of Section 6(1). This section allows for exemptions in cases where the procurement is conducted under a government-to-government agreement.
The Court noted that the SGR project fell within this category, thereby validating the procurement process.
Admissibility of Illegally Acquired Documents: The Court addressed the issue of whether documents obtained illegally could be admitted as evidence. It held that such documents are generally inadmissible unless they are the only means to establish a critical fact.
In this case, the Court found that the documents in question were not the sole means of proving the alleged procurement irregularities and thus upheld their exclusion.
Implications of the Judgment
The Supreme Court’s decision has several important implications for public procurement and constitutional law in Kenya:
Clarification on Government-to-Government Contracts: The ruling provides clarity on the applicability of the PPDA, 2005, to government-to-government contracts. It underscores the need for transparency and accountability even in such contracts, while recognizing the unique nature of these agreements.
Reaffirmation of Constitutional Principles: The judgment reaffirms the principles of fair, equitable, transparent, competitive, and cost-effective procurement as enshrined in Article 227 of the Constitution. It highlights the importance of adhering to these principles to ensure public trust in government procurement processes.
Guidance on Admissibility of Evidence: The Court’s stance on the admissibility of illegally acquired documents provides valuable guidance for future cases. It emphasizes the need to balance the pursuit of justice with the protection of legal processes and the rule of law.
Conclusion
Government to Government Procurement in Kenya: The Standard Gauge Railway in Supreme Court Petition No. 13 & 18 (E019) of 2020 is a landmark decision that addresses critical issues in public procurement and constitutional law.
By upholding the principles of fair and transparent procurement and clarifying the applicability of the PPDA, 2005, the Court has set a precedent that will guide future procurement processes in Kenya. This case serves as a reminder of the importance of adhering to constitutional principles and legal frameworks to ensure accountability and public trust in government operations.
For more detailed legal insights and assistance with compliance, contact our legal experts at Muhoro & Gitonga Associates. We provide comprehensive legal services to help your business navigate complex legal landscapes.
For those who wish to continue exploring this fascinating landscape, see the Full Judgment in Kenya Railways Corporation & 2 others v Okoiti & 3 others (Petition 13 & 18 (E019) of 2020 (Consolidated)) [2023] KESC 38 (KLR) (16 June 2023) (Judgment)
