NAIROBI, Kenya – The Supreme Court has declared that the Kenya Ports Authority (KPA) violated the Constitution in awarding a license to Portside Freight Terminals Limited to develop a second grain bulk handling facility at the Port of Mombasa.
In a landmark ruling delivered this week, the apex court faulted KPA’s use of a Specially Permitted Procurement Procedure, stating it breached constitutional requirements on transparency, fairness, and public accountability.
The case was filed by Busia Senator Okiya Omtatah, who challenged the legality of the procurement process, accusing KPA of bypassing competitive bidding in favor of a backroom deal.
Omtatah argued that the procedure used failed to uphold constitutional principles of good governance and fiscal responsibility.
The court found that the process contravened Articles 10(2)(c), 201(a), and 227(1) of the Constitution, which mandate integrity, prudent use of public resources, and fair competition in public procurement.
“The use of the Specially Permitted Procurement Procedure under Section 114A of the Public Procurement and Asset Disposal (PPAD) Act was found to be unconstitutional,” the court ruled.
While affirming its jurisdiction under Article 163(4)(a) of the Constitution, the Supreme Court clarified that Omtatah had legal standing to file the case but could not act on behalf of other unnamed parties not formally joined in the proceedings.
The court also ruled that while the KPA Board acted within its legal mandate, the procurement method itself was flawed and unconstitutional.
“Having found that the Court of Appeal erred when it declared that the invocation of the specially permitted procurement procedure…did not violate the Constitution, it follows that the judgment of the Court of Appeal is for setting aside,” the ruling stated.
The judgment is a major win for public interest litigation and adds weight to calls for greater transparency in the management of state-owned assets and procurement processes.
The decision also underscores the judiciary’s role in curbing opaque deals, especially in the context of strategic infrastructure such as the Port of Mombasa—a key economic artery for Kenya and the region.
