Busia Senator and public interest litigator Okiya Omtatah is elated after the Supreme Court nullified a procurement deal between the Kenya Ports Authority (KPA) and Portside Freight Terminals Limited, a company with links to the current Cabinet Secretary for Mining and Blue Economy — Hassan Ali Joho.
The case revolves around the rights to build a second grain handling facility at the Mombasa Port.The top court found that the Kenya Ports Authority (KPA) breached constitutional and statutory procedures by using a special procurement shortcut to award the deal without competitive bidding or public participation.The Specially Permitted Procurement Procedure (SPPP) was introduced in 2017 to fast-track sensitive or urgent procurements but KPA was faulted for applying it unlawfully.
“The decision of KPA to grant Portside the license and way leave 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,” said the ruling delivered by a panel led by Deputy Chief Justice Philomena Mwilu.
While the ruling overturns a Court of Appeal decision that had reinstated the deal, it also delivers a pointed message to public institutions: neither urgency nor national interest can excuse opaque shortcuts. The Court drew a sharp line between policy guidance and executive function, ruling that KPA’s Board of Directors usurped the role of the accounting officer in initiating the procurement, a move that ultimately invalidated the process.
“In determining this question, the High Court was persuaded by the appellant’s argument and upheld it; that the office mandated to apply for the permission, authority and license is the procuring entity in terms of Section 2 of the PPAD Act; that the Board was not a procurement entity for purposes of seeking a SPPP, which is also the preserve of the accounting officer,” the court ruled.
Though the grain facility itself would have addressed logistical pressure at the port, the project’s location violated KPA’s own long-term master plan, which earmarked Dongo Kundu or Lamu as notable sites for expansion. The Supreme Court criticized KPA’s failure to revise the plan with stakeholder input before pivoting to Mombasa, a procedural lapse that compounded the violation.
While Portside Freight Terminals and its co-respondents maintained that the process was lawful and urgent, the court held firm: bypassing competition in the name of efficiency cannot override constitutional imperatives of transparency, fairness, and public involvement.
Speaking after the judgment, Senator Omtatah framed the ruling as a broader constitutional reset for public procurement. He described the decision as a reaffirmation that parastatal boards have no power to override public planning processes or shield preferred bidders from open competition.
“This case was never about one terminal or one company. It was about the principle that no public agency, no matter how strategic, can operate outside the Constitution,” he said.
Senator Omtatah has consistently challenged procurement deals that he believes flout the law due to their lack of transparency. The concealment of procurement practices, while cited by government agencies as necessary, have opened up opportunities for political patronage and corruption.