"Supreme Court gives SGR deal with China clean bill of health" 17 June 2023

The government legally acquired Standard Gauge Railway (SGR), the Supreme Court has ruled.

In its final verdict on Friday on the contentious issue of whether Kenya and China’s deal was above board, a five-judge bench unanimously agreed that the government and the public were involved through parliament.

At the same time, Deputy Chief Justice Philomena Mwilu, Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u and William Ouko found that the procurement process was undertaken as a government-to-government contract and did not require weighing against Public Procurement Disposal Act, 2005.

“Whether a citizen agrees with or was satisfied with what was undertaken is a matter of conjecture provided that the laid-out procedure was followed. Like in every democracy, the concept of representing the people or public interest remains a hydra-headed mongrel, which cannot be defined with certainty, as it is never possible to get a homogenous viewpoint from the populace,” stated the bench headed by DCJ Mwilu. [...]

Kenya Railways moved to the apex court to challenge the Court of Appeal’s finding that it did not float the project to competitive bidding.

Court of Appeal had found that KR headhunted China Road and Bridge Corporation (CRBC) instead of subjecting it to competitive bidding. 

After headhunting CRBC, it also emerged that the contract was sealed before China’s Exim Bank agreed to finance the multi-billion project. Questions were also raised on CRBC being barred by Word Bank from carrying out projects.  

The CJ, Kairu, and Jamila, on June 19, 2020, unanimously agreed that KR flouted procurement law and the Constitution as the Memorandum of Understanding between Kenya and China was that should the feasibility study be approved, then CRBC could be contracted to execute it. 

“Consequently, irrespective of how the project was going to be funded, the implementing entity would be CRBC. In other words, whereas there was no clarity at that time on how the project would be financed, it was crystal clear that once funding was secured, (however that would be achieved), the project would be executed by CRBC,” justices Koome, Kairu and Mohammed ruled. [...]