The High Court has declined to suspend a financial contract signed between the Government of Kenya and China for the construction of the Sh327 billion standard gauge railway. Justice David Majanja yesterday threw out an application filed by human rights activists Okiya Omtatah and Wycliffe Nyakina terming it an abuse of the court process. The judge struck out the application saying there is a pending petition by the duo which is challenging the award of tender to a Chinese firm.
“It is an abuse of the court process and must meet the fate of an application of such a nature,’’ he ruled. Omtatah and Nyakina had urged the court to put on hold the financial agreement signed between the two countries on May 11 this year arguing that it is unconstitutional as it undermines the rule of law. In their pleadings, they contended that the Attorney- General, Kenya Railways Corporation, the Public Procurement Oversight Authority and China Road and Bridge Corporation (Kenya) acted in bad faith by engaging in activities which are prejudicial to a pending petition contesting the rail project.
They also wanted the Attorney-General be directed to produce a copy of the multi-billion financial agreement of the standard gauge railway singed between the Government of Kenya and EXIM Bank of Peoples Republic of China. At the same time, the judge disqualified himself from handling the matter following accusations by the petitioners that he was delaying the case.
The activists had complained that the petition is yet to be disposed off three months after it was filed under a certificate of urgency. However, the judge explained that “the matter has not been delayed when viewed from any matrix of judging judicial proceedings. Any accusation or insinuation by the petitioners that the matter has been delayed lacks any factual or legal basis’’.
Consequently, the judge directed that the case file be placed before principal judge Richard Mwongo today to allocate it before another judge of the Constitution and Human Rights Division. In the initial petition, the activists claim they have documents providing evidence of impropriety in the procurement of the multibillion-shilling project.
The two say the government irregularly procured services for the construction of the Mombasa-Malaba standard gauge railway through single-sourcing instead of competitive bidding that would allow value for money. The railway project has faced opposition for some leaders and At one point, the heat on the project was so high that President Uhuru Kenyatta had to give an official statement from State House. Uhur uassured that the project would go on as planned.