Businessman sues KPA over mobile toilet tender citing integrity, accountability issues

A businessman has sued Kenya Ports Authority (KPA) and its Managing Director (MD) challenging a tender floated for the provision of mobile toilet services claiming that it (tender) raises serious integrity and accountability issues.

Mr Kelvin Kihara trading as Monkel Enterprises claims that the tender has been floated in a way that will deliberately lead to the respondents (KPA and MD) not getting the best value of their money that they will spend.

In his petition at the High in Mombasa, Mr Kihara is seeking a declaration that tender document for tender No.KPA/060/2025-26/HSE for the provision of mobile toilet services is unconstitutional for failing the test of transparency and fairness.

The petitioner (Mr Kihara) says that in or about March 2026, KPA floated the tender document which (tender) involves the supply of mobile toilets and urinals in Zones one, two and three within KPA land.

“The petitioner was interested in submitting its bid on the tender but realised that the tender as floated raised serious integrity and accountability issues which necessitated the filing of the petition,” the petition states in part.

According to the petitioner, the respondents set some conditions including proof of ownership for a serviceable desludging truck of not less than 10,000 litres.

Other conditions, he claims are, list and proof of ownership of the equipment needed including the units to service the contracts and a commitment letter to allow deductions from monthly costs for non-functional units or failure to observe cleanliness/desludging.

He argues that by the respondents opening doors to allow bidders who neither have a serviceable desludging truck of not less than 10,000 litres and those who do not own either the mobile toilets or urinals to make their bids, denied themselves opportunity to secure a service provider who was dependable and reliable.

“The petitioner avers that in other similar procurements, the respondents normally make a provision that one of the mandatory requirements for such bidders is that they (bidders) are also the owners of the instruments required for the provision of the required service,” he argues.

Through Gikandi & Company Advocates, the petitioner claims that the respondents have not given any reasons why they have department from the requirement in the tender for the provision of mobile toilets.

Mr Kihara also argues that the award of the tender to a provider who does not own either the serviceable desludging truck of not less than 10,000 litres or mobile toilets/urinals means that the service provider could run the risk of not always being in possession of such instruments.

“International best practices in the procurement of goods and services is for the procurer to give a preference to a bidder who owns the equipment necessary for the carrying out services that is being procured,” part of the petition states.

The petitioner says that it is further provided in the tender document that the award of the tender would be for each zone and based on the best evaluated tender to zone one meaning the award for zone two would be to the next best evaluated bidder and the zone three the third best tenderer.

“The tender award sums for zones one, two and three would be different thus there would be a disparity in contractual sums payable to the respondents to three different bidders, yet they (bidders) would invariably be providing the same quality,” argues the petitioner.

The petitioner also argues that the tender has been floated in such a way that will deliberately lead the respondents not getting the best value of their money that they will spend.

He further claims that the tender as floated will lead to corruption as successful bidders in zones two and three will be paid more money than the bidder for zone one yet all of them will be providing the same service.

“By creating disparities, zones one, two and three, the carrying out of the tenders will mean that there will be no credibility or accountability, there will be lack of transparency and good governance as it is not logical to pay different contractual sums to three different service providers providing the same service,” the petition states.

The petitioner also seeks for a permanent injunction restraining the respondents from proceeding with the intended award of the tender.

Justice Jairus Ngaah directed parties to make submissions on a preliminary point of law on whether it is open for the petitioner to pursue a remedy for his grievances by way of constitutional petition instead of the review and appellate mechanisms provided under the Public Procurement and Asset Disposal Act.

Highlighting of submissions has been fixed for May 4, 2026.