KPA seeks dismissal of petition challenging restricted tender for port equipment

Kenya Ports Authority (KPA) says its intention to procure critical port operations equipment, through three tenders, is integral to its modernisation programmes aimed at enhancing operational efficiency in ports and Inland Container Depots (ICD).

KPA, which wants an application seeking to suspend the tenders dismissed, says enhancement of efficiency is by increasing container throughput and reducing ship turnaround time.

The tenders are Tender No.KPA/036/2025-26 ES Supply, Testing and Commissioning of 48 Terminal Tractors, Tender No.KPA/039/2025-26/ES Supply, Testing and Commissioning of 14 New Reachstackers and Tender No.KPA/053/2025-26/CCE Supply, Testing and Commissioning of 15 New Forklift Trucks.

KPA, through an affidavit of its Principal Supply Chain Officer (Tenders) Daniel Amuyunzu, says that the decision to procure all units including those that had been previously pre-planned in previous procurement plans is due to unprecedent increase in vessel traffic for Lamu and Mombasa ports.

“These are business dynamics that require urgent capital investments in equipment to ensure efficient cargo handling and port operations which not only enhances ship turnaround time to the benefit of maritime traders but also enhance safe cargo handling thus placing Kenyan ports as world class ports of choice,” Mr Amuyunzu states.

Busia Senator Okiya Omtatah, Bernard Muchiri and Naomi Nyakerario (petitioners) have filed a petition challenging the tendering process arguing that it is being conducted through restricted tendering in direct contravention of approved procurement plan, the constitution and the law.

They want among others interim orders issued suspending the three tenders and restraining KPA and its Managing Director from proceeding with, awarding or entering any procurement contract pending hearing and determination of the petition.

The petitioners have sued KPA, its MD, Public Procurement Regulatory Authority (PPRA), the National Treasury and the Attorney General. It has named Katiba Institute as an interested party.

Mr Amuyunzu says that the complaints by the petitioners are allegations that the procurements are contrary to its (KPA) procurement plan for 2025/2026 and budget.

This, he says are matters governed by Public Procurement and Asset Disposal Act (PPADA) and Public Finance Management Act (PFM Act) thus it is an ordinary dispute clothed as a constitutional one.

Mr Amuyunzu states that KPA is currently experiencing unprecedented growth of business where volumes of cargo shipped via the ports of Mombasa and Lamu are set to surpass the projected annual cargo throughput.

He says that the current growth in business and unprecedented increase in cargo volumes is attributed to factors like improved port operational efficiency and streamlined cargo clearance services among others.

“It is important to appreciate that Kenyan ports are facing intensified competition from other ports along the East African coastline hence strategic investments in the ports and port facilities aimed at achieving efficiency is necessary in order to secure Kenyan ports as the primary and most preferred gateway,” says Mr Amuyunzu.

He further states that public procurement planning and budgeting are dynamic, informed by various factors that determine prioritisation and allocation of funds by the government.

Mr Amuyunzu states that it is noteworthy for equipment procurements that the lead time in manufacturing processes, payment to contractors is best done only in milestones that in most times cut across more than one or multiple financial years.

Mr Omtatah, Mr Muchiri and Ms Nyakerario argue that by unilaterally switching the method from open to restricted tendering, the respondents are circumventing constitutional command for a fair, equitable, transparent and competitive system under the constitution.

They claim that the impugned procurement processes are tainted by illegality, noncompliance with the law and contrary to public interest.

“The respondents are seeking to commit public funds to items and quantities that were neither included in the approved plan nor covered by the approved budget in direct breach of the conditions in the budget approval letter and PPADA,” part of the petition states.

The petitioners argue that KPA and its MD have contravened the constitution by avoiding open competitive method and opting for restricted tendering where the law and procurement plans mandated an open and competitive process.

They also accuse them of contravening the PPADA by failing to use open tendering as default procurement method where no lawful justification for an alternative method has been demonstrated.

The petitioners claim that KPA contravened the law by seeking to procure 14 Reachstackers when approved budget provides for only five, at a cost that exceeds the approved budget of Sh80 million and by seeking to procure 15 forklift trucks and 48 terminal tractors of varying capacities when the majority were not budgeted for.

“The first and second respondent (KPA and MD) have breached the conditions of the budget approval which expressly required compliance with PPADA and the attendant regulations as a precondition for expenditure,” the petition states in part.

They also accuse PPRA of failing to exercise its statutory duty of monitoring and ensuring compliance with PPADA by KPA despite the impugned tenders being public documents.

The petitioners are seeking a declaration that KPA and its MD’s decision action to initiate and conduct the three tenders through restricted tendering when the approved procurement plan designates open tendering is unconstitutional, unlawful, null and void for violating the constitution and PPADA.

They are also seeking a declaration that the unilateral alteration of the procurement method from open to restricted tender, in departure from the published plan, violates the doctrine of legitimate expectation and the right to fair administrative action.

The petitioners also want an order issued quashing the entire procurement proceedings in the three tenders.

The petitioners also want the National Treasury restrained from making any budgetary disbursements to KPA in respect of the specific impugned procurements until full compliance with the PPADA and constitution is demonstrated.