Court adjourns case challenging Adani deal

The High Court Monday adjourned a case challenging a deal between Kenya and Indian firm Adani Group to November 27

Another one filed by Law Society of Kenya has been pushed to December 17.

This is after the parties in the two cases were told that the judge hearing the matter is away.

However, the orders that were issued stopping the execution remain in force until the matter is heard and determined.

Addressing the media after the adjournment of the case Wiper Party Leader Kalonzo Musyoka and Eugene Wamalwa-DAP Party Leader who are also lawyers in the case representing Aviation workers in the matter urged the government to drop the deal saying that Kenya is capable of expanding the Jomo Kenyatta International Airport (JKIA).

“This is a state capture, Adani is crowded with secrecy. we are determined to fight for this generation and for the benefit of our future generation so that there will be transparency,” said Musyoka

“If Adani will control JKIA then they will paralyse our country,” added Wamalwa.

Meanwhile a preliminary objection has been filed in the case challenging the jurisdiction of the court to hear and determine the matter.

The Ministry of transport Cabinet Secretary Davis Chirchir, Attorney General Dorcas Oduor, the National Treasury and planning,, Ministry of National infrastructure, Public-Private Partnership directorate and Public-Private Partnership committee argue that disputes involving decisions by the PPP contracting authority, the PPP Committee, and the PPP Directorate should first be handled by the Petition Committee, a body granted original jurisdiction over such cases.

They say the High Court is limited to an appellate role, meaning it may only review cases on appeal from the Petition Committee but lacks original jurisdiction to initiate hearings on these matters.

“The High Court’s role is appellate, not original, in cases like this,” argue the respondents.

“By statute, disputes must be taken to the Petition Committee first, with appeals coming to the High Court only if necessary.”
The respondents allege that the petitioners bypassed a key procedural requirement under Section 14 of the Access to Information Act which mandates that individuals seeking information from public entities pursue initial review through the Commission on Administrative Justice, an avenue they say hasn’t been exhausted

Additionally they allege that there was a procedural gap under section 9 of the Fair Administrative Action Act.

The Act mandates that petitioners apply for an exemption from exhausting local remedies if they intend to bypass this step.

Since the petitioners did not pursue an exemption from the Judicial Review Division of the High Court, the respondents argue that the petition fails to meet the procedural criteria necessary to proceed in court.

“The Petitioners are obligated under Section 9 of the Fair Administrative Action Act to apply for exemption from the mandate of exhaustion of local remedies which is a preserve of the Judicial Review Division of the High Court and has not been undertaken by the Petitioners,” read court documents.

In the case the Petitioner wants the deal declared unconstitutional on grounds that the process was rushed and the usual processes bypassed.