The High Court halted the government’s intentions of leasing five public sugar factories to private companies.
Justice Chacha Mwita suspended the tendering process on February 14, following a suit filed by Martin Nyongesa Barasa challenging the said move.
“An interim conservatory order is hereby granted halting the tendering process under the International Tender Notice No. MOALD/SDA/IT/001/2023-2024,” read the order by the Judge.
The order will temporarily run until April 19, 2024 when the matter will be heard.
In the meantime, the respondents have been directed to submit their responses to the petition within the next seven days, followed by the petitioner’s subsequent seven day window to file and serve supplementally affidavit, along with written submissions not exceeding 10 pages.
Subsequently, the respondents will have their turn to submit written responses to the petition, also limited to 10 pages, within seven days after receiving the petitioner’s submissions.
Nyongesa had on February 9, moved to court in a certificate of urgency seeking orders halting the further and continued tendering process pending hearing and determination of the suit after the Ministry of Agriculture and Crops Development put up Nzoia Sugar Company, South Nyanza Sugar Company, Chemelil Sugar Company, Muhoroni Sugar Company (in receivership) and Miwani Sugar Company (in receivership) for the lease.
“Vide a letter dated 8th January, 2024 only 8 days before the invitation was published, the Respondent’s ministry wrote a letter to the managing directors of Nzoia Sugar Company Ltd, Chemilil Sugar Company Ltd, and the South Nyanza Sugar Company Ltd compelling them to pass resolutions to hand over powers to the 3rd Respondent’s Ministry to enable the ministry to carry out procurement of the leases for the respective companies.”
“And that the Respondents went on ahead to offer to assign the managing directors standard extracts of the board resolutions for signing on or before 11 January, 2024 only 5 days before the notice to tender was published,” said the documents.
It is Nyongesa’s case that the decision to lease public sector-owned/controlled sugar companies should have involved public consultation, aligning with the constitutional principle of involving people in decision making, particularly in public procurement.
Agriculture Cabinet Secretary Mithika Linturi had on January 15, posted a tender invitation seeking bids for leasing public sector-owned sugar companies.
The tender was open until February 15.
Nyongesa told Mwita that the specified time limits are unreasonably short, compromising the integrity of the tendering process, transparency, and fairness.
“The actions by the respondents are whimsical, irrational, illegal and contravene the Petitioner’s and the citizens’ of Kenya right to legitimate expectation, public participation and fair administrative action.”
In the petition the cabinet secretary, ministry of treasury and economic planning, the principal secretary, ministry of treasury and economic planning, the principal secretary, state department for agriculture and the attorney general have been sued.