Mount Kenya legal practitioners and a journalist have sued the National Treasury and Road and Transport Cabinet Secretaries John Mbadi and Davis Chirchir respectively over the proposed deal for Adani Group to lease Jomo Kenyatta International Airport (JKIA) for 30 years.
In the petition filed under a certificate of urgency, the Mount Kenya Jurist and Tony Gachoka argue that the whole process is tainted with “screaming and stinking” procedural and constitutional impropriety.
The duo which have also sued the Adani Group, Managing Director, Kenya Ports Authority and Attorney General Dorcas Agik Oduor say the alleged 30-year lease of JKIA did not undergo the required public participation process.
The petitioners claim Mbadi ignored the Public Procurement and Assets Disposal Act, of 2015, compromising transparency and accountability as required by the Constitution.
They argue the respondents bypassed legal requirements to avoid public scrutiny.
“It is equally the presumption of the law that when Parliament enacted the Public Private Partnerships Act, 2022, it was well aware of the existence of the provisions of the Public Procurement and Assets Disposal Act, 2015, which require that whenever a contract of service or goods are being carried, the same must be subjected to the public participation contemplated under Articles 1 and 10 of our constitution,” they say.
The two argue that the government’s transfer of a public project to a private entity violates Section 3 of the Public-Private Partnership Act, which does not permit the alienation of existing projects to private individuals.
They claim that the Adani group has numerous corruption scandals linked to it, which a simple internet search of “Adani scandals” readily reveals therefore failing the integrity test required to confirm that a private party is “not corrupt, has not engaged in acts of corruption and has not been sued or convicted on account of acts of corruption”.
“The 1st respondent has a basket that is not just full but leaking with scandal after scandals that sting of corruption all the way to the high heavens. Just by typing the name Adani scandals on the internet, all the ills associated to it pop up in numbers. The said Respondent does not meet the integrity test,” read the court documents
The petitioners have accused Mbadi of exceeding his authority under the Constitution regarding the disposal of public assets.
According to them, the CS’s actions are not in line with Article 227 of the Constitution, which dictates the lawful disposal of public assets.
Instead, he is purported to be operating under Section 4 of the Public Private Partnership Act, 2022, which they say is inappropriate for such disposals, as it primarily governs the procedures for private investors contracting with the government.
“By dint of Article 227(2) of the Constitution, Parliament was only decreed to enact one Act of Parliament to operationalize the procedures of procuring goods and services of public entities and therefore Public Private Partnership Act, 2022 is not an Act of parliament anchored on Article 227 of the Constitution, and thus in the circumstances, the import of Section 4 of the Public Private Partnership Act 2022 is purporting to suspend the Act, which is specifically enacted to operationalize the disposal of public assets contrary to the Constitution.”
“Therefore, the provisions of Section 4 of the Public Private Partnership Act, 2022, are thus in conflict with the provisions of Article 227 of the Constitution and therefore unconstitutional,” read the court documents.
The petitioners want the court to suspend the signing of any agreement that may lead to the alienation of JKIA.
They are also seeking conservatory orders to prevent the implementation of the concession agreement between the Adani Group and Treasury CS or any other tender notice issued in furtherance of the concession, leasing, or alienation of the airport.
“Pending the hearing and determination of the Application and or the Petition, this Honourable Court be pleased to issue a conservatory order stopping, suspending and staying, the signing of any agreement of whatsoever nature that may amount or facilitate the alienation of the Jomo Kenyatta International Airport, and/the implementation of the concession agreement between the 1st and the 2nd Respondents and or any other tender notice issued in the furtherance of either the concession, leasing and/or alienation of Jomo Kenyatta International Airport, a public asset herein,” read the court papers.
The saga led to the grounding of operations at JKIA and major airports after workers there staged a protest on Wednesday. They however signed a return to work formula after the government insisted there was no deal so far signed.
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