This case arose out of the construction of the Standard Gauge Railway from Mombasa to Nairobi. The Respondents entered into agreements by which the 4^th Respondent was to undertake a feasibility study, financing was sought from the Government of China and the project undertaken as a government-to-government project.

Two commercial contracts were signed between the Governments for the construction of the SGR line and for the supply and installation of facilities, locomotives and rolling stock. The 4^th Respondent was then awarded the contract to construct the civil works and thereafter to supply the facilities, locomotives and rolling stock.

The Petitioners alleged among other things, that the Respondents failed to comply with the law regarding procurement. It was the Petitioners’ case that the project was subject to competitive bidding but had instead been single sourced. Further projects funded through loans and grants were not exempt from competitive bidding or the provisions of the Public Procurement and Disposal Act. The Petitioners contended that the Respondents had failed to seek Parliament’s approval despite the SGR loan being public debt and therefore a charge on the Consolidated Fund. They also faulted the Respondents for not pursuing value for money in relation to the SGR, for failing to undertake an Environmental Impact Assessment (EIA) and failing to consult with key stakeholders of the project.

The Respondents refuted the Petitioners’ claims, including that they had not complied with the Public Procurement and Disposal Act. They urged the court to expunge from the record the Petitioners’ evidence as they had failed to disclose the source of their information.

On 21st November 2014, the High Court ruled against the Petitioners and the petitioners appealed.

Okoa Mombasa membership was not involved in this case. However, similar to Okoa Mombasa’s objectives, the petitioners sought to reaffirm the rule of law and adherence to the Constitution that requires procurement to be fair, equitable, transparent, competitive and cost-effective.

Okoa Mombasa believes that action should be taken against public officers implicated in the unconstitutional procurement of the SGR.

Judgment issued on 21 November 2014 included the following findings:

On whether the Petitioners’ case was supported by valid evidence, the court found that the evidence produced did not comply with the Constitution or the Evidence Act and was therefore expunged from the record. Further, in obtaining the documents, the Petitioners violated the Respondent’s right to privacy and the privacy of their communication.

The court found that the Public Procurement and Disposal Act did not apply to the procurement of the SGR project and therefore there was no violation of the law in that respect. In addition, the court held that Parliament had been involved in the budgeting of funds to be utilized in the SGR project by virtue of having approved an amendment to the law introducing the Railway Development Levy earmarked for the SGR construction.

It was the court’s finding that an Environmental Impact Assessment had been carried out, the Environmental Impact Assessment (EIA) License having been produced as evidence. The contention that the SGR project was detrimental to the environment lacked merit on this basis.

The court declined to delve into the issue of value for money, as the issue was outside the purview of the courts.

The Court of Appeal issued its judgment issued on 19 June 2020:

The petitioners/appellants filed the present appeal being aggrieved by the High Court decision:

• not to stop the construction of the Standard Gauge Railway on the allegation that its procurement and construction violated the Constitution and other laws,
• to expunge from court records documents tendered by the petitioners and ruled to have been obtained illegally,
• that there were no breaches of the Constitution in the procurement process and that Parliament had carried out its oversight role, giving financial approval for the project,
• that the project was exempt from competitive bidding as it was a government-to-government project.

The Court of Appeal in its judgment held among other things:

• that the conservatory orders sought were unavailable because by the time of hearing the appeal the railway was complete and operational;
• the illegally acquired documents could not be admitted as evidence as this would contradict provisions of the Evidence Act, the Constitution and fair administration of justice. The decision of the High Court to expunge the documents from the court record was upheld.
• that the procurement of the SGR project was not exempted from the provisions of section 6(1) of the Public Procurement and Disposal Act (repealed), and therefore Kenya Railways was bound to comply with the statute. Kenya Railways , as the procuring entity, failed to comply with, and violated provisions of article 227 (1) of the Constitution and sections 6 (1) and 29, of the Public Procurement and Disposal Act, 2005 in the procurement of the SGR project.

The Supreme Court issued its judgment issued on 16 June 2023, covering five discrete issues.

1. Whether the appeal meets the constitutional threshold under Article 163(4)(a) of the Constitution

The Court found that the appeal did meet the constitutional threshold.

2. Whether the appeal before the Court of Appeal was moot

The Court found that the appeal was not moot and should be considered on its merits.

3. Whether the lower courts’ decision to expunge documentary evidence submitted in support of the petitions was correct

The petitioners had submitted various documents that included correspondence between government officials, Exim Bank of China and the Chinese Embassy about the SGR project. They also submitted the Memorandum of Understanding between the Ministry of Transport and CRBC; the feasibility study relating to the project; the commercial contracts between the KRC and CRBC for the construction of the railway and for supply and installation of facilities, locomotives and rolling stock; requests for, and legal advice from the Attorney General and the Solicitor General on the contracts and the SGR project and Cabinet Memorandum.

The lower courts found that these documents were “illegally obtained” (i.e., not obtained under normal Access to Information procedures) and that the public servants who provided the documents did not fit the legal definition of whistle blowers under Article 33 of the United Nations Convention Against Corruption.

The Supreme Court upheld the lower court rulings and refused to admit the documents as evidence.

4. Whether there were environmental considerations by the appellants in the SGR project

The petitioners claimed that the SGR was procured with scant regard to environmental rights, including, in procuring polluting diesel locomotives (instead of electric) and a sloppy Environmental Impact Assessment.

The lower courts found this claim to be without merit, and the Supreme Court affirmed finding.

5. Whether the procurement of the SGR was in accordance with Article 227 of the Constitution and the provisions of the Public Procurement and Disposal Act, 2005

The petitioners alleged that the procurement of the SGR was done in contravention of Article 227 of the Constitution and the provisions of the Public Procurement and Disposal Act, 2005, because it was single-sourced, without a competitive bidding process.

The Court of Appeal agreed with this assessment and found that the Government had failed to comply with the law in procuring the SGR.

The Supreme Court reversed the Court of Appeal’s decision, finding that the procurement was a “government to government transaction,” which therefore exempted it from provisions of the PPDA.