Show Us the Contracts Tracker
Updates on our efforts to obtain the Standard Gauge Railway contracts - in court and by other means | Constitutional Petition No. E 032 of 2021 | Civil Appeal No. E085 of 2022 Case filed: 21 June 2021Current status: Government has appealed judgment in favor of Okoa MombasaLast updated: 31 January 2024
Background
This page provides updates on the court case filed by Okoa Momabsa and the Institute for Social Accountability (TISA) to obtain contracts, agreements and studies related to the construction and operation of the Standard Gauge Railway (SGR).
Our original petition was filed on 21 June 2021, and can be read here.
The High Court issued a judgment ordering the government to release the SGR contracts on 13 May 2022. It can be read here. On 16 May 2022 the government filed a notice of appeal, but as of December 2023 we had not received any indication that the appeal itself has been filed.
The urgency of making the SGR contract documents public was recently underscored by the analysis of a former government auditor. He alleged massive irregularities and fraud in the SGR financing – including a possible overpayment of Ksh 777 billion. Read more here.
Documents we’ve obtained
The government has so far failed to comply with a 2022 court judgement ordering it to provide us with all SGR contracts, agreements and other documents. However, we have obtained some key documents through other means. They are available by clicking the images below.
EPC Turnkey Commercial Contract between Kenya Railways Corporation and China Road and Bridge Corporation (Construction of the civil works of Mombasa-Nairobi SGR project).
Signed July 2012. Searchable PDF
Independently obtained
Contract between Kenya Railways Corporation and China Road and Bridge Corporation (for supply and installation of the facilities, locomotives and rolling stock for the Mombasa-Nairobi SGR project)
Signed Oct. 2012. Searchable PDF
Independently obtained
Memorandum of Understanding on the Mombasa-Nairobi SGR project between the Government of Kenya (represented by the Treasury) and the Export-Import Bank of China.
Signed Aug. 2013. Searchable PDF.
Independently obtained
Preferential Buyer Credit Loan Agreement on the Mombasa-Nairobi SGR project between the Government of Kenya (represented by the Treasury) and the Export-Import Bank of China.
Signed May 2014. Searchable PDF.
Released by CS Murkomen in 2022
Buyer Credit Loan Agreement for the Mombasa-Nairobi SGR project between the Export-Import Bank of China and the Government of Kenya (represented by the Treasury).
Released by CS Murkomen in 2022
Buyer Credit Loan Agreement for the Nairobi-Naivasha SGR project between the Export-Import Bank of China and the Government of Kenya (represented by the Treasury).
Released by CS Murkomen in 2022
Assessment report on the socio-economic impact of the SGR on Mombasa. Commissioned by the County Government of Mombasa to the School of Business, University of Nairobi.
Independently obtained
Current case status
Updated 31 January 2024
Given the government’s ongoing failure to comply with a court judgment requiring them to hand over the SGR contracts, Okoa Mombasa has asked the court to hold two government officials in contempt of court.
Our filing on 25 January 2024 asks the court to impose a six-month jail term, or other penalty as the court sees fit, on Chris Kiptoo (Principal Secretary, National Treasury and Planning) and Mohamed Daghar (Principal Secretary, State Department for Transport). It also asks the court to order the officials to appear before the court and show cause why such penalties should not be imposed.
Previous status updates
6 December 2023: Appeal status remains unclear
The government’s appeal has come up for mention twice in court (27th September 2023 and 28th November 2023) but the status of the case remains unclear. Neither the plaintiffs nor their counsel have been served with the appeal to our knowledge.
20 March 2023: Okoa Mombasa serves penal notice on defendants
Nearly a year has passed since the court’s judgment ordering release of the SGR contracts, but the government has both failed to comply with the order and has failed to prosecute its appeal. (A notice of appeal was filed in May 2022, but we have yet to see a copy of the actual appeal)
In light of this, our attorney served a penal notice on the defendants on 14 March 2023, warning that we will move to hold them in contempt of court if they do not comply with the court’s orders. If the court finds the defendants in contempt, they could be liable for up to six months in prison or be fined as the court sees fit.
29 June 2022: Government applies to stay execution of order
On 15th June 2022, the government filed an application to stay execution of the High Court’s judgment pending appeal.
16 May 2022: Government files notice of appeal
On 16th May 2022, the government filed a notice of appeal, signaling it intends to appeal the High Court’s judgment to the Court of Pppeal.
13 May 2022: High Court judgment in favor of Okoa Mombasa
On 13 May 2022, the court ruled in favor of Okoa Mombasa and ordered the disclosure of the SGR contracts.
2 March 2022: Submissions highlighted in court
On 25 February 2022, the parties highlighted their submissions in court. The court announced that a determination would be issued in May.
13 Jan 2022: Our filing re Government's 2nd response
On 10 Dec 2021, we filed a response rebutting the arguments in the government’s 2nd response (see Previous Status Updates below, entry from 16 Dec 2021).
16 Dec 2021: Government files second response
On 29 Nov 2021, the government filed a second response to our petition, arguing:
1. That the suit is res judicata.
2. That the claims against two respondents should be dismissed because they were sued in their personal capacities.
3. That the documents we seek are protected under the doctrine of states privilege and secrets.
4. The we have not exhausted dispute resolution avenues available prior to filing the suit.
14 Oct 2021: Okoa Mombasa files responding affidavit
We have filed an affidavit in response to the government’s motion to dismiss our petition. Read it here.
Summary of facts & issues
The KES 450 billion (USD 4.2 billion) SGR is the most expensive infrastructure project in Kenya’s history, and was financed mostly via loans through the Export-Import Bank of China. President Uhuru Kenyatta promised to release the contracts in 2018, but has yet to follow through.
Despite the enormous cost to Kenyan taxpayers, agreements and studies related to the project and its financing have never been made public. (This became even more alarming in mid-2023 when a former government auditor alleged massive fraud in the SGR financing, including a possible overpayment of Ksh 777 billion)
Our petition argues that Kenya’s Constitution prohibits confidential contracts for infrastructure projects like the SGR, which demand public participation and accountability. Kenyans have a right to know how their taxes are being spent, to participate in those decisions and to hold their government accountable. We can’t participate if we don’t have the basic information with which to form our opinions.
Our video explains more:
Okoa Mombasa’s quest to obtain the SGR conracts stretches back to 16 December 2019. That’s when we filed an Access to Information (ATI) request with the Government of Kenya, seeking the release of agreements, contracts and other documents relating both to the Standard Gauge Railway (SGR) and Container Terminal 2 (CT2) at the Port of Mombasa.
Our request from December 2019 was simple: We wanted the government to #ShowUsTheContracts, as is our right under Kenya’s constitution. Our ATI request demanded these documents from various government entities.
Unfortunately, we never received a substantive response. That’s why we filed a court petition.
Our original ATI requests and government responses can be found in the table at the bottom of this page.
High Court judgment (13 May 2022)
The High Court in Mombasa issued its judgment on 13 May 2022 finding in favor of our petition. Specifically the court held:
(1) That the failure by the Government to provide the SGR contracts and other documents and to publicise this information is a violation of the right to access to information under the Access to Information Act.
(2) That the Government’s failure to provide the SGR contracts and other documents and to publicise the information is a violation of Article 10 of the Constitution.
(3) That the Government must release the SGR contracts and other information sought by Okoa Mombasa forthwith at their own cost.
Background
Fraud analysis
Key case documents
Table of responses: Access to Information Request for SGR & CT2 contracts
Note: a number of the responses below are from the Office of the Ombudsman, which is the government agency tasked with ensuring enforcement of the Access to Information Act. These letters were sent to the government agencies at issue, demanding release of the documents. These were mostly ignored.
| Date | From | Link | Notes |
|---|---|---|---|
| 17/12/2019 | Okoa Mombasa | Full request | Okoa Mombasa's original ATI request. |
| 18/12/2019 | Kenya Railways | Full letter | Refused to provide documents. “Not able to provide the information on account of Section 6(1) and (2) Access to Information Act and due to contractual obligations of the parties.” |
| 23/12/2019 | Okoa Mombasa | Full letter | Our response to Kenya Railways' 18 Dec 2019 letter, asking for clarifications re non-disclosure. |
| 17/01/2020 | Office of the Ombudsman | Full letter | Letter from the Ombudsman to the Ministry of Transport, demanding compliance with Okoa Mombasa's ATI request. |
| 17/01/2020 | Office of the Ombudsman | Full letter | Letter from the Ombudsman to the Kenya Ports Authority, demanding compliance with Okoa Mombasa's ATI request. |
| 17/01/2020 | Office of the Ombudsman | Full letter | Letter from the Ombudsman to the Kenya National Bureau of Statistics, demanding compliance with Okoa Mombasa's ATI request. |
| 17/01/2020 | Office of the Ombudsman | Full letter | Letter from the Ombudsman to the Registrar General, demanding compliance with Okoa Mombasa's ATI request. |
| 06/02/2020 | Kenya National Bureau of Statistics | Full letter SGR statistics Port statistics | Response to the Ombudsman's 17 Jan 2020 letter, providing statistics for the SGR & Port of Mombasa |
| 06/03/2020 | Registrar General | Full letter | Response to the Ombudsman's 17 Jan 2020 letter, requesting payment for the documents requested (650 Ksh search fee & 500 Ksh per page for certified copies). |
| 12/03/2020 | Office of the Ombudsman | Full letter | Letter from the Ombudsman in response to the Registrar General's 6 March 2020 letter. |
| 16/03/2020 | Office of the Ombudsman | Full letter | Letter from the Ombudsman, noting that Kenya Railways has not complied with Okoa Mombasa's ATI request, and demanding compliance. |
| 17/04/2020 | Kenya Railways | Full letter | Letter from Kenya Railways to the Ombudsman, explaining why they will not disclose the records that Okoa Mombasa seeks. |
| 06/05/2020 | Office of the Ombudsman | Full letter | Letter from the Ombudsman, forwarding Kenya Railways' letter of 17 April 2020 to Okoa Mombasa |
| 28/05/2020 | Okoa Mombasa | Full request | Okoa Mombasa resends its original ATI request to the Solicitor General, as directed in a letter from Kenya Railways. |
| 28/08/2020 | Office of the Attorney General | Full letter | Claims their office does not have the documents requested (despite Kenya Railways statement to the contrary on 17/4/2020). Further notes that even if they did have the documents, they could not release due to "nondisclosure agreements" that might lead to "serious legal and financial repercussions." |
| 13/05/2021 | Okoa Mombasa | Full request | Additional request for the same documents, addressed to the National Treasury. |