Court okays KPA's restricted tendering of heavy machinery amidst protests

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The High Court in Mombasa has allowed Kenya Ports Authority (KPA) to procure multi-million-dollar heavy port-operation machinery through restricted tendering, amid protests by Human rights groups calling for open tendering.

Justice Jairus Ngaah dismissed a petition filed by Senator Okiyo Omtatah, Benard Muchere and Naomi Misati challenging the restricted tendering process of 14 new reachstackers, 15 new forklifts and 48 terminal tractors at a cost of sh.1.444,358,056

Justice Ngaah said that Omtatah ought to have filed the petition at the tendering stage instead of waiting until the tenders had been awarded.

“To be precise, if the petitioners had taken the initiative and lodged their complaint as soon as the tender was advertised, it is possible that the procurement process would have been suspended or nipped in the bud if they had a valid case against the floating of the tender or tenders,” said Justice Ngaah.

The judge said it was in bad faith for Omtatah to wait until the tender had been awarded before lodging a constitutional petition, when they could have availed the dispute

resolution mechanism under the Act and lodged their complaint at the earliest opportunity.

Justice Ngaah said that it was never the intention of the legislature that a tender could simultaneously be challenged by way of judicial review

review and through a constitutional petition.

He said if that were possible, nothing would stop a disgruntled party from filing a judicial review application under section 175(1) of the Act and, perhaps, to get a second bite at the cherry, file a constitutional petition against the same tender or tender process through a proxy.

“I hold that the Omtatah’ petition is misconceived and an abuse of the process of this Honourable Court. It is hereby struck out,” said Justice Ngaah.

In the petition, Omtatah sued KPA and its Managing Director, William Rutto, Public Procurement Regulatory Authority, National Treasury and Attorney General, with Katiba Institute cited as Interested Party.

Omtatah said that KPA and Rutto’s decision to alter the procurement method from open tender to restricted tender, in departure from the published procurement plan, contravenes Article 227(1) of the Constitution, which mandates fair, equitable, transparent, competitive and cost-effective procurement, and defeats the legitimate expectation of the public and potential bidders.

The Senator accused KPA of procuring the shreachstackers, forklift trucks and terminal tractors through closed tendering at an exaggerated cost of over sh. 1,114,358,056.

He said the procurement of items and quantities not contained in the approved procurement plan and beyond the approved budget contravenes Section 53 of the PPADA as read with Section 45(3) of the PPADA and Rules 41 and 42 of the Regulations

Omtatah sought a conservatory order restraining the Treasury from making any budgetary disbursements to KPA until they have fully complied with the Public Procurement and Asset Disposal Act, 2015 and the Constitution.

He also asked the court to restrain KPA and Rutto from making any payment in respect of the specific impugned procurements until they demonstrate full compliance with the PPADA and the Constitution.

The senator said that contrary to the Procurement Plan, KPA floated the tender for the supply, testing and commissioning of 14 new Reachstackers through restricted tendering, when the approved

procurement plan designates open tendering for only 5 reachstackers at an estimated cost of sh. 80,000,000.

Omtatah said that out of 15 new Forklift Trucks procured through restricted tendering, only one conforms to the approved procurement plan in both

description and procurement method.

“The remaining 14 units constitute items not in the plan or items designated for open tender that have been unlawfully switched to restricted tender,” said Omtatah.

Further, he said that out of the 48 Terminal Tractors procured through restricted tendering, only 30 were set to be approved under open tendering at an estimated cost of sh.250 million.

However, Omtatah said that the 48 Terminal Tractors exceed by 60 per cent the planned quantity, and the cost quadruples the approved budget to sh.1,114,358,056.

He said the reachstackers, forklift trucks and terminal tractors of all capacities are standard port-handling and industrial equipment

manufactured and supplied by multiple global manufacturers with extensive authorised dealer networks in Kenya and East Africa.

“There is no basis for KPA to claim that the statutory preconditions for

restricted tendering under Section 102 of the Act are satisfied,” said Omtatah.

In their defence, KPA said that the Authority's user department, through an Internal Memo dated December 3 2025, indicated that the fleet of Reachstakers operating within the Kenyan Ports includes Sany, Hyster, ZPMC and Kalmar, which are from internationally reputable equipment manufacturers with notable presence in several ports and container handling facilities.

KPA’s Principal Supply Chain Officer, Daniel Amuyunzu, said procurement disputes are governed under the Public Procurement and Asset Disposal Act 2015, which requires that they be resolved under the dispute resolution mechanisms provided under the Act, particularly sections 35, 36, 37 and 38 of the Act.

He said KPA published the tender on its Website and the Government's Public Procurement Information Portal (PPIP), inviting any interested equipment manufacturer to participate.

He said KPA is experiencing unprecedented growth in business, where volumes of cargo shipped via the Ports of Mombasa and Lamu are on track to surpass the projected annual cargo throughput.