A series of court rulings, procurement disputes and administrative review proceedings have placed the Captain William Ruto-led Kenya Ports Authority (KPA) under renewed legal scrutiny, highlighting the increasingly complex environment surrounding procurement at one of the country’s most strategic state corporations.
While KPA continues to pursue major infrastructure investments aimed at modernising the Port of Mombasa and improving cargo handling capacity, several procurement decisions have recently faced successful legal challenges from bidders and public interest litigants.
The cases have reinforced the judiciary’s growing insistence on strict compliance with Kenya’s procurement laws, particularly the timelines and competitive procedures established under the Public Procurement and Asset Disposal Act (PPADA).
Court of Appeal upholds High Court setback
The latest legal setback arose from a dispute over a Sh362 million tender for the supply, testing, commissioning and maintenance of 15 forklift trucks at the Port of Mombasa.
The Court of Appeal struck out KPA’s appeal after finding it had been filed one day outside the statutory seven-day period required for procurement appeals, leaving the earlier High Court judgment intact.
The appellate judges ruled that procurement appeals are governed by strict statutory timelines that cannot be extended through ordinary appellate procedures, emphasizing that jurisdiction depends on compliance with the deadlines set by Parliament.
The dispute originated after Finnish equipment manufacturer Kalmar Finland Oy challenged the award of the restricted tender to Brookwood Technical Limited and Autobikes Ltd.
Earlier, the High Court held that Brookwood had not been among the firms prequalified to participate in the restricted tender and quashed the procurement process.
Procurement rules under sharper judicial scrutiny
The forklift dispute is only one of several procurement matters involving KPA that have reached courts or the Public Procurement Administrative Review Board (PPARB).
In recent years, disappointed bidders have increasingly turned to judicial review and procurement tribunals to challenge tender awards, arguing that procuring entities must strictly adhere to procurement laws and bidding conditions.
Legal experts note that courts have consistently reaffirmed that procurement processes must comply with constitutional principles of transparency, fairness, competitiveness and accountability.
The Court of Appeal’s latest decision reinforces that even procedural timelines are mandatory rather than discretionary in procurement disputes.
Earlier procurement disputes
Apart from the forklift litigation, KPA has faced several other procurement-related challenges involving strategic infrastructure projects.
Earlier procurement disputes have included litigation over cargo handling infrastructure, port development projects and cargo scanning systems, with some matters being heard before the Public Procurement Administrative Review Board while others proceeded through the High Court and appellate courts.
Some review applications have been dismissed on jurisdictional grounds, while others have resulted in procurement processes being halted, repeated or subjected to further review depending on the circumstances.
Why procurement disputes matter
KPA is responsible for managing Kenya’s largest seaport, making procurement decisions particularly significant because they directly affect cargo handling efficiency, regional trade and billions of shillings in public investment.
The authority has embarked on an ambitious programme to modernise port operations through investments in cargo handling equipment, digital systems and supporting infrastructure.
However, procurement litigation can delay implementation of key projects while increasing costs and creating uncertainty for contractors and suppliers.
Industry observers say the growing number of procurement challenges reflects increasing willingness by bidders to seek judicial intervention whenever they believe procurement laws have not been fully observed.
Governance and accountability
Public procurement remains one of the most closely monitored areas within government because it involves expenditure of public funds.
Kenya’s procurement framework provides unsuccessful bidders with multiple avenues for redress, including administrative review before the PPARB and subsequent appeals through the courts.
Recent judgments suggest courts are increasingly unwilling to overlook procedural shortcomings, even where projects are considered strategically important.
For public institutions such as KPA, the decisions serve as a reminder that procurement processes must not only achieve value for money but must also withstand rigorous legal scrutiny.
As the authority continues implementing multi-billion-shilling investment programmes aimed at expanding and modernising port operations, procurement compliance is expected to remain under close watch from regulators, bidders and the judiciary alike.
