The Standard Gauge Railway. The Court of Appeal on Friday ruled the contract for the project is illegal.

The Court of Appeal on Friday declared that the entire Standard Gauge Railway (SGR) contract illegal dealing a blow to the Jubilee Government which has for its time in office defended the project as a “game-changer much to the chagrin of critics who have questioned the viability of the project which constitutes a section christened “The Railroad to Nowhere”.

The three-judge bench comprising of Justices Martha Koome (presiding), Gatembu Kairu and Jamila Mohammed ruled that Kenya Railways failed to comply with procurement laws ruling in favour of the petitioner, Activist Okiya Omtatah who protested the single sourcing of the China Road and Bridges Corporation (CRBC) as the contractor for the country’s biggest infrastructure project.

Omtatah also held the project was overpriced and not value for money.

“We set aside that part of the judgment of the High Court holding that the procurement of the SGR was exempt from the provisions of the Public Procurement and Disposal Act, 2005 by reason of Section 6(1) thereof,” the judges ruled.

“We substitute therefore an order declaring that Kenya Railways Corporation, 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,  59 2005 in the procurement of the SGR project,” further read the ruling.

Omtatah in his submissions to the court held that the project’s design was manipulated to inflate costs while construction and supervision charges were also overpriced at Ksh11 billion. He had moved to the Court of Appeal after the High Court threw out his case.

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Earlier this year, when the government was seeking to have the case thrown out, CRBC through lawyer Kiragu Kimani, argued that the case was inconsequential as the SGR was already operational.

“SGR was operational from 2017 and has carried two million passengers and an average of 30 freight and four passenger trains. What you are being told is to reverse the clock,” the lawyer argued.

Railroad to Nowhere

President Uhuru Kenyatta has always appeared riled by criticism of the project stating that the Ksh327 billion invested in SGR Phase 1 and the Ksh150 billion pumped into phase II are worthwhile investments that will translate into economic growth over time.

“Let me tell you, Maai Mahiu, Suswa is not nowhere, this is Kenya and let me tell you, whether you like it or not when I complete serving my two terms, I know that if God gives me longevity in life, after twenty years when I come back here I will confirm that the decision to invest heavily in the project will be vindicated as Maai Mahiu and Suswa will even be bigger economic hubs than Nairobi,” said President Kenyatta during the launch of the Maai Mahiu station in October 2019.

The “Railroad to Nowhere” jibe comes from the fact that SGR Phase II terminates at Duka Moja (Swahili for one shop) a remote town on the Maai Mahiu- Narok Road some 20 kilometers away from Suswa.

During an interview with journalists in December 2018, President Kenyatta promised to avail a copy of the SGR contract to NTV news anchor Mark Masai before reneging on the promise in April 2019 on the guise that counsel from Attorney General Kihara Kariuki against handing the contract to the journalist had prevailed.

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Samuel Gitonga is a senior reporter at BUSINESS TODAY. Email: [email protected]

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