The High Court has dismissed a suit that sought to block Kenya Power from buying more than 700,000 meters worth Sh5.4 billion, unlocking connections and aiding the utility to tame illegal supplies.
Justice Jairus Ngaah ruled that Kenya Power cannot be faulted for restricting the tender to local manufacturers and assemblers in its quest to promote domestic entrepreneurs.
Niavana Agencies Limited, a local company, challenged the tender arguing that the restriction of the bidders to local meter manufacturers or assemblers excluded ‘citizen contractors’, a procurement lingo for individuals or firms fully owned or controlled by Kenyans
The freeze of the tender, which was first advertised a year ago, hit more than a half a million customers who were seeking new connection and replacements for faulty or stolen ones.
This upped illegal connections to the national grid, depriving the company of revenue as it seeks to lift itself out of a deep earnings slump.
The judge said it is untrue that citizen contractors were blocked from the tender, adding that they qualified as local manufacturers or assemblers if registered in Kenya, were undertaking business in the country and that its goods and services are manufactured in Kenya.
“I am not satisfied that a case has been made out, on the face of these documents, to persuade me to exercise my discretion in favour of the applicant and grant any of the orders of judicial review sought. Its application is hereby dismissed with costs,” said the judge.
This means that Niavana Agencies Limited and its managing director Benedict Ndung’u will pay millions of shillings for legal fees that Kenya Power and the Public Procurement Administrative Review Board used in the suit.
Kenya Power termed Mr Ndung’u a serial complainant on its tenders, terming him a vexatious litigant, or one driven by the need to cause harassment, frustration and financial costs to owners of tenders.
The Public Procurement Administrative Review Board dismissed the case early this year, forcing Mr Ndung’u to head to the High Court.
He sued Kenya Power over two other tenders.
Niavana Agencies, through its MD, said Kenya Power floated the tender in November 2023, for the supply of single phase and three-phase smart meters.
He said the tender document was subsequently amended twice, making the procurement unlawful and irregular.
Mr Ndung’u said Kenya Power curtailed competition and fairness by prescribing non-existent preference and reservation schemes.
The company defended the process and the extension of the tender deadline on two occasions to allow for amendments.
Kenya Power said the tender was open to all local manufacturers or assemblers based in Kenya and the restriction sought to promote local industries.
The court was informed that 10 bidders expressed their interest to participate in the tender but only eight firms submitted bids by the closing date on December 1, 2023.
The power firm said Niavana Agencies was not one of the bidders.
The utility says it made clarifications and corrected clerical errors in respect of the principal tender document through two addenda.
Source: Business Daily