JKIA expansion to cost Ksh 154bn, not Ksh 385bn – Chirchir

The Kenyan government has clarified the projected cost for the Jomo Kenyatta International Airport (JKIA) expansion and modernisation project, stating it will be Ksh 154.2 billion, significantly lower than previously reported figures. Roads and Transport Cabinet Secretary Davis Chirchir also refuted media allegations linking a specific Zimbabwean businessman and his company to the multi-billion-shilling tender, asserting that the firm neither participated in the procurement process nor has any association with the project. This development underscores the critical importance of transparency, accountability, and strict adherence to Kenya's public procurement laws, particularly the Public Procurement and Asset Disposal Act, 2015, in large-scale infrastructure projects to safeguard public funds and maintain public trust.

Recent clarifications from the Kenyan government regarding the Jomo Kenyatta International Airport (JKIA) expansion project have brought renewed focus on the stringent legal framework governing public procurement in the country. Roads and Transport Cabinet Secretary Davis Chirchir publicly addressed concerns over the project's cost and alleged irregular involvement of a foreign businessman, stating the actual cost is projected at Ksh 154.2 billion, not the widely circulated Ksh 385 billion. Furthermore, he categorically denied any participation by the named Zimbabwean businessman or his company in the ongoing open international competitive bidding process.

This official rebuttal comes amidst heightened public scrutiny and legal challenges, including a petition filed by the Consumer Federation of Kenya (COFEK) questioning the transparency and fairness of the procurement process. Such high-value infrastructure projects are often flashpoints for allegations of corruption and procedural irregularities, making adherence to the Public Procurement and Asset Disposal Act, 2015 (PPADA, 2015) and its attendant regulations paramount. This article delves into the legal implications of the CS's statement, examining the robust procurement framework in Kenya and the critical role of legal professionals in ensuring its integrity.

Public procurement in Kenya is governed primarily by the Public Procurement and Asset Disposal Act, 2015 (No. 33 of 2015) and the Public Procurement and Asset Disposal Regulations, 2020. This legislative framework gives effect to Article 227 of the Constitution of Kenya, 2010, which mandates that all state organs and public entities contract for goods and services in accordance with a system that is fair, equitable, transparent, competitive, and cost-effective.

The PPADA, 2015 establishes the Public Procurement Regulatory Authority (PPRA), a state corporation tasked with monitoring, assessing, and reviewing the public procurement and asset disposal system to ensure compliance with national values and constitutional provisions. The Act also outlines various procurement methods, with open tendering being the most preferred, emphasizing public advertisement and maximum competition. Key principles underpinning the system include transparency, fairness, efficiency, value for money, accountability, and the promotion of integrity. The Ethics and Anti-Corruption Commission (EACC) also plays a crucial role in investigating and preventing corruption in public procurement, a sector historically prone to malpractices.

The Cabinet Secretary's firm denial of the alleged cost inflation and the involvement of an unlisted firm highlights the legal requirements for transparency and eligibility in public tenders. Under the PPADA, 2015, all bidders must meet specific qualification criteria, and the procurement process, especially for projects of this magnitude, must be conducted through open and competitive methods. The CS explicitly stated that the JKIA expansion tender was conducted through an open international competitive bidding process, with all bids currently undergoing evaluation in line with procurement laws.

Any deviation from the established procurement procedures, such as the alleged direct awarding of contracts or involvement of non-bidding entities, would constitute a serious breach of the PPADA, 2015 and constitutional principles. The Act provides for administrative review by the Public Procurement Administrative Review Board (PPARB) for aggrieved parties, and ultimately, judicial review by the High Court. Recent Supreme Court rulings, such as Petition No. E. 1 of 2024, have reinforced that all procurement methods, including those termed 'specially permitted,' must adhere to constitutional standards of fairness, equity, transparency, competitiveness, and cost-effectiveness, rejecting any notion of using such procedures as loopholes.

The allegations, even if refuted, underscore the need for rigorous due diligence by procuring entities and strict adherence to the evaluation criteria outlined in tender documents. The EACC's mandate to investigate corruption-related offenses in public procurement means that any substantiated claims of impropriety could lead to severe legal consequences, including debarment of firms and prosecution of individuals. The ongoing court petition by COFEK further demonstrates the public's right to demand accountability and transparency in the use of public resources, aligning with the constitutional principles of public finance.

The government's clarification on the JKIA expansion project's cost and the disassociation of an alleged irregular party serves as a timely reminder for legal practitioners of the robust, albeit often tested, public procurement framework in Kenya. Attorneys advising public entities must ensure strict compliance with the Public Procurement and Asset Disposal Act, 2015, and its Regulations, particularly concerning tender advertising, evaluation, award, and contract management. For private sector clients, understanding and adhering to the stringent eligibility and bidding requirements is crucial to avoid disqualification and potential legal challenges.

The ongoing scrutiny of the JKIA project, including the court action by civil society, highlights the increasing demand for transparency and accountability in public spending. Legal professionals play a vital role in upholding these principles, guiding clients through the complexities of procurement law, and advocating for fair and equitable processes. Practitioners should remain vigilant for further developments in this and similar high-profile projects, as they often set precedents for the interpretation and enforcement of Kenya's public procurement laws. The emphasis on integrity and value for money will continue to shape the landscape of public infrastructure development.