The High Court has cancelled ten tenders belonging to Bomachoge Borabu Constituency Development Fund on ground that the law was not followed
The Nairobi court has even ordered re-tendering noting that the constituency officials did not comply with Article 227(2) of the constitution as well as all other relevant provisions of the law governing such tenders.
“Having regards to the findings and observations that I have made in this judgement,I find that the instant petition is merited and I therefore allow it,” ruled Lady Justice Wilfrida Okwany .
The petitioner, Philip Nyandieka had moved to court on July 2, 2018 seeking orders to cancel National Government CDF Bomachoge Borabu Tender Numbers NGCDF/BOMBOR/KYY/01/17-18 to NGCDF/BOMBOR/KYY/12/17-18.
Okwany observed that the total value of the tenders from the 2017/2018 financial year is indicated to be Sh 124,100,000.
This varies from the total reflected on the Constituencies evidence document which is Sh 134,600,000 according to the judge
Okwany further observed that the circulation shows 30 percent of Sh 124,100,000 is Sh 37,230,000.
In the event that the proper figure was Sh 134,600,000 as reflected in the evidence document then,30 percent of the same would be Sh 40,380,000.
Through lawyer Jason Ondabu, Nyandieka also sought orders directing the Constituency to re-tender in accordance with the constitution of Kenya 2010.
Ondabu had told the court that the said tenders contravene the provisions of the Public Procurement and Asset Disposal Act which requires that a minimum of 30 percent of tenders be given to youths,women and persons with disabilities.
He further argued that according to constituency, only 9 percent of the budgetary allocations for the 22 tenders they tabled caters for the disadvantaged groups such as women, youth and persons with disabilities and contended that due process was not followed in allocation.
Ondabu said that the minorities were granted only 9 percent which is Sh 10million of the tenders instead of 30 percent which amounts to Sh 40 million.
“The tenders contravened some sections of National Government Constituency Fund Act, 2015 on openness, accountability and public participation,” said Ondabu.
Ondabu said response from CDF-Bomachoge Borabu Constituency did not indicate whether any notice was ever given to the public for the meeting of December 1, 2017 which gave rise to the minutes produced in court.
The lawyer said tenders were advertised in contravention with Article 227(a) of the constitution of Kenya 2010 since the projects are not fairly and equitably distributed amongst the four wards of the Constituency.
In response to the claims, Bomachoge Borabu Constituency through Benard Otieno on July 31, 2018 raised an objection on the jurisdiction of the court to entertain the matter.
They argued that claims by Nyandieka contravenes the provisions of section 175 of the Public Procurement and Asset Disposal Act which provides that a person aggrieved by a decision made by the Review Board Should seek judicial review by the High Court within 14 days from the date of decision.
The Constituency at the same denied allegations that due process was not followed and told the court that it complied with the law and that the complainants failed to demonstrate how it failed to adhere to the equitable distribution of resources among the four wards.
Judge Okwany ruled that the instant petition raised allegations or questions touching on violations of constitutional rights, which the court properly has jurisdiction over.