The High Court in Mombasa has cleared the way for Kenya Ports Authority (KPA) to spend Sh1.4 billion on heavy machinery through restricted tendering, striking out a petition by Senator Okiyo Omtatah.

Justice Jairus Ngaah ruled that Omtatah filed his case too late — after the tenders had already been awarded. The judge said the senator should've gone to court when the tender was first advertised, not after the fact.

“To be precise, if the petitioners had taken the initiative and lodged their complaint as soon as the tender was advertised, it's possible that the procurement process would've been suspended or nipped in the bud if they had a valid case,” Justice Ngaah said.

The judge also called the petition an abuse of court process, saying the law doesn't allow someone to challenge a tender through both judicial review and a constitutional petition at the same time.

The case involves KPA's plan to buy 14 reachstackers, 15 forklifts, and 48 terminal tractors at a cost of Sh1,444,358,056. Omtatah had argued that KPA and Managing Director William Rutto changed the procurement method from open tender to restricted tender without following the law.

According to Omtatah, the approved procurement plan only allowed open tendering for 5 reachstackers at an estimated Sh80 million. But KPA went ahead and floated a restricted tender for 14 reachstackers. Similarly, out of 15 forklifts, only one matched the approved plan. And out of 48 terminal tractors, only 30 were supposed to be procured — through open tender, at an estimated Sh250 million.

The senator argued that this violated Article 227(1) of the Constitution, which requires procurement to be fair, equitable, transparent, competitive, and cost-effective. He also said restricted tendering inflated the cost by over Sh1.1 billion.

Omtatah had asked the court to stop the Treasury from releasing funds to KPA until the authority complied with the Public Procurement and Asset Disposal Act. He also wanted KPA and Rutto blocked from making any payments for the disputed tenders.

But Justice Ngaah wasn't convinced. He said Omtatah should've raised his concerns when the tender was first advertised, not after KPA had already awarded the contracts.

“I hold that the petition is misconceived and an abuse of the process of this Honourable Court. It is hereby struck out,” the judge ruled.

The petition had named KPA, Managing Director William Rutto, the Public Procurement Regulatory Authority, the National Treasury, and the Attorney General as respondents. Katiba Institute was listed as an interested party.

Human rights groups had also protested the restricted tendering, arguing it shut out competition and opened the door for inflated prices. But with the court ruling, KPA can now go ahead and procure the machinery.

The decision means KPA will replace aging equipment at the Port of Mombasa without going through an open bidding process. Critics say this sets a dangerous precedent for public procurement in Kenya.

Omtatah is known for filing public interest cases on procurement and governance. He has previously challenged irregular tenders in State agencies and won. But this time, the court said his timing was off.

For now, KPA gets its machinery — and the debate over restricted tendering versus open competition continues.