Law Society of Kenya president Nelson Havi has faulted the court ruling which declared the SGR contract unconstitutional.
He said the government may be planning to use the ruling should the contractor - China Road and Bridge Company - sues for breach of contract.
In a tweet on Friday night, Havi said, "Something doesn’t add up in Court of Appeal’s decision declaring completed SGR project unconstitutional and unlawful. It may be a preparatory process for GoK to plead illegality at an international arbitration should China Road and Bridge Corporation sue for breach of contract."
The Court of Appeal on Friday said Kenya Railways Corporation, as the procuring entity of the Standard Gauge Railway, failed to meet the constitutional threshold of fairness and transparency.
However, Justices Martha Koome, judge Gatembu Kairu and Jamilla Mohammed on Friday said they were not persuaded that the procurement of the SGR was unconstitutional only because it was not taken through a competitive bidding process.
Kenya has been under pressure to pay its debts while at the same time handle the financial implications of the coronavirus epidemic which has affected the globe.
Last month, the National Assembly’s Budget and Appropriations Committee said that Kenya Railways had not paid Sh38 billion to Africa Star Railway Operation Company Ltd, the Chinese company contracted to operate the trains.
Africa Star Railway Operation Company is majority owned by China Road and Bridge Corporation and was contracted in May 2017 to run the passenger and cargo trains on the SGR.
SGR CONSTRUCTION
In November 21, 2014, then High Court Judge Isaac Lenaola declined an invitation by activist Okiya Omtatah and the Law Society of Kenya to stop the construction of the SGR.
The court dismissed their cases in which they claimed that the procurement and construction violated the constitution and the laws of Kenya.
The same judge found that the documents that had been tendered by Omtatah and LSK as evidence in support of their petitions were inadmissible having been obtained illegally.
Lenaola accordingly ordered those documents to be expunged from the record.
Being aggrieved with the decision, the two parties appealed.
But the appellate judges upheld Lenaola's decision regarding the documents.
They said they do not have any basis for interfering with the decision of the High Court to expunge the documents in question.
They also observed that claims by Omtatah and LSK that Parliament was bypassed and that environmental considerations were not considered have no merit. “We are also not persuaded as contended by Omtatah and LSK that because the procurement of the SGR was not taken through a competitive bidding process that in itself renders it unconstitutional,” they said
