In the petition filed under certificate of urgency, the Katiba Institute argued that by conferring on the Executive, through the PPP Committee, the final authority to approve public expenditure under PPPs at the The exclusion of Parliament, sections 59, 60, 61, 62 and 72(1) and section 63 of the Act, violate the Constitution.

The Katiba Institute said that by making discretionary the decision whether to submit PIPs to open tender, section 44(5) and (6) of the PPP Act violates section 227 of the Constitution. .

“The handling of the JKIA agreement raises substantial doubts about the ability of any subsequent processes related to the project to ensure fairness under Article 227 of the Constitution,” the Katiba Institute said.

The organization said that in the Budget Policy Statement 2024, the PPP Directorate revealed that 31 projects were ongoing and at different stages, with most of them at the procurement stage.

The Katiba Institute cited the concession for the construction of three power transmission lines and two substations, which the Indian conglomerate will operate for 30 years at a cost of Sh95.68 billion.

The agreement was concluded between Kenya Electricity Transmission Company and Adani Energy Solutions, a subsidiary of the Adani Group.

The second deal in the offing is the 30-year concession for the development and operation of the JKIA by Adani Airports Holdings Ltd, which the PPP committee approved.

Through lawyer Henry Paul Gichana, the Katiba Institute said the two projects were initiated by PIPs under the PPP Act, making them non-competitive, contrary to the requirements of Section 227 of the Constitution.

“Their developments and conclusions have been shrouded in great secrecy and a lack of transparency, contrary to the provisions of Articles 10 and 201 of the Constitution requiring openness and accountability as well as sustainable development, and therefore constitute a potential threat to the public interest,” said Mr. Gichana.

He added that the projects were concluded at the sole initiative of the executive branch of government, without involvement or approval of Parliament, although they are public projects drawing or intended to attract public funds, directly or indirectly.

Mr Gichana said the plans received great government support as officials publicly defended them, strongly suggesting the granting of an unfair advantage to the Adani Group over all other private parties.

The lawyer said the possible signing of a concession agreement with the Adani Group for the operation of JKIA risked unfairly prejudicing the rights of other bidders who had expressed interest in the project to a procurement system fair, contrary to Article 227 (1).

The hearing of the cases was adjourned to November 27.

He said Section 61 (2) of the PPPA requires a private party to start a project immediately after signing a concession. There is therefore a real risk that the Adani group could begin the implementation of the electricity transmission signed with Ketraco.

“The court must urgently intervene to keep the precautionary orders in place to preserve Kenya’s constitutional order and decide key questions on the constitutionality of the PPPA,” he said.

The organization further said the case raises important questions of law that should be addressed by a three-judge panel.

The Katiba Institute will ask the court to declare that the unconstitutionality of the PPP law should apply retroactively to the Ketraco and JKIA projects, based on the principle that unconstitutional laws or actions are void from the outset.

“Alternatively, there are justifiable circumstances in which a declaration of unconstitutionality of legislation should have retrospective effect, and the circumstances raised in the petition are considered to be such justifiable circumstances,” Mr Gichana said.

Meanwhile, the government challenged the powers of the High Court to rule on a case filed by activist Tony Gachoka, the Mount Kenya jurist and three political parties, including the Wiper Democratic Movement.

In response to the petition challenging the JKIA deal, the government said the High Court did not have the power to decide the petition as the petitions committee had the original jurisdiction to decide disputes arising from the decisions and processes under the PPP law.

“The court has no jurisdiction under section 75(8) of the Act as the High Court only has appellate jurisdiction for appeals from the Petitions Committee and not with original jurisdiction” , the government said through MMA Advocates.

In the petition, Mr Gachoka accuses the government of planning to hand over JKIA as a gift to Adani.

“The Kenyan government sought to consider divesting KAA’s existing assets and revenue generating facilities as a gift to the 1st and 2nd respondents (Adani Group and Adani Airports Holding), without any apparent benefit to the people of Kenya, by the demand bias. of the PPP Act and other laws in a manner that is neither open nor accountable,” Mr. Gachoka said.

He further alleged that the government was committed to compromising the operations of JKIA to justify the concession of JKIA under the pretext that the Kenyans had failed to manage and operate it in accordance with international standards.

According to him, this was part of a larger plan to pressure the Kenya Airports Authority (KAA) to hand over its mandate to the Adani group.

The Law Society of Kenya (LSK) also challenged the Ketraco-Adani deal.