Justice Mugure Thande dismissed the petitions by the lobby group Consumer Federation of Kenya (Cofek) and Kairu Mbuthia, stating that the petitioners failed to exhaust available dispute resolution mechanisms.
The judge said the petitioners ought to have filed the complaint before the Petition Committee or the Public Private Partnership (PPP) committee established under the Directorate of Public Private Partnership, under Section 15 of the PPP Act.
The judge said by failing to seek redress before the proper channels, the lobby and Mr Mbuthia failed to exhaust the existing mechanisms of dispute resolution.
“As such, these grievances ought to have been raised before the Petition Committee by lodging a petition as outlined in Section 75(4),” the judge said.
The judge said there was no suggestion by the petitioners that the mechanisms available in the PPP Act are ineffective, or that the petition committee could not offer adequate or sufficient relief.
The lobby group has sued the Transport Ministry, Attorney General, Kenya National Highways Authority (KeNHA), and Moja Express Company. It wanted the court to compel the government to replant the trees cut and the lower deck repaired first and proper drainage developed.
Further, the court was informed that there was no sufficient public information on the use of the Nairobi Expressway and in particular, the formulation of base toll rates, which were introduced on December 21, 2020.
The lobby group said the government introduced and later increased the base toll rates applicable for using the Expressway, a move they said would curtail citizens’ use of the road, hence discriminative.
KeNHA submitted that the court lacks jurisdiction to hear the case based on Section 75 of the PPP Act, which establishes the Petitions Committee to consider all complaints submitted by a private party, during the tendering process and entering into project agreement under the Act.
Additionally, it said that the Directorate of PPP is mandated to determine issues of imbalance in the distribution of benefits and to promote sustained transfer of project-linked economic benefits to the citizens.
First published in the Business Daily