Kenya Tea Development Agency (Holdings) Ltd has been cleared to procure over 99,000 tonnes of fertiliser for smallholder farmers, after a judge dismissed a case filed by a bidder who lost the tender.
High Court Judge Joseph Sergon dismissed the case filed by SLDR International Ltd, which challenged the tender for the supply of 99,875 tonnes of NPK chemically compounded fertiliser, for the year 2025. NPK is a fertiliser that contains a mixture of nitrogen (N), phosphorus (P), and potassium (K).
The agency invited bids in February, for the supply of the commodity to be distributed to over 700,000 smallholder tea farmers. Oriole Homes Ltd won the tender on May 14.
Justice Sergon dismissed the petition faulting the firm for moving to the High Court before challenging the tendering process at the Public Procurement Administrative Review Board.
“... this court finds that the subject petition offends the doctrine of exhaustion and as such, this court’s jurisdiction was prematurely invoked,” the judge said.
The firm had accused KTDA of placing conditions above those that had been set out in the tender document.
The firm’s Director Morgan Ezekiel Kipkurui submitted that the procurement process was opaque, discriminatory, and in violation of constitutional norms of transparency, fairness and equality.
Mr Kipkurui further said KTDA failed to respond to its request for information after its bid was rejected.
KTDA opposed the case arguing that it was a private entity hence the Public Procurement and Assets Disposal Act, does not apply to it.
The agency added that the procurement was conducted in compliance with the procurement procedures and rules and that the bid SLDR International Ltd was justly and legally rejected. The court was informed that the firm had won the tender to supply the commodity in 2023 and 2024.
Mr Kipkurui attached a document showing that KTDA had been allocated at least Sh3.4 billion for the fertiliser subsidy programme, hence subject to the Procurement Act.
The judge noted that KTDA was a private limited liability company registered under the Companies Act.
The Nairobi Securities Exchange-listed firm has invested heavily in its properties amid increased competition from new hotels in Kenya and other markets.
However, the judge said to the extent that KTDA received public funds for the procurement of the fertiliser, the procurement process ought to be governed by Article 227 of the constitution and the PPAD Act.
“It is the finding of this court that the procurement process that is subject of this petition namely: the tender for the supply of 99,875 metric tonnes of NPK 26:5:9 chemically compounded fertiliser was undertaken in fulfillment of a private obligation but with substantial funding from public coffers,” said the judge.
While dismissing the case, the judge said the Act was clear that any party dissatisfied with the procurement process may seek administrative review before the board, within 14 days of notification of award.
The judge stated that where the law provides a mechanism for resolving disputes, that mechanism must be strictly followed.
He said the bidder was bound to comply with the dispute resolution mechanisms established under the Act, which requires an aggrieved party to seek review before the Public Procurement Administrative Review Board within 14 days.
Justice Sergon said the losing bidder crafted the case into a constitutional petition to bypass the review board.
