The former Attorney-General and immediate Cabinet Secretary for Public Service, Justin Muturi, has found himself at the heart of a brewing scandal involving a KShs 1.2 billion tender at the Kenya Ports Authority (KPA).
According to the Nation, the controversy centers around his involvement in advising KPA to approve a price variation for a contractor, Wilfak Engineering Limited, which has led to a legal battle over the terms of the tender.
The contract, which involves the removal of hazardous asbestos roofing from KPA premises, was awarded to Wilfak Engineering in 2019.
Public Service CS JB Muturi during the funeral service of former Embu Senator Lenny Kivuti’s son. Photo: Tuko Source: Instagram
However, delays in the start of the project, due to KPA’s financial constraints, have now led to a dispute over price variations.
In a letter dated July 13, 2023, Muturi provided legal counsel to KPA, advising that the contractor’s request for price adjustments, based on prevailing market rates, was “legal and allowable.”
While KPA has resisted these changes, arguing that the variations would lead to significant financial losses, Wilfak Engineering contends that without these adjustments, it will be unable to fulfill its obligations under the contract due to rising costs of materials and labor.
The contractor argues that KPA’s refusal to allow the price variation has placed it in a difficult financial position, making it hard to meet the terms of the original agreement.
The central issue lies in Section 139 of the Public Procurement and Asset Disposal Act (PPAD), which permits price variations due to changes in market conditions.
Muturi, who served as Attorney-General from 2022 until June 2024, advised KPA that such price variations were legally permissible, thus placing his actions under the spotlight.
His advice has now become a focal point in the ongoing court proceedings, which have reached the Court of Appeal.
Wilfak Engineering was awarded the tender for the removal of asbestos, reroofing, demolitions, rainwater harvesting, and solar backup systems at the port of Mombasa.
However, due to delays in the start of the work, which was supposed to commence in 2019 but only began in 2022, the contractor is claiming financial losses, including lost profits and expenses incurred in securing waste disposal sites and machinery.
The dispute began when KPA, led by Managing Director William Ruto, sought legal advice from Muturi regarding the contractor’s request to amend the contract to reflect current market rates.
Muturi, in his response, advised that the price variation was necessary and lawful, recommending that the terms of the agreement be revised to include these adjustments.
KPA, however, opposed the price changes, with the authority arguing that they would result in financial losses. The case moved to the High Court, where Justice Francis Gikonyo ruled against Wilfak Engineering, dismissing its application to amend the consent order.
The ruling has been appealed, with the contractor seeking to have the decision overturned by the Court of Appeal.
In their appeal, the contractor’s lawyer, Kibe Mungai, argued that the High Court had overlooked the fact that KPA had specifically requested the AG’s advisory to facilitate the revisions.
Mungai further argued that the judge had failed to consider the public interest aspect of removing the hazardous asbestos, a task that had been declared a national priority by the government.
