Blow to Adani as High Court refers case to Koome for empanelment

The High Court has referred a case challenging the proposed leasing of Jomo Kenyatta International Airport (JKIA) to Adani Group to Chief Justice Martha Koome for the appointment of a bench to determine issues raised in the petitions.

Justice John Chigiti concurred with the Kenya Human Rights Commission (KHRC) and the Law Society of Kenya (LSK) that the issues raised in the petitions were weighty and should be determined by a three-judge bench.

"The matter is hereby certified and referred to the Chief Justice for Constitution of a bench in terms of Article 145(4) of the constitution, and is so ordered," Justice Chigiti ruled.

The judge also declined a request by Adani group to dismiss the lawsuit.

When declining to strike out the case, Justice Chigiti emphasised the importance of establishing a bench before addressing the substantive issues at hand over the deal raised in the judicial review case KHRC and LSK.

In his ruling, the judge also concurred with the Kenya Aviation Workers Union that the matter of certifying the case for referral to Chief Justice Koome for the empaneling of a bench should be determined first 

“I am of the formed view that the issue of formation of a bench should come first. Should a bench be set up, then it shall be able and be in a position to rest its mind on all the issues conclusively,” the judge ruled.

Adani Group has opposed the petition's jurisdiction, arguing that the dispute should fall under the Public-Private Partnership Petition Committee.

"The High Court cannot handle the matter as it is governed by the Public Private Partnership Act. The case violates the Public-Private Partnership Act of 2021 and should be addressed accordingly by the committee before the High Court intervenes," Adani argued.

The firm said section 79 of the Public Private Partnerships Act establishes the petition committee with the powers to hear and determine any petitions regarding the decisions of the Public Private Partnership Committee, the directorate of public-private partnership or a contracting authority.

“The  Kenya Aviation Workers Union has failed to exhaust the dispute resolution mechanism stipulated in the law and therefore, this court lacks jurisdiction to hear and determine this matter,” Adani Enterprises Ltd said.

The company maintains that the objections to the leasing arrangement are premature, as the project is still undergoing due diligence and has not yet received final approval.

KHRC and LSK challenged the deal arguing that JKIA is a strategic and profitable national asset and the deal is, therefore, irrational and violates the principles of good governance, accountability, transparency, and prudent and responsible use of public money.

The petitioners argue that the terms of the 30-year lease agreement are dubious, citing concerns over legality, transparency, and national sovereignty.

They contend that the lease, which involves a strategic national asset, was negotiated without adequate public consultation and lacks transparency.

“The government has or is about to sign a concealed concession agreement with Adani for the unlawful alienation of the airport for a period of 30 years,” LSK says

The petitioners argue that the lease deal was finalised without the necessary approval from Parliament, which they believe is required for such significant transactions involving national assets.