High court set to rule on Ksh3.5b power project

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By Lilian Otieno

High court is set to deliver a ruling in which a Sri-Lanka based firm is challenging the tendering and award of the proposed 3.5 billion shillings power project tender in three counties on February 10th next year.

A move that has seen the orders stopping the project extended until the said date.

In the case, Hydropower International PVT a Sri-Lanka firm moved to the High Court seeking to block the 3.5 billion shillings steered by Kenya Tea Development Agency (KTDA).

In a case filed by Nyachoti and company advocates, Hydropower International (PVT) Ltd argues that the tender awarded to Indian firm Boom Systems (PVT) Ltd and VS Hydro (PVT) Ltd also from Sri-Lanka was unlawful.

The legal battle involves Chemosit (2.5MW), Kipsonoi I (3.6MW) and Rupingazi (1.8 MW) small Hydropower projects located on Rivers Chemosit, Kipsonoi and Rupingazi in Kericho, Bomet and Embu counties.

Kipsonoi is the highest at $18.8 million equivalent to 1.9 billion shillings, Rupingazi will cost $7.4 million equal to 751 million shillings while Chemosit will cost close to $9 million equal to 914 million shillings and will take 30 months to complete.

Hydropower also argued that the firm that won the contested tender did not carry out site visits which were a requirement according to the tender rules.

The firm had sought the court to stop KTDA from signing the deal until the case is heard and determined.

Meanwhile, a company hired to construct a section of the Sh350 billion Standard Gauge Railway (SGR) railway line has applied to have two directors of a Chinese company arrested for refusing to pay it over 20 million for work done.

Mjomba Agencies Limited urged High Court Judge Lady Justice Lucy Mwihaki Njuguna to order for the arrest of Yunwen Hu and Xueren Wei who are both directors of Mvule Investments Company Limited, one of the Chinese companies constructing the SGR and compel them to deposit a security equivalent to the amount owed.

Mjomba says it completed the work it was hired to do in May 2016 and has not been paid its dues amounting to Kenya shillings 20,281,856.60.

Mjombas’ counsel Lawyer Nelson Masaviru told Justice Njuguna that unless the court intervenes and orders for the arrest of the two they may leave for China without paying them.

“A director of Mvule Yunwen Hu has told me repeatedly that its meaningless to take the company to court because Kenyan Courts are the slowest in the world and that by the time the case is finalized he will have long gone back to China,” Ubanus Muli Maingi a director of Mjomba discloses in his sworn affidavit.

But lawyer Odera Obara for the two directors of Mvule Mr.  Hu who has 900 shares in Mvule and  Xureen Wei (100 shares) asked Justice Njuguna to suspend for a while the hearing of the application to have them arrested and detained until an application whether they court has jurisdiction to handle the dispute or not is heard and determined.

Obara said there is a clause in the agreement which provides a window for arbitration should a dispute arise.

He asked the judge to first decide whether the dispute shall be dealt with by an Arbitrator.

Nelson Masaviru objected to the arbitration saying there wasn’t such a clause when Mjomba and Mvule entered into a contract for the construction of Section 4 of the SGS-Sultan Hamud Area.

“The issue of arbitration is a delaying tactic by Mvule not to pay the Sh20.2 million debt,” Masaviru told the judge.

Justice Njuguna adjourned the case to February 8, 2017 a few months to the official launch of the railway line.

Mjomba says the delay by Mvule to pay them is a ploy to run away with their money.

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