SPOTLIGHT: Mombasa’s multi million shilling parking scandal uncovered

By EUGENE OMILO

The slow wheels of justice could after all be catching up with a cartel of well connected former and present Town Hall and Kenya Airports Parking Services (KAPS) officials enjoying the fruits of an illegal multi million shilling public partnership contract signed between the two entities seven years ago.

The anticipation comes after a directive was issued by the high court last Friday to bar an agent of the Council from collecting parking fees or clamping defaulting heavy commercial vehicles within the municipality in favour of a suit filed by the Kenya Transport Association (KTA) last year.

After the disgrace of Summit Cove Lines Ltd, observers now have their eyes fervently trained on the scales of justice over yet another ongoing case involving the council and another lobby group challenging a similar contract between the council and KAPS.

Last year, Coast Residents Platform which is the plaintiff in the suit registered a first win in the case that has dragged for close to three years when Justice Jackton Ojwang’ (now of the Supreme Court ) threw out an application by the Council and KAPS to have the plaint by the lobby dismissed on technical grounds.

The lobby wants the high court to annul a public private partnership between the council and KAPS claiming the  contract is illegal as the latter had due advantage in being considered for the contract.

The plaint was filed in April 21,2008 before Justice Jackton Ojwang’ through a representative of the lobby, Mr.Raphael Livu, the group’s Programmes Co-ordinator.

Sensing the sensitivity of the suit, the council and KAPS immediately moved to court on May 20, 2008 to file a statement of defence challenging the legibility of Mr. Livu to sue on behalf of Coast residents.  

The two parties claimed the complainant had no locus standi to institute the suit as he had no written authority from the Coast residents represented in the suit. 

However, Coast Residents Platform filed a replying affidavit to counter challenge the move made by the Council and KAPS and later on carried the day after the court dismissed the latters’ application and allowed the proceedings to continue.

In his three page ruling, Justice Ojwang’ overlooked a submission by the council and KAPS indicating that any person aggrieved by the process in which the tender was awarded should channel their complaints to the Public Procurement Administrative Review Board.

Ironically, the basis of last Friday’s ruling issued by the same court had quashed the legitimacy of Summit Cove Lines Ltd to provide parking services for trucks claiming the council contravened public procurement regulations. 

In its argument, the Coast Residents Platform states that the agreement between the council and KAPS is unfair and illegal as it is calculated to only benefit KAPS through its subsidiary company at the expense of the rate payers of Mombasa town. 

An interesting twist in the charade is that currently, the Council and KAPS have become strange bed fellows with the former accusing the latter of controlling its revenue tap.

Town clerk Tubman Otieno said in a joint press conference with Kenya National Chamber of Commerce and Industry  Mombasa branch chairman James Mureu last month that the council is losing more than Sh 4 million a month from the service as a result of the contract with KAPS.

The local chapter of KNCCI announced that it would seek to be enjoined into the case with Coast Residents Platform as it was not happy with parking services in the town.

The parking services are currently being undertaken by a private company, KAPS Municipal Parking Services, which  is a limited liability company formed after the contract between the council and KAPS signed in June 2006.

Its shareholding was divided in the ratio of 75 per cent for KAPS and 25 per cent for the Municipal council though the Council did not contribute materially in the formation of the company.

 According to details contained in an agreement between the Council and KAPS obtained by this blogger, the contract between the two is renewable after a period of 10 years.

The agreement also indicates that the shareholding ratio would be revised to 65 per cent for KAPS and 35 per cent for the Council when the agreement is renewed in 2016.  

Further, the agreement states that the Council’s employees previous charged with handling parking services would be deployed under the new company whose management is no different from that of KAPS.

Since the signing of the pact, the employees’ future has been uncertain as they have at times forced to go without their monthly pay as their new employer (KAPS) failed to honour his obligations to pay their salaries time and again.

The contract states that KAPS Municipal Parking Services will be remitting an advance share of profits amounting Sh1 million every month in arrears for the first three years and thereafter increase the figure at the rate of 10 per cent each year.

Again, servicing and maintenance of the street car parks is undertaken solely by the Council.

At the moment, the court is yet to issue hearing dates for the case.

Last Friday, the High Court in Mombasa issued the directive to bar Summit Cove Lines Ltd from controlling the parking of heavy commercial vehicles after it established that the Council had awarded the contract to the private company illegally.

KTA who had moved to court early last year to stop the public private partnership initiative between the two entities argued that the Council had appointed the private firm to run the designated parking yards without inviting expression of interest by competitors, hence according undue preference to one party, namely Summit Cove Lines Ltd.

The council also failed to declare the plot numbers of the four yards in Kibarani, Magongo, Changamwe and Miritini which the transporters has insited belonged to private hands.

Earlier in 2010, transporters called on a strike that lasted almost a week to protest at the partnership between the Council and Summit Cove Lines Ltd which led to a near paralysis of operations at the port of Mombasa as cargo was left uncollected.

Apparently, transporters were angered by the fact that the Council compelled them to park at the privately owned yards while waiting to load petroleum products from the Shimanzi Oil circuit yet they themselves have invested in their own yards.

Efforts by the Kenya Maritime Authority to arbitrate over the impasse did not bear any meaningful fruit, prodding transporters to sue the council and the private firm.  

Though Summit Cove Lines Ltd insisted that it sought the approval of Local Government minister Musalia Mudavadi on the public private partnership, Justice Jackton Ojwang’ said in his ruling that the court had established that the council awarded the contract to the private firm without complying with the Public Procurement and Disposal Act.

According to analysts, if the recent ruling by the high court to dishonor the contract between the Council and Summit Cove Lines Ltd is anything to go by, then the Council’s contract with KAPS could as well be destined to the doldrums. 

Even with such an eventuality, the question remains whether or not the culprits will be brought to book.