The Sh201 million order is just one chapter in a much larger, multi-billion shilling legal battle. The contractor, SBI International, has been seeking over Sh1.3 billion in various claims following the 2018 termination of the contract for the dualling of the Kisumu Boys Roundabout–Mamboleo Junction road.
1. The Core of the Dispute
The Sh201 million payment was originally ordered after KeNHA failed to file its defense within the required 14 days.
The Judgment: Because KeNHA missed the deadline, the court entered a “judgment in favour” of the contractor by default.
KeNHA’s Defense: The agency argued that the ruling was delivered in its absence and that it was never properly served with the notice of the ruling.
The Court’s Stance: The Court of Appeal noted that since the contractor could not prove KeNHA was served, the agency’s explanation for the 56-day delay was “believable” and excusable.
2. “Pay Now, Argue Later”
The contractor, represented by Mr. Mishni, argued that KeNHA should adhere to the “pay now, argue later” framework common in construction contracts for completed works.
Public Funds at Risk: KeNHA contended that paying out the Sh201 million from the taxpayer’s coffers before an appeal would cause “irreparable damage” and substantial financial loss, especially if the final appeal is successful.
The Prejudice Factor: The judge ruled that SBI International had not shown that it would suffer “weighty or uncompensable” prejudice by waiting for the appeal process to conclude.
3. The Sh1.3 Billion Context
This specific Sh201 million case is part of a broader fallout from the Kisumu-Mamboleo road project:
December 2018: SBI International abandoned the 8km project, citing unpaid arrears.
April 2019: A Disputes Adjudication Board (DAB) awarded the firm Sh1.3 billion.
October 2024: The High Court dismissed KeNHA’s bid to refer the matter to arbitration, leading to the current series of appeals.
