Court to rule on whether three or five judges will hear petition on Adani-JKIA lease deal

The High Court will on October 25 decide whether the petition filed to stop the proposed deal for India's Adani Group to lease Jomo Kenyatta International Airport for 30 years will be heard by an empanelled bench of three or five judges.

Justice John Chigiti hinted at the importance of forming the bench before addressing the substantive issues raised in the petition against the proposed leasing of the country's leading Airport.

The issues are raised through a judicial review in the case filed by the Kenya Human Rights Commission (KHRC) and the Law Society of Kenya (LSK) who want the deal stopped by the high court.

The judge agreed with the Kenya Aviation Workers Union (KAWU) that the matter of certifying the case for referral to Chief Justice Martha Koome for the setting up of the panel should be determined first.

"I am of the informed view that the issue of formation of a bench should come first. Should a bench be set up, then it shall be in a position to rest its mind on all the issues conclusively," Justice Chigiti ruled.

Adani Group has opposed the petition's jurisdiction, challenging the high court's authority to determine the matters raised in the petition.

The company argues that the dispute before the high court should fall under the Public-Private Partnership Petition Committee (PPPPC) and not the court.

"The High Court cannot handle the matter as it is governed by the PPPPC Act. The case violates the PPPPC Act of 2021 and should be addressed accordingly by the committee before the High Court intervenes," the company says.

The firm said section 79 of the 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 company says KAWU has failed to exhaust the dispute resolution mechanism stipulated in the law "and therefore, this court lacks jurisdiction to hear and determine this matter".

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

Justice Chigiti directed the parties involved to file and exchange their responses and submissions in preparation for a ruling on October 25.

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 say 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 30 years," LSK says.

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