The legal battle over the proposed leasing of Nairobi’s Jomo Kenyatta International Airport (JKIA) to the Indian conglomerate Adani Group is set to intensify as a three-judge bench of the High Court begins hearing the case on December 17, 2024. This comes after a series of legal challenges, including the key issue of jurisdiction, which may determine whether the High Court has the authority to hear the case.
The case was initially filed with concerns regarding the potential privatization of JKIA through a lease agreement with Adani, a move that critics argue could have significant implications for Kenya’s sovereignty and control over one of its most critical assets. Justice Jairus Ngaah, Moses Ado, and Lucy Njuguna, who have been appointed to hear the case, will address a range of issues, starting with an application to set aside interim orders that currently prevent the lease from moving forward.
At the heart of the legal proceedings is a preliminary objection raised by the state, challenging the jurisdiction of the High Court to handle the matter. According to the government’s legal team, led by the Attorney General, the case should not be under the purview of the judiciary but rather be addressed by the Public-Private Partnership (PPP) committee. This objection hinges on a clause within the Public-Private Partnership Act, which designates the PPP committee as the authority to resolve disputes arising from decisions made by the contracting authority, the PPP committee, and the PPP directorate.
The High Court’s involvement in the case was triggered when Justice John Chigiti issued an interim order in late October 2024, halting the proposed leasing process. This order prohibited any person or entity from implementing or acting upon the Adani proposal until the court had fully determined the legal issues surrounding the deal. However, the state, through the Ministry of Transport and other relevant agencies, has since filed an application to have these orders lifted, arguing that the matter is outside the jurisdiction of the High Court.
The December 17 hearing will see the three-judge bench consider whether the High Court has the legal standing to intervene in this case, with parties on both sides expected to submit their responses and arguments. The outcome of this hearing could have significant consequences for the proposed lease and the broader debate on the privatization of national assets in Kenya. The state’s position is that the lease agreement with Adani, which is seen as a vital step toward improving the efficiency of JKIA and addressing financial constraints, falls within the framework of a public-private partnership and thus should not be subject to judicial oversight.
Adding to the complexity of the case, there is a parallel legal proceeding, filed by journalist Tony Gachoka and Mt Kenya Jurists, which raises similar concerns about the Adani proposal. This case, which was filed before a different division of the High Court, will proceed for hearing on November 27, 2024. This case, like the one being heard by the three-judge bench, questions the legal and procedural legitimacy of the proposed lease.
The government’s preliminary objection to the jurisdiction of the High Court highlights the ongoing tension between the executive’s push for economic reforms through public-private partnerships and the judiciary’s role in overseeing the legality of such decisions. With multiple cases and legal objections stacking up, the fate of the JKIA-Adani lease deal hangs in the balance, awaiting the court’s determination.
This case is not only about the future of JKIA but also raises broader questions about the governance and transparency of public-private partnerships in Kenya. As the December 17 hearing approaches, all eyes will be on the court’s decision regarding jurisdiction, which could set a crucial precedent for future disputes involving the privatization of public assets.
