A court battle over a Sh1.2 billion tender to remove asbestos roofing at the Kenya Ports Authority has landed in the Court of Appeal.

Wilfak Engineering Limited, the contractor who won the tender, has sued KPA, arguing that it failed to vary the contract to reflect the current prevailing market prices, as the Attorney General had recommended.

The two were initially before High Court Judge Francis Gikonyo, who declined to issue the orders.

Nevertheless, Wilfak’s lawyer, Kibe Mungau, argued in the appeal papers, exclusively seen by The Standard, that the judge erred in not affirming a consent agreement between his client and KPA.

“The learned Judge erred in failing to consider the import of public interest in removal of hazardous materials, namely asbestos roofing in the subject premises in determining the prudence of settling this matter in the manner proposed in the advisory of the Hon. Attorney General in his letter dated July 13, 2024,” argued Kibe.

Asbestos was widely used in Kenya’s construction industry in the 1960s and 1970s and remains in government buildings, hospitals, schools, and even water supply systems.

Classified as a human carcinogen, asbestos exposure is linked to severe health conditions, including lung cancer and mesothelioma (a cancer that develops in the tissue lining of the lungs, abdomen and heart).

This caused the government to order Kenyans to remove the roofing sheets. On March 11, 2025, the cabinet ratified a directive to remove asbestos from all government and private buildings nationwide to mitigate health risks.

In the directive, the National Environment Management Authority (NEMA) was tasked to oversee the safe removal, disposal, and handling of asbestos.

At the same time, county governments were urged to establish designated disposal sites, and property owners were to pay the cost of removal; under the Polluter Pays principle, property owners would bear the cost of removal.

The government said the move would reduce the future burden of disease, cut healthcare costs, and enhance environmental safety.

Kibe said Wilfak Engineering moved to court to block KPA’s termination of the tender dated September 9, 2022.

He further said that KPA sought to settle the dispute following an advisory from the AG. The government legal advisor told KPA that the project could not be carried out at a lower price than the one Wilfak had offered.

Kibe said the contract involved the removal of asbestos, re-roofing, demolition, rainwater harvesting, solar backup system and associated works at the port of Mombasa.

He argued that although the award was dated October 11, 2019, it was not signed until September 8, 2022 after they had signed a consent in court.

The lawyer said it became apparent that the project could not commence owing to the cost of materials and labour.

“ By a letter dated July 13, 2023, the Hon. Attorney General advised the respondent, inter alia, that the filed consent herein could be reviewed as proposed by the applicant by amending the main contract to incorporate the variations on material and labour prices.

The applicant is apprehensive that since the subject contract is set to lapse in September 2025 and there has been stoppage of work, the respondent might terminate the contract, hereby occasioning the Applicant substantial and or irreparable loss,” argued Kibe.

Wilfak’s director Sammy Maina, in his supporting affidavit, said KPA would pay for the project in a span of three years on condition that Wilfak would get a payment guarantee from a reputable insurance firm.

He said that time had made it difficult to carry out the project as the cost had gone up. Nevertheless, he said, the firm had already secured places to dispose of the hazardous material at a cost.

“ Considering the deepening economic recession, which is more acute in the construction sector, the Applicant stands to suffer substantial and irreparable loss given the fact that the termination of the contract for no fault of its own – will expose it to a high risk of irredeemable financial distress possible collapse,” said Maina.

He stated that Wilfak had to seek the court’s intervention after the William Ruto led authority declined to implement the AG’s advisory.

Maina now wants the court to block KPA from walking out of the deal, which is out to lapse in September.

“Since it cannot be possible for any other contractor to complete hte subject works at a cost lower than the Plaintiff requires to complete the same, the public interest will be best served through amendment of the Consent Order dated September, 202 as sanctioned by the advisory of the Attorney General,” he said.