SIMBA & SIMBA ADVOCATES2 PETITION NO. 170 OF 2016 ARBS Vs. THE AG & OTHERS. A PRESENTATION TO ARBS ON 14 th JULY, 2016

SIMBA & SIMBA ADVOCATES3 * Law Firm * Double S * Nairobi * 18 Lawyers * 3 Depts * Member ARBS Experience: * Pensions Division * currently acting for several Regulatory Bodies eg. RBA

SIMBA & SIMBA ADVOCATES4 A.INTRODUCTION PPAD ACT ISSUES ARISING B. ACTION TAKEN APPLICATION PETITION C.PROGRESS MADE D.GOING FORWARD/ FUTURE PROSPECTS CONTENTS

SIMBA & SIMBA ADVOCATES5 THE ACT  The Act gives effect to Article 227 of The Constitution and provide procedures for efficient public procurement and for assets disposal by public entities, and for connected purposes.  Came into force on  Repealed previous Public Procurement and Disposal Act, 2005  Contains provisions e.g. deposit of 10% of bid price before Review Board transforms oversight board to regulatory authority annual procurement plans definition of Public Entity is germane

6 ISSUES ARISING a pension fund for a public entity 1.Definition of Public Entity Section 2 (o) of PPAD Act defines ‘Public Entity’ to include Schemes founded by public entities are within the definition as public entities under the PPAD Act and should conform to PPAD Act on matters procurement.

SIMBA & SIMBA ADVOCATES7 ACTION TAKEN BY an Application under a Certificate of Urgency and Petition dated 28 th April 2016 and filed in court on the same day, ARBS moved the Court seeking Conservatory orders to exempt pension funds for public bodies from the obligations under the Act. ARBS has also filed a Petition that seeks interalia a declaration that section 2(o) of the Act is unconstitutional, and a further declaration that the pension funds for public entities basic rights and freedoms have been violated.

SIMBA & SIMBA ADVOCATES8 PROGRESS MADE The firm of Simba & Simba Advocates having been instructed by ARBS to file both the petition and Application on its behalf attended court before Hon. Justice Lenaola on the following occasions;  3 rd May 2016 for hearing of the Application for conservatory orders. The Court noted our prayers in the application seeking to suspend Section 2(O) of the Act pending hearing of the Petition was of a serious nature and there was need for the respondents to put in their replies. The respondents were directed to do so in 14 days.

SIMBA & SIMBA ADVOCATES9 PROGRESS MADE 20 th May 2016, mention for directions. The Respondents had not filed their responses to the Petition and or Application for conservatory orders and requested for more time. We sought interim protection but the judge stated that there was need to see what the Attorney General had to say and granted the Respondents a further 14 days to file and serve their responses. 10 th June 2016, Mention for directions. All the Parties having filed their responses, the Judge directed that the Application be disposed of by way of written submissions.

SIMBA & SIMBA ADVOCATES10 PROGRESS MADE WHERE WE ARE Our Application was fixed for mention on 15 th July 2016 (tomorrow) which was the earliest date available to the court. On this date parties are expected to have filed their written submissions. Submissions It is our observation that the Judge is reluctant to suspend the provision of the Law pending hearing and determination of the Petition as he has earlier intimated of the record that doing so would imply that the Petitioners have an upper hand going into the merits of the Petition.

SIMBA & SIMBA ADVOCATES11 PROGRESS MADE Based on the foregoing, the firm has prepared submissions for both the Application for Conservatory Orders and the Petition. This will fast track the Judgment of the matter putting in mind the Judges reservations to issuing conservatory orders.  The Grounds of Opposition filed by the AG do not quite explain the reason why the said section was included in the Act but we shall wait to see their submissions on this.  RBA did in its Replying Affidavit in support of our Application and Petition and therefore its Submissions will buttress ours. The support by RBA weakens the Attorney General’s case and thus a big boost to the Petition.

SIMBA & SIMBA ADVOCATES12 GOING FORWARD/ FUTURE PROSPECTS whilst grant of conservatory orders may be a preferable temporary solution, it is more advantageous to have the entire Petition promptly settled. The Judge is expected to give a Judgment date once all the parties have filed their submissions. We shall appear before him on 15 th July 2016 to confirm whether all submissions have been filed and thereafter get a judgment date.