In recent years, Kenya has been making significant efforts to develop and improve its infrastructure to support economic growth and enhance connectivity within the country and with neighbouring regions. Kenya's road infrastructure is a critical component of its transportation network, facilitating trade and commerce. However, inadequate road capacity, safety and connectivity have long hindered efficient transportation in the country.

Freshfields provided comprehensive advice to a consortium comprising VINCI and Meridiam SAS on a first-of-its kind, first-in-country public private partnership with the Republic of Kenya for the Nairobi-Nakuru-Mau Summit Highway. This significant and hugely ambitious €1.3bn, 30-year project envisions a modern, world-class highway that reduces congestion, improves travel times and significantly enhances safety.

The Freshfields team, led by partners Gabriel Mpubani in London and Pascal Cuche in Paris, offered guidance throughout the competitive bidding process, negotiations during the preferred bidder stage, and subsequent risk allocation in the engineering, procurement, and construction and operations and maintenance agreements.

Freshfields' unparalleled international experience in handling projects of similar scale and complexity around the world played a pivotal role in ensuring the consortium's confidence in delivering the project. Drawing on their vast knowledge and expertise, the Freshfields team identified potential challenges and devised effective strategies to mitigate risks. Combining a global perspective with local knowledge allowed them to offer unique insights and solutions tailored to the specific requirements of the project.

Environmental, economic and legal risks

The Nairobi-Nakuru-Mau Summit Highway is part of the strategic Northern Corridor, which is the busiest and most important trade corridor in East Africa. It provides vital access through Kenya from the Mombasa port to the landlocked countries of Burundi, Eastern DRC, Rwanda, South Sudan and Uganda, helping to promote trade and regional integration.

The highway traverses various national game parks, and the project design was intended to to minimise and mitigate wildlife and habitat disruption, manage soil erosion, address water and air pollution, ensure worker safety, implement effective waste management practices, and preserve cultural heritage sites.

Freshfields undertook complex negotiations with the Kenyan government and Ministry of Finance across a range of issues, including the structure of the National Toll Fund Regulations that underpin the associated toll fund to deliver liquidity support and the government letter of support that sought to address certain political and commercial risks.

This necessitated close collaboration with one of our 'StrongerTogether' partner firms in Kenya to deliver practical legal solutions that were vital to finding an optimal risk allocation that would allow the project to access international funding.

A pioneering endeavour

The Nairobi-Mau Summit Highway project will, upon its conclusion, represent a pioneering endeavour in Kenya, and allow a major road project to access international project financing on a true PPP basis, potentially inspiring similar infrastructure development initiatives and promoting regional integration.