Sophie Njoka and KNA

The government has suffered a major blow after the High Court suspended a directive requiring that all cargo imported through the Port of Mombasa be transported exclusively through the Standard Gauge Railway (SGR). 

The five-judge bench sitting at the Malindi Law Courts in Kilifi ruled that the directive will be in force for 180 days to enable the government regularise the directive, which they agreed served a legitimate governmental interest. 

Justices Lydia Achode (presiding), Eric Ogola, Anthony Murima, Prof Joel Ngugi and Pauline Nyamweya ruled that since the directive affected the rights of transporters and other stakeholders, the Kenya Ports Authority and the Kenya Railways Corporation ought to have subjected it to public participation in conformity with Article 47 of the Constitution. 

“Although the directive serves a legitimate governmental interest, we found that it was not subjected to public participation in conformity with Article 47 of the Constitution and we hereby suspend it (directive) to allow the government to regularise it,” they said. 

“Such derivatives must be arrived at in a manner that is administratively fair under article 47 of the Constitution and the fair Administrative Actions Acts, a decision removing all sets of options from an economic sector, targeted group, participants in particular trade or profession and requiring them to channel their economic activities in a particular direction is one that must be arrived after due consultations and meaningful public participation,” the judges ruled.

Court further established that there was no attempt made by the respondents namely, Attorney General, Transport Cabinet Secretary, Kenya Ports Authority (KPA) and Kenya Railway Corporation (KRC) to subject the directives to public participation.

“Indeed all the respondents took the position that no public participation was required since the two directives were products of an internal operation authorised under the parent statuses, a reasoning which the court finds incorrect,” read the judge.

Public participation

Transport PS in her replying affidavit, had indicated that there was enormous public participation, consultative work and research, which had been carried out amongst key stakeholders before the government issued the directives.

“To disrupt the orderly operations of the port and the operations of the port and the operationalisation of the National Transport Policy, the effect of that order is hereby suspended for 180 days to allow respondents an opportunity to regularise the situation,” the judgment.

KPA and KRC had in September 2014 entered into an agreement where the latter was to haul freight and other cargo to the Inland Container Depot at Embakasi, Nairobi, once the operations of Standard Gauge Railways commence.

In March and August 2019, KPA issued a notice directing all cargo from the port of Mombasa to be ferried through SGR.

However, three Mombasa residents alongside Kenya Transporters Association Ltd moved to court seeking for a declaration that importers of cargo at the port of Mombasa be allowed to choose the mode of transportation for their cargo.

Element of freedom 

“A necessary element of freedom and dignity of any individual is an entitlement to be allowed to choose voluntarily rather than through a feeling of obligation,” stated the judges.

“A decision removing all sorts of options from an economic actor, targeted group, participants in a particular trade or profession and requiring to channel the particular economic activity in a particular direction is definitionally one that must be arrived at after due consultation and meaningful public participation,” the judgment read. 

The judges said that, to meet the Constitutional and statutory threshold, the KPA should have given a notice for the intended directives to petitioners, accorded them and opportunity to be heard and give reasons for the decisions made. 

“None of these happened. For this reason alone, the impugned directives are constitutionally infirm,” they ruled. 

The judges, however, dismissed a bid by the three residents who wanted the operations of the Port of Mombasa be managed by the County Government, saying the petitioners were not clear about the specific remedies they sought. 

“They did not place sufficient material to make a concrete pronouncement if the national government exceeded its mandate.

We are unable to accede to the issue on an order that the management and operations of the port are functions of the county government,” the ruling stated. 

They also absolved the Competition Authority of Kenya from blame, saying the competition regulator had initiated investigations into the complaint and should not have been sued at all. Additional reporting by KNA