Court stops transportation of cargo by SGR to Naivasha

The High Court has suspended the compulsory use of Standard Gauge Railway and Naivasha Inland Container Depot (ICD) for Regional Cargo.

Lady Justice Pauline Nyamweya issued the temporary orders following a suit by Activist Okiya Omtatah challenging the notice issued by Transport CS Macharia making it compulsory for goods destined for Uganda, Rwanda and South Sudan to be transported by SGR to the Naivasha Inland Container Depot.

“Upon careful consideration of the Chamber Summons application dated 2nd June 2020, I am satisfied that the ex parte applicant has demonstrated that this matter is urgent, and that the same ought to be heard on a priority basis,” ruled the Judge.

The notice on transit cargo was to take effect from June 1.

Emergency policies

“I find that the ex parte applicant (Omtatah) has met the threshold of an arguable case, and is therefore entitled to the leave sought to commence judicial review proceedings against the Respondent (Transport CS),” she said.

In the suit papers, Omtatah claims notice has absolutely no basis in law, and breaches express provisions of the Constitution and of national legislation.

Omtatah argues that the Transport CS does not have any power or any capacity in law to issue the impugned notice in the manner he purported to do.

“There was no public participation leading to the publication of impugned notice. Under the law, industry players, stakeholders.

“The general public in Kenya ought to have been consulted on the impugned policy but they were not,” he argued in court documents.

According to Omtatah, the claim that all transportation on the SGR for clearance at the Naivasha ICD all transit cargo/containers imported through the Port of Mombasa and destined for Uganda, Rwanda and South Sudan will help contain the coronavirus pandemic is not backed by any scientific study.

He argues that the enactment and enforcement of such emergency policies and legislation, limit rights and fundamental freedoms.

“Under Kenya’s Constitution, emergency rule is a legal regime governed by the principles of legality of administration, based on the rule of law. There is nothing like de facto emergency power,” he argued.

Omtatah claims that blocking out other transporters of the cargo as stated in the impugned notice, in itself, violates Article 40 of the Constitution on property rights, as read with Article 260, which prohibits the State from arbitrarily depriving a person of property of any description, or of any interest in, or right over, property of any description. The case will be mentioned on July 22 for further directions.