Three-judge bench to sit on port terminal privatisation case

A three-judge bench appointed by Chief Justice David Maraga to hear and determine a petition challenging the takeover of the second container terminal by the Kenya National Shipping Line will visit the facility later this month. 

The bench consisting of Mombasa Presiding Judge Erick Ogola, Mugure Thande and Alfred Mabeya will visit the port on August 26 to orient themselves with the container terminal at the centre of controversy.

They ruled that interim orders issued by High Court judge Patrick Otieno baring the enforcement of amendments to the Merchant Shipping Act were to remain in force until the next hearing.

“Interim orders will remain in place, all parties in the matter should exchange affidavits and file their responses within the next two weeks,” said the judge.

This was after Attorney General Paul Kariuki challenged the jurisdiction of the High Court to hear the matter. 

Conservatory orders 

The bench, which began its sittings on Friday, heard that the AG, Kenya Ports Authority alongside Transport Cabinet secretary James Macharia applied to have conservatory orders earlier issued by Justice Otieno struck out since they were issued before the notice of motion was heard inter-parties.

Waweru Gatonye, who was appearing for the AG, told the court that the orders were issued without the parties being heard and that for the matter to proceed afresh before the new bench, there ought to be no orders in place.

“The AG is seeking for the review of the orders earlier issued, since there is a discovery of new facts on the publication of the gazette notice which are the grounds which the orders were premised by the judge. We were never given a chance to argue our pleadings to the court,” he said.

He told the court that no party should be allowed to benefit by an order made by mistake and that the court was at liberty to issue appropriate reliefr at any stage during the hearing.