Battle for Mombasa Port in the hands of three judges

The Court of Appeal sitting in Mombasa will on September 26, 2019 make a judgment on a whether a petition seeking Mombasa County to run the Mombasa Port will proceed. A three-judge bench comprising Patrick Kiage, Mohamed Warsame, and Agnes Murgor is handling the appeal that arose from a suit by three Mombasa residents.

William Ramogi, Gerald Kiti and Asha Omar last July sort a declaration on the governance, management, and decision making at all governance levels where there is a natural resource involved. They sued the Attorney General, the Cabinet Secretary of Transport and Infrastructure, Kenya Ports Authority, and Kenya Railways Corporation.

The county government of Mombasa, Muslims for Human Rights (Muhuri) and activist Maina Kiai are interested parties. The petition challenges the agreement that led to the freight and cargo handling activities being transferred from Mombasa to the Nairobi Inland Container Depot.

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In August 2018, Chief Justice David Maraga constituted a five-judge bench comprising of Justices Lydia Achode, Joel Ngugi, Lady Pauline Nyamweya, Eric Ogola, and Antony Mrima. The AG challenged the jurisdiction of the bench, claiming it was handling a matter that ought to be before the Intergovernmental Dispute Tribunal.

In November, the five-judge bench made a ruling that allowed it to hear the matter. KPA and KRC appealed. A three-judge bench of Judges Alnashir Visram, Wanjiru Karanja’ and Martha Koome was formed to hear the appeal afresh.

In April this year, however, Visram and Karanja recused after an application by the Mombasa county and Muhuri. The two asked CJ Maraga to constitute another bench. This month, Maraga appointed Kiage, Warsame, and Murgor. During the sitting in Mombasa on Monday, the petitioners and interested parties asked the court to dismiss the appeal.

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Caroline Oduor, who appeared for the petitioners said Mombasa residents had been denied an opportunity to live a dignified life after the job losses. “The case is a matter of life and death. The take-or-pay agreement undermines people rights to a source of livelihood,” she said.

Advocate Willis Otieno of Muhuri and Kiai said fundamental rights of Mombasa residents had been infringed by the agreement between KPA and KRC. The deal forced KPA to assign a set volume of containers via Standard Gauge Railway.

Githu Muigai, who represents KPA maintained the High Court – where the petition was first filed – had no jurisdiction to hear the case.

Otieno said the agreement led to the closure of Container Freight Stations. Most of the cargo was being cleared from Embakasi ICD. Otieno said the case cannot be handled by the Intergovernmental Dispute Tribunal as asked by KPA and KRC. “Intergovernmental Relations Act has no rights of standing to an individual. It deals with a dispute between two levels of government,” he said.

Mombasa county attorney Pheroze Nowrojee said KPA and KRC did not lay any ground to undo the ruling by the five-judge bench. One of the bench’s arguments was that the petition raised a fundamental question of residents’ rights. “A government cannot ensure employment. The least it can do is to protect it,” Nowrojee said.

Githu Muigai, who represents KPA maintained the High Court – where the petition was first filed – had no jurisdiction to hear the case. “Every litigant must exhaust the remedy provided by the law before approaching superior tribunal,” he said.

Wachira Guyo for the office of Attorney General said the take-or-pay can still be renegotiated outside the court.

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