Case challenging transfer of port services to Nairobi to proceed

A Court of Appeal sitting in Mombasa on Thursday quashed an appeal by Kenya Ports Authority and Kenya Railways Corporation seeking to block a case challenging the transfer of port services from Mombasa to Nairobi.

The petition challenged the agreement between KPA and KRC that led to the freight and cargo handling services to be transferred from Mombasa to the Nairobi Inland Container Depot

In the case, filed by three Mombasa residents; William Ramogi, Gerald Kiti and Asha Omar last year July, the petitioners also asked the High Court to make a declaration that Mombasa County should be allowed to run the port of Mombasa.

They sued the Attorney General, the Cabinet Secretary of Transport and Infrastructure, KPA and KRC.

In the matter, Mombasa County government and Muslims for Human Rights (Muhuri) are listed as interested parties.

On Thursday, Judge Agnes Murgor, who was part of the three-judge bench that heard the matter, said the petition was properly before a five-judge bench in the High Court.

She gave a nod to Justices Lydia Achode, Joel Ngugi, Pauline Nyamweya, Eric Ogola, and Antony Mrima to proceed with the trial.

In August 2018, Chief Justice David Maraga had constituted the five-judge bench to hear the case.

However, the Attorney General raised an issue that the High Court lacks jurisdiction to hear and make a decision on the matter, adding that the matter should be heard by the Inter-governmental Dispute Tribunal.

In November, however, the five-judge bench made a ruling that allowed it to hear the matter.

KPA and KRC appealed and a three-judge bench of Judges Alnashir Visram, Wanjiru Karanja’ and Martha Koome was formed to hear the appeal.

However, in April this year, Visram and Karanja recused from the matter after an application by the Mombasa County government and Muhuri.

Maraga had to constitute another bench of Judges Patrick Kiage, Mohamed Warsame, and Agnes Murgor to hear the appeal.

On Thursday, Murgor read the judgment on behalf of the two other judges; Kiage and Warsame.

Murgor said the dispute is not intergovernmental in nature and concerns on the petition, including job losses and economic sabotage, have never been determined.