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High Court suspends directive requiring all cargo to be transported through SGR

The High Court Friday suspended for 180 days a government directive requiring that all cargo imported through the Port of Mombasa be transported exclusively through the Standard Gauge Railway (SGR).
A five-judge bench sitting at the Malindi law courts in Kilifi County ruled that the duration would enable the government to regularize 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 regularize it,” they said.

Justices Anthony Murima, Pauline Nyamweya, Lydia Achode, Prof. Joel Ngugi and Eric Ogolla when they delivered their judgment suspending for 180 days the government’s directive that all cargo from the port of Mombasa be transported exclusively through the Standard Gauge Railway.

They said that the reasoning by the KPA and KRC that no public participation was required because the directive was a product of internal operations and authorized under the parent statute establishing the two entities was incorrect.
“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 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 three Mombasa residents who wanted the operations of the Port of Mombasa to be managed by the Mombasa 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.
“We therefore find that the fifth respondent did not ignore the issues raised by the fourth petitioner and ought not to have been sued in these proceedings,” the judges said.
The petitioners had sought a declaration that an agreement entered between the KPA and the KRC obligating them to ensure a set volume of cargo is transported via the SGR to the Embakasi Inland Container Depot threatened the socio-economic rights of the residents of Mombasa.
The Kenya Transport Association further sought a declaration that importers of cargo at the port have a right to choose the mode of transport to their destinations of choice.

By Emmanuel Masha

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