The High Court has dismissed a case by the Road Hauliers Association of Kenya (Rhak) seeking to quash a decision by the Mombasa County Government to appoint the Kenya Ports Authority (KPA) as its parking fee collection agent within the port.
Justice Olga Sewe ruled that Rhak failed to demonstrate the illegality of a notice issued by KPA seeking to implement the deal with the devolved unit.
“The applicant (Rhak) failed to demonstrate illegality, irrationality, or procedural impropriety taken by the respondents leading to the issuance of the impugned notice,” ruled Justice Sewe.
Rhak sought an order to quash the decision of the county government and the implementation notice by KPA contained in the customer notice on parking fee collection for heavy and commercial vehicles in Mombasa, which commenced on May 15 designating KPA as a levy collecting agent on behalf of the devolved unit.
Justice Sewe noted that no provision of the law was brought to the attention of the court that the notice ought to have been published in the Kenya Gazette or in two newspapers with nationwide circulation before its implementation.
She further ruled that the notice was premised on the Mombasa County Finance Act which was duly gazetted and for purposes of implementation, it cannot be argued that meetings held by the respondents were deficient.
The judge noted there was no proof that the notice purported to override already existing statutes governing the port facility, customs zone, container freight services, and warehouse.
“To the contrary, the first respondent (county government) presented proof to demonstrate that the levies are anchored on the Mombasa County Finance Act 2024,” said Justice Sewe.
Rhak had also sought an order to compel the respondents to rescind their decision contained in the notice and provide within 15 days of delivery of the judgment, books of account for the irregular collection of parking fees in order to refund to affected parties.
It argued that the notice purported to override already existing statutes governing the port facility, customs zone, operating areas, container freight services, and warehouses.
Rhak also argued that the unlawful levy and penalties were imposed without consideration of any known or customary laws within the country.
The association also said that the decision by the respondents usurped the role of the Kenya Revenue Authority’s commissioner of customs whose responsibility is to declare charges at border posts and port areas.
It argued that the notice whose implementation commenced on May 15 was made without the input, participation, and consultation with the association and members of the public.
Rhak argued that the implementation of the notice was oppressive and in contravention of what they legitimately expected, to continue paying the levy and penalties as they have been paying throughout the year or adequate notice to enable them to prepare and explain to their customers.
The county government argued that the charge of parking fees has been non-existent since pre-devolution and was not new.
It further told the court that it has been losing revenue over the years from non-payment of parking fees by heavy and commercial vehicles yet they (vehicles) strain the road infrastructure within the county due to the immense load handled by the trucks.
The devolved unit also told the court that it is its responsibility to repair the roads within the county in addition to the provision of other services such as street lighting and traffic marshalling thus depending on its own revenue sources.
The county government said that it raised parking fees upon enactment of the County Finance Act and that in the course of the legislation, Rhak had an opportunity to participate and raise their concerns.
It also argued that it enlisted the support of KPA to ensure a more efficient system for the collection of parking charges.
