The Kenya Ports Authority (KPA) and the County Government of Mombasa have once again been sued over garbage collection from ships docking at the port.
A businesswoman is challenging the Mombasa County Solid Waste Management (Amendment) Act, 2023 saying it violates the Constitution and international conventions relating to prevention of pollution from ships.
Ms Ruwaida Hussein wants a declaration that Section 42A of the Act is inconsistent with the Constitution thus void and invalid and contravenes the International Convention for Prevention of Pollution from Ships (Marpol), to which Kenya is a signatory.
She says that the convention addresses pollution from ships by oil, noxious liquid substances carried in bulk, harmful substances carried by sea in packaged form, sewage, garbage, and prevention of air pollution from ships, both accidental and those occurring during routine operations.
Ms Hussein says that pursuant to the enactment of the Act, KPA issued an undated notice purporting to levy and collect charges on behalf of the county government from ships and docking at the port of Mombasa.
“The petitioner is aggrieved by the enactment of Section 42 A of the Act and subsequent action of KPA to levy or collect charges by issuing illegal and ambiguous instruments thus sabotaging Kenya’s international obligations,” part of the case documents state.
She wants an order issued quashing the undated customer notice by KPA and by the same writ, it is subsequently quashed to the extent of levying charges on marine vessels on behalf of the devolved unit.
In her petition at the High Court in Mombasa, she has sued KPA, the county government, the County Assembly of Mombasa, the Cabinet Secretary for Mining, Blue Economy and Maritime Affairs, and the Attorney General.
Kenya Maritime Authority (KMA) and the National Environment and Management Authority (Nema) have been named as interested parties in the suit.
Initially, an official of the Kenya Ships Contractors Association had sued the county government of Mombasa over its decision to revoke its members’ garbage collection licenses from inside ships that dock at the port of Mombasa.
In that case, Justice Gregory Mutai of the High Court in Mombasa ordered that the status quo, prior to the County government of Mombasa’s alleged decision to revoke licenses of the garbage collectors from inside ships, remains as the case continues.
In her submissions, Ms Hussein argues that the Act purports to confer the county government of Mombasa with jurisdiction to levy fees without enacting a framework for the collection and management of waste as envisaged by Maprol.
She further says that governments or parties are obligated to provide sufficient reception facilities for garbage disposal at terminals without causing unnecessary delays to vessels under Maprol.
“The first respondent (KPA) has failed in its statutory duty to provide adequate reception facilities and enact procedures and substantive requirements for licensing other providers of reception facilities,” argues Ms Hussein.
“The county government does not operate a port waste reception facility and does not have any designated as such by KPA. Additionally, it does not operate a certified port waste reception facility or levy any charges,” argues the petitioner.
Ms Hussein also argues that by KPA allowing the county government to operate without being licensed as a reception facilities operator abrogates the principles prohibiting discrimination, policies, and practices that discriminatory effects irrespective of the intent.
She further argues that the Act shall also have negative effects on the Basel Convention on Control of Transboundary Movements of Hazardous Wastes and their Disposal on the basis that the “payment by ships/vessels despite no litter services” may encourage vessels to dump garbage in the country.
“The vessels shall dump their waste in the jurisdiction where they are mandatorily required under the principle established in the Act “to pay despite no service” even in the absences of services, making the Kenyan coast a dumping ground for transboundary waste,” argues the petitioner.
Ms Hussein argues that the county assembly of Mombasa has illegally and without adequate consultations violated the national policy on waste management and constitutional principles of legislation and the country’s obligations under the Prevention of Marine Pollution by Dumping of Wastes and other matters by enacting the Act.
The petitioner also argues that the CS Mining, Blue Economy, and Maritime Affairs ought to ensure that no domestic law interferes with international treaties saying the state is responsible for any violation of international law.
She also wants a declaration that the Act is invalid on account of lack of public consultation and a flawed law-making process.
The petitioner also wants a declaration that the respondents are in violation of Kenya's international obligations towards Marpol.
