Court of Appeal (CoA) judges Stephen Kairu, Mbogholi Msagha and Pauline Nyamweya ruled that the firm had not made out a case to enable the court to allow it to proceed with the appeal.
The ruling means that KPA will now proceed to challenge the Sh715 million that an arbitrator had awarded Memphis Ltd.
While it is a win for KPA, the legality of the award will be determined by the Environment and Land Court (ELC), where the government agency has challenged the award.
A private firm has suffered a blow after failing to block Kenya Ports Authority (KPA) from appealing against an award of Sh715 million.
Court of Appeal (CoA) judges Stephen Kairu, Mbogholi Msagha and Pauline Nyamweya ruled that the firm had not made out a case to enable the court to allow it to proceed with the appeal.
“To allow the application would in effect result in piecemeal adjudication and unduly protract the matter at the expense of substantive and expeditious disposal of the matter,” said the judges.
The ruling means that KPA will now proceed to challenge the Sh715 million that an arbitrator had awarded Memphis Ltd.
While it is a win for KPA, the legality of the award will be determined by the Environment and Land Court (ELC), where the government agency has challenged the award.
Memphis Ltd was in 2020 awarded Sh715 million by an arbitrator but KPA preferred an appeal against this award.
The company then made a request for the appeal filed by KPA to be struck out, noting that the award by the arbitrator did not leave any room for an appeal.
ELC Judge Sila Munyao who heard the firm’s application, to strike out an appeal by KPA, dismissed it prompting the company to move to the CoA, where it also lost.
The ruling by CoA now paves the way for the KPA to prosecute the appeal to its logical conclusion.
The award arose from a dispute regarding a lease agreement between KPA and Memphis Ltd, in which the company was to operate in the seven acres piece of land belonging to the government agency for 33 years.
The lease user was for the development of a CFS light industrial purpose go down and offices. It also provided that the firm was to develop the premises within a period of two years of taking possession.
However, by 2017, the firm had not developed the property as was provided for in the lease agreement, prompting KPA to enter the property to construct a public road connecting Mombasa port to Kipevu.
Memphis then sued KPA for trespass and loss of interest over the property. The arbitrator then awarded the firm the money.
Records show the firm demanded a compensation of Sh1.14 billion, but the arbitrator awarded Sh715million.
KPA argues that the arbitrator erred in law by making a determination on the question of whether the lease issued to the company was a normal one or a conveyance when the same was neither pleaded nor canvassed by either of the parties in the case.
“The arbitrator erred in law in holding that the lease amounted to a conveyance or sale of the suit property to Memphis Ltd with a reversionary interest to KPA in breach of the rules of natural justice,” said Mr Mohammed Muigai.
