Bench to hear Mombasa port transfer petition

Chief Justice David Maraga is set to constitute a five-judge Bench to hear a petition seeking the transfer of port operations to Mombasa County.

High Court Judge Eric Ogola said the petition seeking handover of the management from the national government had raised substantial questions of law which need an odd number of judges to canvass.

The petitioners, William Ramogi, Asha Omar and Gerald Kiti say the case is important for the regulation, management and operations at the port of Mombasa.

“The petition is complex in nature and raises matters that are of public interest and of national importance,” they said through their lawyer Nyambura Kihoro,

The petitioners have sued the Attorney-General, the Cabinet Secretary in charge of Transport and Infrastructure, Kenya Ports Authority, and Kenya Railways Corporation.

All of them did not oppose the application to have the CJ constitute a five-judge Bench.

The petitioners want an order that the national government only regulates the port, leaving the county to manage its operations.

Justice Ogola said he was in agreement with the petitioners that the petition is of public interest hence the balance tilts to having uneven number of judges to hear it.

READ: Why Dar, Djibouti harbours are a threat to Mombasa port

They contend that the county government, under the Constitution, is vested with powers to manage local transport, including harbours, but excluding the regulation of international and national shipping.

They argue that maritime navigation, which is reserved for the national government, ends once a ship docks at the port.

“It is a violation of the Constitution for the national government not to have devolved the function of managing and operation of harbours in relation to transport to the county government,” the three argue in their petition.

Major ports across the world, they say, are owned and controlled by port city municipalities or states in which they are located. According to the petitioners, KPA and KR have entered into an agreement which obligates them to ensure a set volume of cargo is transported via the Standard Gauge Railway (SGR) to the Embakasi Inland Container Depot (ICD).

“As a result, the freight and the cargo handling activities … have been transferred from Mombasa to KPA’s Embakasi ICD,” they say.

There has been intense fight for the control of the port of Mombasa with the Kenya Ports Authority recording a high turnover of chief executives.