Judge Eric Ogola said the petition raised substantial questions of law which need odd numbers of judges to hear the case.
The judge further said the matters raised in the petition are weighty and of great public interest.
Petitioners want an order that the national government only regulates the port, leaving the county to manage its operations.
The High Court has referred a petition seeking to have the Port of Mombasa managed by the county government to the Chief Justice David Maraga to form a bench.
Judge Eric Ogola said the petition raised substantial questions of law which need odd numbers of judges to hear the case.
The judge further said the matters raised in the petition are weighty and of great public interest.
Judge Ogola said he was in agreement with petitioners that the case is of public interest hence the need to have more than three judges to hear it.
The petitioners, William Ramogi, Asha Omar and Gerald Kiti, through their lawyer Nyambura Kihoro, 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,” said Ms Kihoro.
The petitioners have sued the Attorney-General, the Cabinet Secretary in charge of Transport and Infrastructure, Kenya Ports Authority and the Kenya Railways Corporation.
None of the parties opposed 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.
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 that 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 an intense fight for the control of the port with the Kenya Ports Authority recording a high turnover of chief executives.
