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KPA wants case on use of SGR to move cargo heard urgently

By Joackim Bwana | April 27th 2021

A security officer keeps guard next to Standard Gauge Railway (SGR) line locomotive engines at the KPA's SGR marshaling yard at the port of Mombasa. [File, Standard]

Kenya Ports Authority (KPA) is racing against time to have orders barring it from solely transporting cargo using the Standard Gauge Railway suspended.

In a letter to the Court of Appeal, KPA is seeking to have its appeal against the order suspending movement of cargo through SGR from May 7 expedited before the date that was set by a three-judge bench of the High Court commences.

The High Court had on March 15, 2019 issued orders stopping KPA from solely transporting all containers from the port through the SGR.

KPA filed an appeal seeking to suspend the orders, but the case is yet to be given a hearing date. The High Court orders will take effect on May 7.

In the April 19 letter to President of the Court of Appeal, Justice William Ouko, KPA senior counsel Mohamed Muigai said that if the orders take effect, they will have debilitating effects on the port and the public at large.

On March 15 and August 3, 2019, KPA and Kenya Railway Corporation issued the directive that all containers from the port should be transported via SGR.

The directive sparked an uproar from the haulage sector with truck owners’ umbrella body, the Kenya Transporters Union (KTU) and three Mombasa residents, filing a petition to quash the directive.

Quashed order

In November last year, High Court judges Eric Ogola, Anthony Mrima, Joel Ngugi, Pauline Nyamweya and Lydia Ochode quashed the order, terming it "constitutionally infirm".

And on February 18 this year, the five judges sitting in Mombasa declined to lift its orders stopping SGR from enjoying the monopoly of transporting all containers from the port of Mombasa.

In dismissing KPA’s stay application, the five judges said their hands were tied after they granted a functional stay of execution for 180 days that temporarily suspended the orders.

The 180 days was to afford KPA an opportunity to regularise or rectify the situation by allowing the truck owners to also compete with SGR for the business opportunity.

“Given the potential of the order above to disrupt the orderly operations of the port and the operationalisation of the National Transport Policy, the effect of that order is hereby suspended for one hundred and eighty (180) days to afford the Respondents an opportunity to regularize the situation,” read the judgment them.

KPA had filed a case to have the orders suspending the directives stayed pending an appeal.

In the letter, KPA said that they were yet to be allocated a hearing date despite filing a notice of motion on February 12, asking the court to suspend the judgment and decree by the five-judge bench.

Muigai said that the motion was certified urgent and directions for the filing of submissions issued on February 17. He said given the short time now remaining, KPA requests that counsel representing the parties be allowed to address the empanelled bench on a temporary stay as it prepares its ruling.


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