Court declines to bar M-Pesa payments for Likoni ferry crossing

Kenya Ferry Services got a reprieve after a court declined to grant interim orders restraining it from imposing payment for toll charges through the exclusive use of M-Pesa at the Likoni Channel ferry crossing.

Muslims for Human Rights (Muhuri) had sought the orders pending hearing and determination of its petition challenging the M-Pesa mode of payment.

Justice Eric Ogola ruled that Muhuri had not substantiated the claims well and did not present evidence to court demonstrating losses and damage it was likely to suffer.

“The application did not set out clearly the rights that are being violated and the manner in which they are being violated,” said Justice Ogola.

He noted though the orders made in the application may substantially reflect possible arguments in the petition, but found that the application lacked merit.

The KFS had defended the rollout of M-Pesa payments at the ferry crossing, saying it was meant to implement government guidelines encouraging the use of cashless payments.

The KFS said the government issued the guidelines to mitigate the spread of the Covid 19 pandemic. It further said for the transport, logistics and cargo sectors, the guidelines issued on June 2 2020 were to reduce the circulation of hard currency and encourage the use of alternative payments such as mobile money.

The agency said in January 2020, it procured a cashless revenue collection system and awarded the tenders to Safaricom and the National Bank of Kenya in May.

“Two contracts-one for the provision of mobile payment system was entered into with Safaricom Ltd and the provision of cashless revenue collection integrated system solution was entered into with National Bank Ltd after the procurement processes,” said KFS managing director Bakari Gowa in his affidavit.

According to the KFS, to support the roll-out of the M-Pesa payment system, awareness campaigns were conducted.

“Having been awarded a tender, now performed in accordance with contractual terms, the operations of the contracts entered into pursuant to the provisions of the Public Procurement and Asset Disposal Act cannot be discriminatory as alleged,” said Mr Gowa.

He said an interoperability component had been built into the payment system through the use of agents who take cash and other means of payment and ensure it is transmitted to KFS in the M-Pesa equivalent.

“No one is turned away from accessing ferry services if they do not have M-Pesa as alleged,” said Mr Gowa, adding that there is nothing illegal about the use of the system.

Muhuri has sued the KFS, Transport Cabinet secretary and the Attorney General. It wants the use of M-Pesa payments declared illegal, null and void.