What you need to know:
- The AG wants the petitions suspended, pending hearing of his petition at the Supreme Court.
- The Court of Appeal had dismissed an appeal by the AG and Kenya Ports Authority.
The Attorney-General has moved to the Supreme Court seeking to temporarily stop the hearing of two petitions challenging a government directive to have all imported cargo destined to Nairobi and beyond transported by the Standard Gauge Railway.
AG Kihara Kariuki wants the petitions suspended, pending hearing of his petition at the Supreme Court.
The two petitions, filed by three Mombasa residents and the Kenya Transporters Association (KTA), also seek to have the Mombasa County government manage port operations.
Through litigation counsel Nguyo Wachira, the AG, in his application filed under certificate of urgency, says he has an arguable appeal with high chances of success at the Supreme Court.
“The arguability of the appeal is based on the doctrine of exhaustion of remedies in this dispute where both inter-governmental disputes and fundamental human rights dispute may co-exist and relate,” argues the AG.
May be rendered nugatory
He further argues that if the hearing of the two consolidated petitions proceeds on September 22 to 24 before the High Court, his appeal at the Supreme Court may be rendered nugatory.
The AG says that the High Court may have made an error when it made a finding that there were no intergovernmental issues in the petition by the Mombasa residents.
“The trial judges may have overlooked various aspects of inter-governmental disputes that were well manifest in the petition thus the petition of appeal at the Supreme Court is arguable,” the application by the AG states in part.
The AG says his petition of appeal at the Supreme Court is hinged on the prayer that the parties to the petition should find an alternative dispute forum to settle the matter.
“Litigation concerning an identified service to be provided to the public and citizens endangers the ability of the involved governments to provide that service,” argues the AG in his appeal.
The AG wants the apex court in the country to allow his appeal and have the petition by the residents at the High Court dismissed or, in the alternative, it be referred for alternative dispute resolution.
The Court of Appeal had dismissed an appeal by the AG and Kenya Ports Authority in which they argued that the dispute was intergovernmental and that the High Court did not have jurisdiction to hear the case.
Last month, the High Court consolidated the petitions by the residents and that of KTA.
The five-judge Bench of justices Lydia Achode, Eric Ogola, Anthony Mrima, Joel Ngugi and Pauline Nyamweya said the two petitions shall be heard and determined together and directed that they be heard virtually.
The residents want an order that port services be assigned to the national and county governments and particularly that the management and operations of the port is a function of the county government of Mombasa.
According to the petitioners, KPA and Kenya Railways entered into an agreement which obligates them to ensure a set volume of cargo is transported via SGR to Embakasi Inland Container Depot.
“As a result, the freight and cargo handling activities which include the container freight, clearing and forwarding, warehousing and cargo trucking have been transferred from Mombasa to KPA’s Embakasi ICD,” said the petitioners.
The petitioners are also seeking a declaration that the agreement between KPA and Kenya Railways threatens the socio economic rights of the residents of Mombasa.
On its part, KTA is seeking for a declaration that importers of cargo at the port of Mombasa have a right to choose the mode of transportation of their cargo to a destination of their choice.