Transporters want mandatory use of railway rule quashed

Transporters want Cabinet Secretary James Macharia, the Kenya Ports Authority and the Kenya Railways restrained from forcing cargo owners to use the Standard Gauge Railway (SGR) or the old railway.

Three weeks ago, Mr Macharia ordered that containerised cargo destined for neighbouring countries be transported via the SGR to the Naivasha Inland Container Depot from the Port of Mombasa for clearance.

Now the Kenya Transporters Association (KTA) wants the order suspended pending hearing and determination of their application, which also seeks to have the case heard virtually before a bench appointed to preside over a similar case.

A five-judge bench was appointed to preside over a case in which some Mombasa residents are seeking to have the operations and management of the Kenya Ports Authority (KPA) handed over to the county government. The KTA was set to be enjoined in the case.

Through lawyer Gikandi Ngibuini, the KTA argues that Mr Macharia, the KPA and the Kenya Railways issued the directions yet cases touching on the matter were in court.

“These directives have been made when the (three) petitions are pending, thus they (directives) are sub judice,” said Mr Ngibuini in the application filed at the High Court in Mombasa. He added that the directives have the effect of further crippling the transport business.

The association argues that the Covid-19 pandemic has affected economic activities to the extent that transporters cannot survive a situation where transporting containerised cargo outside the country is taken away from them.

The KTA also argues that some owners of the containers have protested against the directive, which has seen the respondents appear to give in. It further argues that it is possible for the hearing of the case to be conducted virtually irrespective of where the five judges are stationed.

The transporters are seeking a declaration that cargo importers have a right to choose the mode of transport to use.

They say the directive issued by the KPA and the Kenya Revenue Authority (KRA) is in breach of the public trust bestowed upon them by the residents of Mombasa and is in violation of the Constitution.

According to the association, instead of the government improving the consumers’ awareness about the use of the SGR, it has curtailed the consumers’ right to make their own choices on the mode of transport suitable for them.

Further, it says the directive issued by the KPA and the KRA in favour of the Kenya Railways was not subjected to any type of public participation.

“The government behaves as though SGR is the only infrastructure that has ever been invested in and forgets that the road infrastructure and transportation companies have been a great source of revenue,” the association says in its petition.

The transporters also say the government seems not to realise that no business is more important than the others and that all businesses are important in realisation of Article 43 of the Constitution.

Being a key player in the transportation industry, the association says it ought to have been given a chance to participate in the decision-making process before the directive was issued.

The transporters want an order issued quashing the KPA and KRA directive and a declaration that Mr Macharia acted unlawfully and contrary to the Constitution.

They also want an order directing the Competition Authority of Kenya to take immediate action to “demolish” the monopoly being established by the order forcing all transporters to use the SGR.

The transporters’ case comes as the High Court in Nairobi on Thursday temporarily suspended the government’s directive on imported goods destined for three neighbouring landlocked countries.

Lady Justice Pauline Nyamweya issued the temporary order sought by activist Okiya Omtatah.