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Appeal’s court to rule if case over Mombasa control of KPA will proceed

[Appeal court judges Patrick Kiage, Mohammed Warsame and Agnes murgor during the hearing of the petition. Photo/Elvis Kenga].

The Court of Appeal will on September 26, this year make a judgment whether a petition seeking Mombasa county to run the port, will continue.

A three-judge bench comprising of Patrick Kiage, Mohamed Warsame, and Agnes Murgor is handling the appeal that arose from a suit by three Mombasa residents.

In July last year, William Ramogi, Gerald Kiti and Asha Omar sort a declaration on the governance, management, and decision making at all governance levels where there is a natural resource involved.

They sued the Attorney General, Infrastructure cabinet Secretary, Kenya Ports Authority, and Kenya Railways Corporation.

The county government of Mombasa, Muslims for Human Rights- MUHURI and activist Maina Kiai are interested parties.

The freight and cargo handling activities were transferred from Mombasa to Embakasi Inland Container Depot, a move that is being questioned by the petition.

In August 2018, Chief Justice David Maraga constituted a five-judge bench comprising of Justices Lydia Achode, Joel Ngugi, Lady Pauline Nyamweya, Eric Ogola, and Antony Mrima.

KPA challenged the jurisdiction of the bench, claiming it was handling a matter that ought to be before the Intergovernmental Dispute Tribunal.

In November, the bench ruled it was mandated to hear the matter.

KPA and KRC appealed.

A three-judge bench of Judges Alnashir Visram, Wanjiru Karanja’ and Martha Koome was formed to hear the appeal.

In April this year, however, Visram and Karanja recused after an application by the Mombasa county and MUHURI.

The two asked CJ Maraga to constitute another bench.

Kiage, Warsame, and Murgor were appointed this month to take over.

[Lawyer Willis Otieno representing MUHURI and Activist Maina Kiai. Photo/ Elvis Kenga].

During the sitting on Monday in Mombasa, the petitioners and interested parties asked the court to dismiss the appeal.

Mombasa residents cannot live a dignified life after job losses, Caroline Oduor, appearing for the petitioners, said.

She said the case was a matter of life and death.

The take-or-pay agreement between KPA and KRC infringed on locals’ fundamental rights; Advocate Willis Otieno who represents MUHURI and Kiai told the court.

The KPA-KRC deal forced the port to assign a set volume of containers via Standard Gauge Railway.

As a result, most Container Freight Stations in Mombasa were shut down while the Embakasi ICD took the bulk of the cargos.

Intergovernmental Dispute Tribunal cannot handle the case according to Otieno because the Intergovernmental Relations Act has no rights of standing to an individual.

It only deals with a dispute between two levels of government.

Mombasa county attorney Pheroze Nowrjee said KPA and KRC did not table any grounds to remove the ruling by the five-judge bench. One of the bench’s arguments was that the petition raised a fundamental question of residents’ rights.