Last updated 10 May 2021
A court in Mombasa has denied Kenya Ports Authority’s request to delay implementation of an order abolishing two directives requiring all Mombasa Port cargo to be transported via the Standard Gauge Railway.
The case includes multiple Okoa Mombasa members and affiliates amongst the petitioners and interested parties.
Nullification of the directives would restore importers’ right to choose how they transport cargo – by road or rail. The current rules require all cargo to go by SGR, which costs significantly more than road transport. The directives are part of the government’s plan to prop up the cash-hemorrhaging SGR, which was built with a USD 3.2 billion loan from China and continues to lose money.
The High Court’s latest ruling on 5 February 2021 ruling reaffirmed its decision in November 2020 which found the directives unconstitutional due to lack of public participation and non-compliance with fair administrative procedures. Implementation of that order was delayed for 180 days, however, to give KPA an opportunity to “regularize” the situation – namely by conducting a public participation exercise.
But instead of conducting the public participation exercise, KPA announced it would appeal. It then asked the court to further suspend implementation of the order until its appeal could be fully heard and decided.
On 5 February, the court said that its original ruling would stand:
In our view the stay of 180 days which was granted was adequate to enable the Applicant, if it wished to comply with the said orders, to do so. However, the Applicant has a constitutional right of appeal, and it has indeed filed a Notice of Appeal in the Court of Appeal. The Applicant has not placed anything before this court about what it has already done with the 90 days which have since lapsed.
KPA still has the option of applying to the Court of Appeal for a delay in implementing the judgment. If they do not – or if that application is denied – the High Court’s order nullifying the SGR cargo directives would take effect on or about 5 May 2021.
Update 18 Feb 2021: As expected, KPA has filed a motion with the Court of Appeal to certify its appeal as urgent. If granted, the appeal could be heard before the lower court’s 180-day stay expires. Read the motion and certificate in support of urgency here.
Update 10 May 2021: The 180-day deadline expired on 7 May, but the high court granted a last-minute stay for the appeals court to decide on May 10 whether to expedite KPA’s appeal.
Unfortunately, the appeals court hearing on 10 May was canceled at the last minute for unclear reasons. The court sent lawyers a cryptic message saying the case was taken off the docket “due to unavoidable circumstances.”
There has been no news on rescheduling the hearing as of yet. Nor has either court indicated whether the order nullifying the SGR cargo directives should take effect.
Update 31 May 2021: The High Court has again stayed impelmentation of their order suspending the SGR cargo directive until the next hearing, which is scheduled to take place on 22 June 2021.
Update 22 June 2021: The Mombasa High Court has granted KPA an interim order allowing it to continue enforcing the SGR cargo directives until 30 September 2021, when it will rule on the authority’s application of stay.
KPA wants High Court orders set aside until its appeal is heard and determined.
Update 30 September 2021: The Mombasa High Court dismissed Kenya Ports Authority’s application to stay enforcement of the court’s Nov. 2020 judgment (which ruled that the SGR cargo directives were illegal).
However, the Court also issued an interim order staying its decision until 10 Nov 2021. During that time, the SGR cargo directives will stay in effect. Moreover, we expect that the Court of Appeal will rule on the case before 10 Nov. 2021, either upholding over overturning the High Court’s 2020 judgment. If it doesn’t, the High Court’s judgment would take effect on 10 Nov 2021.