Dec 9, 2021

Mawazo Writing Africa

Writing about the main

Court of Appeal suspends orders stopping SGR cargo transport directive

The court suspended the orders pending a hearing and a decision on an appeal in which the revocation of the guidelines was challenged by a bench of five judges in the High Court.

The decision is a great relief for the government, as the transporters would have been able to move their imported cargo freely without a suspension, whichever means of transport they prefer.

The Kenya Ports Authority (KPA) had filed a motion with the appeals court to stay the orders pending their appeal hearing. The state agency argued that the guidelines were designed to effect the take-or-pay arrangement, which is a repayment of the loan for the construction of the SGR.

According to the take-and-pay agreement, KPA undertook to hand over a certain freight and / or other freight volume to Kenya Railways after SGR operations to the KPA Inland Container Depot (ICD) in Embakasi began.

repayment obligations

KPA had also argued before the appellate court that it was impossible with the annulment order to meet repayment obligations that lead to default in payment lead.

The Port Authority also informed the court that public finances would be used to comply with the orders issued, and they were concerned about whether it would reclaim all funds paid out, should the appointment be successful Be greich.

KPA also informed the court that the disputes on appeal proceedings are complex and of considerable public concern.

Appellate Judges Asike Makhandia, Hellen Omondi and Mumbi Ngugi have ruled that their review of the application by the KPA, the reasoning and supporting affidavit, the issue of violation of the Constitution and fair administrative process, should, in their view, be a review Earned by the court.

“We believe and note that the claimant (KPA) demonstrated that there is indeed a disputed appeal and that their appeal would lapse in the event that the application fails, ”ruled the judges.

They also added that the defendants had not shown whether they had sources that were used to fulfill the orders refund.

In November last year, the High Court overturned the government’s orders and suspended them for 180 days.

Fix errors

The suspension for 180 days was to allow the government to correct the shortcomings identified by the High Court, including the implementation of public participation in the guidelines.

The five judges of the High Court consisted of Judges Lydia Achode, Eric Ogola, Anthony Mrima, Joel Ngugi and Pauline Nyamweya – who has since moved to the Court of Appeal.

They decided that the guidelines are against the constitution as they have not been subjected to public participation.

The five judges further ruled that the government guidelines regarding the requirement to transport cargo via SGR to let the rights of the Kenya Transporters Association (KTA) and other inter food carriers, so KPA and Kenya Railways were required to submit them to public participation.

Their decision was the result of two separate petitions that were merged. submitted by Mr. William Ramogi, Ms. Asha Omar and Mr. Gerald Kiti and KTA.