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Transporters Fault Court Ruling on Compulsory Use of SGR

Transporters Fault Court Ruling on Compulsory Use of SGR

October 18, 2021
October 15, 2021
Trucks along the Bungoma-Malaba Road in western Kenya. Transporters have faulted a directive by the Kenyan court extending the orders on mandatory use of SGR in transporting all the cargo passing through Nairobi. Photo: KTA.

Kenya Transporters Association (KTA) has faulted a directive by the court extending orders that require all cargo from the Port of Mombasa to be exclusively transported by the Standard Gauge Railway (SGR) to Nairobi Inland Container Depot.

The move, which comes as a reprieve to Kenya Ports Authority (KPA), following the extension of the interim orders suspending an initial decision that quashed the directive that had earlier been issued by the government requiring all cargo to be transported by SGR, has not been received well by transporters.

A five-judge bench of the High Court has extended the orders, saying they will lapse on November 10 when a rulling is supposed to be made.

However, the court dismissed KPA’s application wanting the orders suspended for 90 days.

KTA opposed the extension of the interim orders at the High Court saying it had no jurisdiction as it was functus officio (its mandate in the case had lapsed).

KTA argues that traders should be allowed to use the means that suit them other than being forced to ferry their goods by SGR.

Had the court not extended the suspension order, transporters would have been free to transport their cargo from the port of Mombasa in whichever mode they wished.

The decision to quash the directives on compulsory use was to take effect on May 7 but KPA rushed to court and had it suspended until May 10 when their application at the Court of Appeal was to be heard.

However, the Court of Appeal informed the parties that the hearing date had been set aside and no alternative date had been given prompting KPA to move back to the High Court to have the orders to quash the directives suspended.

The ruling at the Court of Appeal, which seeks suspension of the orders quashing the directives pending the hearing of an appeal will be delivered on November 5.

KPA was apprehensive that if the orders to quash the directives were not suspended, they would have disrupted their operations resulting in substantial loss.

“The directives support the National Government’s wider transport policy, their nullification will disrupt the implementation of the transport policy starting from the port of Mombasa all the way to the Inland Container Depot in Nairobi and Naivasha,” argued KPA in its application.

KPA said the directives are meant to operationalise the take and pay agreement that is a toll through which the loan for the construction of the SGR is repaid.

“It will be difficult and improbable to meet the contractual obligations under the take and pay agreement thus leading to default in the repayment obligations,” argued KPA.

In November last year, the High Court quashed the government’s directives and suspended them for 180 days to enable the State to regularise the situation (including conducting public participation on the directives).