CJ Koome appoints three-judge bench to hear case challenging ports privatisation

Chief Justice Martha Koome has appointed a three-judge bench to hear and determine a petition challenging the government’s plans to privatise some berths at Mombasa and Lamu ports.

The CJ has appointed Mombasa High Court Presiding Judge Olga Sewe, Justice Gregory Mutai and Justice Florence Macharia to hear the petition.

The High Court had certified that the case raised a substantial question of law under Article 163 of the Constitution, thus referring it to the CJ.

“Having found that there is a substantial question of law, I direct that this matter be referred to the CJ to impanel and assign not less than three judges of the High Court to hear this matter,” Justice Kizito Magare ruled.

In its petition, the Taireni Association of Mijikenda sued the Cabinet Secretaries for Finance and National Treasury, Transport and Infrastructure, the Attorney General and the KPA.

Also Read: I will not allow privatisation of Mombasa Port – President Ruto

The association is challenging the alleged planned privatisation of Lamu Container Terminal Berths 1-3, Lamu Special Economic Zone, Mombasa Ports Berths 11-14 and Mombasa Port Container Terminal 1.

In its petition, the Association is seeking a declaration that Lamu Port Berths 1-3, Mombasa Port Berths 11-14 and Mombasa Port Container Terminal 1 contained in Tender No. KPA/052/2023-2024/CPS are public assets and not projects and therefore cannot be disposed of under the Public Private Partnership Act, 2022.

It argues that the processes adopted by the government leading to the purported lease, concession or public-private partnership of the public assets held by KPA are both unlawful and unconstitutional.

“The defendants initiated the process of bidding and qualification for the assets of the KPA by means of an invitation to tender dated October 17, in disregard of the express provisions of the law. The berths and Container Terminal One are fully developed and operational,” reads part of the petition.

According to the petitioner, the berths and container terminals are public assets that were developed with public funds and the same were donated to private investors to operate.

It further says that public assets are not projects while arguing that projects are undeveloped economic zones.

“The respondents are sneaking in the Public Private Partnership Act to procure and dispose of public assets, these actions should be frowned upon as they are against the constitution,” reads part of the petition.

The association also argues that KPA is a public entity that is stable and has provided employment to many people, which continues to give them rights under the constitution.

“With the arrival of the investors, there will be restructuring and reorganization of the staff with the attendant risks of layoffs and retrenchment. The government has violated the constitution,” the petition reads in part.

It is also seeking a declaration that the processes leading to the issuance of the tender were unconstitutional.

The association is also seeking an order stopping or suspending the tender process for the sale of berths and container terminals at the ports of Lamu and Mombasa or any other port operated by KPA to any person or entity through public-private partnership arrangements.

The case has been fixed for hearing on February 12.

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