The SGR cargo directives will stop being enforceable on November 10, 2021, a five-judge bench at Mombasa High Court ruled on September 30, 2021.
The directives—issued by Transport CS James Macharia on March 15, 2019, and August 3, 2019—force importers to move cargo from Mombasa port by the Standard Gauge Railway (SGR).
The ruling means from November 11, 2021, importers will have the right to choose the mode of cargo haulage.
It’s cheaper by over Sh40,000 to use trucks than SGR when moving cargo from Mombasa port, an analysis by Okoa Mombasa shows.
Kenya Ports Authority (KPA) lost its application after the five-judge bench said it lacked merit and abused the court process.
On November 6, 2020, Mombasa High Court had found the SGR cargo directives was unconstitutional. It said there was no public participation and cited non-compliance with fair administrative procedures.
The decision followed a petition by William Ramogi, Asha Omar, Gerald Kithi, and Kenya Transporters Association (KTA) filed in 2018. MUHURI, activist Maina Kiai and Mombasa County Government were interested parties, all supporting the suit.
At the time, the court gave KPA 180 days to regularize the directives by conducting public participation.
KPA failed to hold public forums during the period and moved to the Court of Appeal. Meantime, it filed an application at the High Court seeking the suspension of the orders beyond 180 days until its appeal is heard and determined.
The High Court, on May 26, 2021, prolonged the suspension until June 22, 2021. Then extended it again.
Even though the court dismissed KPA’s application for lack of merit, it said the matter had “serious public issues”.
“Therefore, we extend the interim conservatory orders herein to November 11, 2021, when they shall automatically lapse,” the judges said. The justices are Lydia Achode, Joel Ngugi, Pauline Nyamweya, Erick Ogola and Anthony Mrima.
The next battle is now at the appellate court where KPA is still seeking orders to stop the execution of a decision on revoking the SGR cargo directives.