Reprieve for regional importers as court stops Kenya's SGR rule

Importers using the port of Mombasa are now free to use road transport to haul cargo to their respective destinations, after a five-judge bench quashed a government directive requiring all cargo imported through the port be transported to Nairobi and the hinterland exclusively by the Standard Gauge Railway (SGR).

Kenya Transporters Association’s Mercy Ireri said all transporters from any country in East Africa using the port are now free to choose mode of transporting cargo.

“The ruling applies to all transporters irrespective of their country of origin. This ruling is a big relief to Kenyan and Uganda transporters who were mostly affected because they are regular transporters,” said Ms. Ireri.

She added, “As we celebrate, we are yet to get full access to the port and they are restricting transporters but that will be dealt with by our lawyers since this is now contempt of court.”

In the ruling on Thursday, at the Mombasa High Court, the Kenya Ports Authority (KPA) lost its bid seeking to have orders reinstated to ensure SGR remains the only mode of ferrying cargo from Mombasa to Nairobi.

The ruling will affect the traffic of cargo at the Naivasha Container Depot which was constructed to decongest the port of Mombasa but had failed to grow cargo intake due to inadequate clearing facilities and other amenities.

The court’s decision has been received positively by transporters who have urged KPA not to appeal the court decision for the sake of the survival of their businesses.

“We had parked all our trucks since most of the cargo was being transported by SGR, but the ruling has favoured us and we recommend the judges," said Hassan Mohammed, a South Sudanese transporter.

Through lawyer Gikandi Ngibuini, the Kenya Transporters Association (KTA) argues that KPA had not proved the substantial loss it will suffer if the court's decision was implemented.

“If the decision of the court is implemented, owners of containers will have liberty to move them either through SGR or KTA,” said Mr. Ngibuini.

He further told the court that the right of choice can only be taken away if the law. Mr. Ngibuini described the KPA application as an attempt by the government to enrich itself in commercial matters at the expense of small business.

The five-judge bench comprised Justices Lydia Achode, Eric Ogola, Anthony Mrima, Joel Ngugi, and Pauline Nyamweya.

“The applicant (KPA) has not placed anything before this court about what it has already done with the 90 days which have since lapsed,” ruled the court.

The court said that the remaining period of 90 days is adequate time for KPA to either appeal against the judgment quashing the directives or to move to the Court of Appeal for suspension of execution.