MOMBASA, Kenya, Jul 19 – A High Court sitting in Mombasa Thursday evening ruled that Chief Justice David Maraga should constitute a bench to hear a petitioned challenging the privatization of the second container terminal (CT2) at the port of Mombasa.
High Court Judge Patrick Otieno ruled that the petition filed by Dock Workers Union (DWU), Muslim for Human Rights (MUHURI) and Taireni Association of Mijikenda raises weighty constitutional issues.
This is despite the fact that two main petitioners – DWU and MUHURI – had already applied to pull out of the suit, leaving Taireni Association of Mijikenda as the sole petitioner.
While delivering the ruling, Justice Otieno said the petition raises very substantial public interest and constitutional issues, therefore the Chief Justice should constitute a panel to hear the matter.
“The matter raises weighty constitutional and public interest issues. The petitioner wants the matter to be sent to the Chief Justice to constitute a panel and none of the parties has raised any objection. The issue has therefore been certified and the file should be transmitted to the Chief Justice latest by Monday July 22,” said Otieno.
Justice Otieno also allowed three more parties to be enjoined to the case.
Seafarers Union of Kenya and a private citizen Mohammed Mawira were enjoined as fourth and fifth interested parties respectively, whereas the National Assembly of Kenya was enjoined as a third respondent in the petition.
In the original petition, before the changes were effected, DWU, Taireni Association of Mijikenda and MUHURI were listed as petitioners, against the Attorney General Kihara Kariuki and Transport Cabinet Secretary James Macharia who had been named as first and second respondent.
Kenya Ports Authority (KPA), Mediterranean Shipping Company (MSC) and Kenya Seafarers Welfare Association had been listed as first, second and third interested parties.
Lawyers representing Kariuki, Macharia, KPA and MSC said they will appeal against Justice Otieno’s ruling to send the file to the Chief Justice for the constitution of a bench.
The case risked being adjourned after the DWU board opted out and MUHURI’s name was struck out of the petition.
MUHURI had already filed a separate petition before the same court to oppose the privatization of the port. The petition went through and will be heard on July 24.
Earlier on, the DWU board told the court that the union’s Secretary General Simon Sang filed the petition opposing port privatization without consulting other board members.
Lawyer Oduori Siminyu, who appeared on behalf of the DWU board, said Sang acted on his own behalf without the approval of the board.
“According to the constitution of the DWU, there should be an executive meeting of the board before filling any matter to court. There was no such meeting, and therefore this was a unilateral decision of the SG,” said Siminyu.
The lawyer said after the DWU board realized that a petition had been filed in court, they appointed him as they to apply to discontinue the matter.
“That was personal decision of the SG. The Union wants to be removed from the proceedings because they never filed the case,” said Siminyu.
However, lawyer Arnold Ochieng, holding brief for lawyer Alfred Nyandieka, who was appointed by Sang to represent the union in court, insisted DWU does not recognize Siminyu.
“On the issue of representation in this court, the SG is the only one with an authority to talk on behalf of the union. The SG has not given authority to change the DWU lawyer and has not informed us of such information. Therefore, Nyandieka is still properly on record,” said Ochieng.