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3-judge bench to rule on petition challenging port privatization on October 4

During the three-day hearing of the case, the judges also toured the port of Mombasa to familiarize themselves with the second container terminal, which has been the centre of controversy/CFM

MOMBASA, Kenya, Aug 28 – A judgement on petition challenging the privatization of the second container terminal at the port of Mombasa will be delivered on October 4.

A three-judge bench sitting at the Mombasa High Court on Wednesday said the matters raised by the petitioners – Taireni Association of Mijikenda – are of public interest and economic implications.

The Dock Workers Union (DWU) and the Muslim for Human Rights (MUHURI) are also enjoined to the petition, in which they are challenging an MoU signed between the Ministry of Transport and Mediterranean Shipping Company (MSC).

Presiding Judge Erick Ogolla, Justices Mugure Thande and Alfred Mabeya, said a verdict on the matter will be delivered on October 4 after considering all the evidence, and written and oral submissions brought before the court.

In the controversial MoU, the government allowed MSC to run the second Container Terminal (CT2) at the port of Mombasa, through the Kenya National Shipping Line (KNSL) Company.

The petitioners said the MoU signed between government and the MSC breached the constitution by allowing the port to be run by MSC, which is a foreign entity.

Lawyers Arnold Oginga and Alfred Nyandieka, acting for the petitioners, cited over 15 Articles in the Constitution (2010) arguing that the MoU will lead to job losses, it lacked public participation.

They also accused the government of engaging in secret dealings among other contraventions of the law.

They cited Article 40 on economic and social rights, Article 43 on consumer rights and article 57 on rights of the youth.

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However, Kenya Ports Authority (KPA), the National Assembly and MSC, which are listed as respondents and interest parties in the suit, said MSC has been part of KNSL since 1997.

They said the MoU signed therefore does not raise any constitutional issues because it is purely a commercial transaction.

KPA lawyer Sanjeev Kalgram, MSC’s Kamau Karori and National Assembly’s Sheriffsam Mwendwa, said the Kenya National Shipping Line was established in 1987 and MSC is a shareholder of KNSL since 1997.

“Therefore, the allegations that the port of being handed over to MSC on a silver platter are untrue. The reality is contrary to the petition because MSC have been shareholders since 1997,” said Kalgram.

Karori, who was representing MSC, said the petitioners are wrong to try and interfere with the matter.

“What is wrong with two shareholders sitting together to come up with ways of reviving KNSL. There is no need for public participation in the matter,” said Karori.

Karori added that the MoU, which is subject matter in the court, has not been presented before the judges, therefore the court cannot enter an arena of speculations.

However, Nyandieka, appearing for the petitioners, said KPA, MSC and National Assembly had failed to prove that the MoU is a commercial transaction.

He added that: “The issue of commercial transaction is a destruction being brought by the respondents and the interested parties to portray that the matter is commercial. However, the subject matter from our side is purely constitutional because they have breached several articles of the constitution, which is the Supreme Law of this country.”

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During the three-day hearing of the case, the judges also toured the port of Mombasa to familiarize themselves with the second container terminal, which has been the centre of controversy.

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