A case being heard at the Mombasa High Court has the potential to shake up the relationship between county and national governments over the control of key economic institutions and the very foundations of Kenya’s Constitution.
The case, filed by three petitioners, takes the fight for the control of the port of Mombasa from the political arena to the corridors of the law, and its outcome could have ramifications for devolution.
Under the Constitution, key institutions like ports, railways, airports and waterways, as well as natural resources, are regarded as national assets, leaving counties to manage some classes of roads and markets. The case in Mombasa seeks to review this arrangement and will be keenly followed by other counties hosting major State-owned companies like East African Portland Company (Kajiado), Kenya Meat Commission (Machakos), hydropower plants in various counties, and sugar companies in Western and Nyanza.
The High Court is expected to rule on whether the petition, which seeks to have the Mombasa County government allowed to manage and operate the port, will be referred to the Chief Justice to constitute a five-judge bench to hear it. Justice Eric Ogola said on Tuesday he will deliver the ruling on July 24.
EMPLOYS 7,000 PEOPLE
Were the petition to succeed, the county government of Mombasa would take over management and operations of the port, which employs 7,000 people and generated Sh38 billion in revenue last year from handling goods traded between East Africa, the Great Lakes region and the rest of the world.
The petitioners, William Ramogi, Asha Omar and Gerald Kiti, through their lawyer Nyambura Kihoro, say the case is important for the regulation, management and operations at the port of Mombasa. “The petition is complex in nature and raises matters that are of public interest and of national importance,” said Ms Kihoro.
The petitioners have sued the Attorney-General, the Cabinet Secretary in charge of Transport and Infrastructure, Kenya Ports Authority, and Kenya Railways Corporation. All of them did not oppose the application to have the CJ constitute a five-judge bench.
The petitioners want an order that the national government only regulates the port, leaving the county to manage its operations.
They contend that the county government, under the Constitution, is vested with powers to manage local transport, including harbours, but excluding the regulation of international and national shipping.
They argue that maritime navigation, which is reserved for the national government, ends once a ship docks at the port.
“It is a violation of the Constitution for the national government not to have devolved the function of managing and operation of harbours in relation to transport to the county government,” the three argue in their petition.
Major ports across the world, they say, are owned and controlled by port city municipalities or states in which they are located. According to the petitioners, KPA and KR have entered into an agreement which obligates them to ensure a set volume of cargo is transported via the Standard Gauge Railway (SGR) to the Embakasi Inland Container Depot (ICD).
“As a result, the freight and the cargo handling activities ... have been transferred from Mombasa to KPA’s Embakasi ICD,” they say.
There has been intense fight for the control of the port of Mombasa with the Kenya Ports Authority recording a high turnover of chief executives.
Since 1979, the parastatal has had 13 managing directors, seven of whom were sacked, three resigned while four finished their terms.
Mr Jonathan Mturi (February 1980-September 1984), Mr Phillip Okundi (September 1984-January 1993) and Mr Brown Ondego (December 1999-January 2006) completed their terms.
Mr John Gituma, who was deputy director-general before being made the first KPA MD, served from November 1979 to February 1980, then retired.
He took charge from Mr Gichiri Ndua in 2016. Mr Ndua replaced Mr James Mulewa.
Previously, Mr Abdalla Mwaruwa was the MD.
Other former KPA MDs were Mr Joseph Munene, Mr Lennyrod Mwangola, Mr Simeon Mkalla, Mr Albert Mumba and Mr Robert Brenneisen who served as executive chairman.
The first woman MD, Ms Catherine Mturi-Wairi, resigned two months ago.
Dr Daniel Manduku was appointed acting MD following Ms Wairi’s exit.
KPA, which is regarded as one of the biggest and most lucrative parastatals, has 7,000 employees.
It was established through an Act of Parliament in January 1978 with its main mandate being to manage the Port of Mombasa and several small ports along the country’s coastline.
The Port of Mombasa, which is one of the largest ports along the East African coast, also operates inland container depots in Kisumu, Embakasi and Eldoret.
According to its Financial Report for the year ended June 2016, it made Sh10 billion profits before tax compared to the performance target of Sh7 billion.
Its revenue stands at close to Sh40 billion.
There have been calls from present and past Coast politicians for appointments of MD from the Coast.
The current KPA chairman is General (Rtd) Joseph Kibwana.