The raging dispute between the government and transporters over a directive to have all imported cargo destined to Nairobi and beyond transported on the standard gauge railway has landed in court.
Under Kenya Transporters Association Ltd (KTA), operators of trucks, have filed a petition seeking a declaration that importers of cargo at the port of Mombasa have a right to choose the mode of transporting their goods.
They have sued the Kenya Ports Authority, Kenya Revenue Authority, Kenya Railways Corporation, Transport Cabinet Secretary James Macharia and Competition Authority of Kenya.
KTA argues that the directive issued by KPA and KRA breaches public trust bestowed upon them by residents of Mombasa and violates the Constitution.
The decision to file the petition seems to be the last resort for transporters, who together with some human rights activists and politicians, have been holding weekly demonstrations against the directive.
Through lawyer Gikandi Ngibuini, KTA argues that instead of improving consumer awareness on the use of SGR, the government has curtailed consumers’ right to make their own choice regarding which mode of transport is suitable for them.
Mr Ngibuini argues that importers are protected by the Constitution as far as their freedom to choose the transport is concerned.
KTA argues that the directive issued by KPA and KRA in favour of Kenya Railways were not subjected to any public participation.
“The government behaves as though the SGR is the only infrastructure which has ever been invested in the country and forgets that the road infrastructure development and transportation companies have been a great source of revenue,” argues KTA in its petition.
The transporters also argue that the government has failed to operate in a way that realises that there is no business that is more important to people than another since all are equal under Article 43 of the Constitution.
They also say that being a stakeholder in the transport industry, KTA ought to have been given a chance to participate in the manner in which the directive was passed.
According to the transporters, none of the statutes that created KPA, KRA and CAK confer any power on them to meddle in matters that do not concern them.
They further argue that their actions amount to abuse of power, the effect which is to confer unlawful monopoly to Kenya Railways.
“The consequence of the monopoly has resulted in transporters being thrown out of business,” the transporters argue.
KTA says it has on several occasions approached Mr Macharia to guide KPA and KRC on the issue in vain.
It says Mr Macharia has refused to attend meetings with them or send his officials.
KTA accuses CAK of violating the Competition Act by engaging in restrictive trade practice, limiting participation of other stakeholders in transporting cargo and barring importers from the right to decide which mode of transport to use.
The transporters also want the directive quashed and a declaration that Mr Macharia has acted unlawfully and contrary to the Constitution.
They also want an order directing CAK to take immediate action to “demolish the monolistic tendency” with regard to transportation of containers from the port to other destinations that is now monopolised by Kenya Railways.
They are also seeking general damages against the respondents and the costs of the petition.