•KPA wants the appellate court to uphold the appeal and declare the dispute intergovernmental
•The three-judge bench will rule on the matter on September 26.
Image: FILE
The Mombasa county government has been accused of using three residents to claim the management of Kenya Ports Authority.
The KPA, through senior counsel Githu Muigai and Nani Mungai, said the petition seeking the transfer of the management and operations from the national government was filed by the county government through Gerald Kithi, Asha Omar and William Ramogi.
The county government and civil society Muhuri were later enjoined as interested parties.
Muigai told appellate judges Agnes Murgor, Patrick Kiage and Mohammed Warsame that the petition was an intergovernmental dispute which ought to be negotiated and mediated by a special tribunal and not in the High Court.
The former AG urged the Court of Appeal to allow the appeal, which will automatically render a petition filed in the High Court invalid.
He said the High Court erred in allowing the petition yet their client had given sufficient grounds on why the matter should be dismissed.
He cited a similar case in which the national government was given the mandate to run the Kenya Ferry Services.
He said grounds of the case, which was between Mombasa county and Kenya Ferry Services, declared the national government rightful operators of the channel since it operated on international waters.
"The grounds of the ferry petition and of this are similar, and the dispute had already been resolved," Muigai said.
He said the KPA is set to have conflicting and contradicting decisions if the petition is heard since a similar case seeking the same orders has been filed by container freight owners on behalf of Mombasa residents.
But the petitioners, through lawyer Caroline Otieno, said they filed the matter due to the interests of residents and not because of the county.
Otieno said even though the county is an interested party in the petition, their interests are undefined.
She said the dispute with Kenya Ferry Services was on revenue collection and their grounds are not similar.
The counsel said allowing the appeal will be denying Mombasa residents a chance to a decent livelihood as they would not have a chance to tell their grievances.
The petitioners sued KPA, Kenya Railways Corporation, the Ministry of Transport and the AG wanting the court to order the transfer of operations and management to the county government while the national government holds the regulatory mandate.
The petitioners also challenged an agreement between KPA and KRA to have containers transferred to Embakasi Inland Container Depot through the Standard Gauge Railway – a move that pushed many transport companies out of business and rendered hundreds of people jobless.
The respondent objected to the matter being heard in the High Court citing lack of jurisdiction.
The High Court, comprising five judges ruled that it had the power to hear and determine the matter. It directed the matter to be heard.
The respondents challenged the decision at the Court of Appeal.