- Petitioners said MoU government signed with foreign shipping company was done secretly
- AG Kihara Kariuki, Kenya Ports Authority and Transport CS wanted orders lifted
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A three-judge bench on Monday upheld orders stopping privatisation of the second container terminal.
Judges Erick Ogolla, Mugure Thande and Alfred Mubea said an earlier ruling by Justice Patrick Otieno was made on merit and cannot be altered.
The judges, sitting in Mombasa, said the application by Attorney General Kihara Kariuki, Kenya Ports Authority, Transport CS James Macharia to review and set aside Justice Otieno's conservatory orders lacked merit.
“The application is entirely dismissed. The parties’ application that is asking the court to strike out the earlier orders on grounds that the court relied on non-factual information is of no merit and has no basis because the matter came up in court for ex parte hearing to specifically address the issue of the conservatory orders,” Justice Mugure said.
A group of petitioners had challenged in court a memorandum of understanding between the Transport Ministry and the Mediterranean Shipping Company (MSC) to run Mombasa port's second container terminal.
Taireni Association of Mijikenda, Dock Workers Union and Muslim for Human Rights, through lawyer Ochieng Oginga, argued that the MoU was secretly negotiated with MSC, a foreign private company, on operations and management of the terminal.
"Your honours, you cannot be told to review the earlier conservatory orders issued since the application is purposely introduced to defeat earlier orders made by the court, the respondents sought to obtain the supplement gazette notice upon being served with the interim conservatory orders," said Ochieng.
The judges also observed that the matter before court raised serious constitutional issues, therefore the court had an obligation to safeguard it until the matter is heard and determined.
The bench said they were satisfied that lack of conservatory orders in place would have been prejudicial.
“For a court of law to review orders, there must be new evidence tabled before it, and error must be evident in the court records,” she said.
The AG had applied to have conservatory orders earlier issued by justice Otieno struck out since they were issued before the notice of motion was heard inter parties.
Lead by Waweru Gakuyo, who was appearing for the AG, the respondent informed the court that the orders were issued without the parties being heard and that for the matter to proceed afresh before the new bench, there ought to have been no orders in place.
“The AG is seeking for the review of the orders earlier issued, since there is a discovery of new facts, which are our grounds to seek for review of the earlier orders which were premised on errors, “said Gakuyo.
The court later visited the second container terminal after the judges said there was a need to familiarise themselves with the terminal to enable the bench to proceed with the matter for hearing.
The hearing continues Tuesday.