BY SAM ALFAN .
The government has been stopped from interfering with a contract between two Kenyan firms and South Sudan government for clearance of its goods at the Port of Mombasa.
Justice Alfred Mabeya issued the order after Outoports Nairobi Freight Terminal ltd and Compact Freight System limited claimed that Trade and Industrialisation CS Moses Kuria had threatened to cancel the arrangement between the two firms and South Sudan government.
“A conservatory order be and is hereby issued restraining the Respondents and their agents from interfering with the current existing arrangements whereby cargo destined for South Sudan passing through the Port of Mombasa is handled, stored and warehoused by either of the petitioners pending the hearing of the petition,” ordered judge Mabeya.
The two firms through lawyer Philip Nyachoti arguing that they are apprehensive that the deal will be cancelled yet they have invested heavily to carry out the job.
“Allowing the Government to make decisions which are dusted in a week or two on capricious and whimsical basis would encourage an environment of arm-twisting, blackmailing and corruption and unless the conservatory orders were issued, the petitioner’s would suffer losses,” lawyer Nyachoti told the court.
Nyachoti told the court that that they were duly authorized agents of the Kenya Revenue Authority (KRA) to operate Container Freight Stations (CFS).
He further submitted that the companies serve as customs bonded warehouses to handle, store and clear any cargo that is entrusted to them by KPA, pending clearance and removal by the importers.
“The companies were appointed in 2013 by the 1st and 4th respondent to handle, store and warehouse all the imported and containerized cargo destined for South Sudan which is landlocked pending clearance by KRA,” submitted Nyachoti.
He added that management of exports and imports of marine cargo was under the exclusive domain of the Ministry of Roads and Transport.
And in a letter dated 13th November 2022, Trade ministry instructed KPA that all cargo destined to South Sudan passing through the Port of Mombasa would be handled, stored and warehoused by either of the companies.
However, Kuria allegedly threatened to direct KPA to annul the deal.
Lawyer Nyachoti added that the intended termination would breach the firms social and economic rights enshrined in Article 43 of the Constitution and the companys’ board of directors , shareholding and employees would also suffer losses and would lose their personal dignity should they lose their means of survival.
The court heard that the Government upheld the principle of collective responsibility and any action of the Cabinet was deemed to be the collective action of the entire Government.
He said one CS cannot undo what another Cabinet Secretary had done.
“That the Government was estopped from such action under Section 120 of the Evidence Act and the intended termination would further breach Article 10 of the Constitution on principles of credibility, accountability and transparency,” he said.
Murkomen, Kuria and Attorney General denied the claims in reply filed by Transport Principal Secretary Mohamed Daghar.
He said that the Government had ratified the United Nations Convention on the Law of the Sea (UNCLOS) under which landlocked states such as South Sudan had the right to access to and from the sea and enjoyed the freedom of transit though the transit states by all means of transport.
That consequently, Kenya gave its neighboring land locked countries such as South Sudan the right to access the sea and freedom of transit.
He added that the Government of Kenya had no mandate to appoint any clearing and forwarding agents or CFS for an importer or exporter of transit goods and that South Sudan had designated the petitioners as its preferred CFS.
The arrangement, he said, was acceptable to the Government and the same was communicated to South Sudan in a letter last year.
