Dock Workers Union & another v Portside Freight Terminals Limited & 10 others
The bottom line
#Supreme Court halts Mombasa grain terminal construction pending appeal on procurement legality.
What this practically means
#The Supreme Court has stopped construction of a grain handling facility at the Port of Mombasa until a full appeal is heard. The court found the appeal raises serious questions about whether the procurement process violated constitutional principles. Building the facility now could make the appeal pointless, as the project involves huge investment and irreversible changes. The order preserves the situation until the court decides the main case.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the consolidated appeal is properly before the court to clothe it with jurisdiction
- 2.Whether the applicants have met the threshold for grant of conservatory orders as set out in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
Key legal issues
#Whether the consolidated appeal is properly before the Supreme Court under Article 163(4)(a) of the Constitution
The appeals are properly before the court because the High Court and Court of Appeal decisions dealt with alleged contravention of fundamental rights and freedoms under Articles 10, 27, 47, 201 and 227 of the Constitution, which are matters of constitutional interpretation and application.
The court examined the record and found that the petitions in the High Court alleged contravention of fundamental rights under specific constitutional articles and sought constitutional reliefs. The Court of Appeal's judgment addressed the same constitutional question. Therefore, the appeals fall within the court's appellate jurisdiction under Article 163(4)(a).
Whether the applicants met the threshold for grant of conservatory orders
The applicants met all three conditions for grant of conservatory orders: the appeal is arguable, it would be rendered nugatory if the orders are not granted, and public interest favours preservation of the subject matter.
The court found that the issue of whether the procurement process met constitutional thresholds under Articles 10, 201 and 227 of the Constitution warrants consideration, making the appeal arguable. On the nugatory aspect, the project involves massive capital investment (USD 45 million) and if construction proceeds, the appeal would be rendered nugatory. The court balanced the rights of parties and found that a conservatory order would preserve the status quo and save Portside Companies from nugatory expenditure should the appeal succeed. The public interest in preserving competing constitutional rights also favoured granting the orders.
Legal principles established
#- To get a conservatory order from the Supreme Court, you must show the appeal is arguable, would be pointless without the order, and public interest supports it.
- An arguable appeal does not have to win—it just needs at least one point worth full argument in court.
- The nugatory test asks whether the harm from proceeding is reversible or can be compensated by damages.
- Public procurement decisions must comply with constitutional values like transparency, equity, and cost-effectiveness.
- The Supreme Court can hear appeals from the Court of Appeal if the case involves interpretation or application of the Constitution.
Court orders
#- 1.Pending the hearing and determination of the consolidated appeal, a Conservatory Order is hereby issued restraining the 1st, 2nd and 3rd respondents from constructing and/or developing a grain handling facility and Island Berth at G-Section, Area belonging to Kenya Ports Authority, Mombasa pursuant to the license granted by the 4th respondent on August 2, 2021.
- 2.Costs of the two motions shall abide the outcome of the consolidated appeal.
- 3.The consolidated appeal, Petition No E010 of 2024 and Petition No E011 of 2024, be expeditiously set down for hearing as soon as the Court diary permits.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal of Kenya
- Civil Appeal No E130 of 2023
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
- Consolidated with
- Petition No E011 of 2024
Relief refused
#Prayer for temporary injunction sought by the 1st applicant
Having reached the conclusion that the conditions for the grant of conservatory orders have been met, we find no purpose to consider the prayer for temporary injunction.
Costs
Costs of the two motions shall abide the outcome of the consolidated appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Costs of the two motions shall abide the outcome of the consolidated appeal.
Those principles are: a. The Appeal is arguable and not frivolous: b. Unless the orders sought are granted, the appeal were it to eventually succeed, would be rendered nugatory: c. That it is in public interest that the conservatory orders be granted.
An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully at the hearing before the court. Even one arguable point is sufficient to meet this test.
On the nugatory aspect, the concern is whether what is sought to be preserved if allowed to happen is reversible; or if it is not reversible, whether damages will reasonably compensate the party aggrieved.
Key timeline
#Practical implications
#Conservatory order test clarified
When seeking conservatory orders at the Supreme Court, you must satisfy all three Gatirau Peter Munya conditions: arguable appeal, nugatory risk, and public interest. The court emphasized that even one arguable point suffices, and the nugatory analysis focuses on reversibility and adequacy of damages. Use this framework to structure your submissions.
Procurement challenges can halt projects
If your company wins a public procurement contract, be aware that legal challenges based on constitutional grounds can stop construction even after court appeals. The Supreme Court may freeze your project pending final appeal, especially if the project involves large capital and irreversible changes. Ensure your procurement process is constitutionally sound from the start.
Your right to challenge procurement
As a Kenyan citizen or worker, you can challenge public procurement decisions in court if you believe they violate constitutional principles like fairness or transparency. The Supreme Court has confirmed that such cases can go all the way to the highest court. If you win at the High Court but lose at the Court of Appeal, you can still seek a conservatory order to stop the project while the Supreme Court hears your appeal.
Frequently asked questions
#What is a conservatory order in Kenya?+
A conservatory order is a temporary court order that preserves the current situation until a case is fully heard. In Kenya, the Supreme Court grants it only if the appeal is arguable, would be pointless without the order, and public interest supports it.
Can the Supreme Court stop a government project in Kenya?+
Yes, the Supreme Court can stop a government project if it finds the appeal raises serious constitutional issues and the project would make the appeal meaningless. In this case, it halted a grain terminal at Mombasa port pending a full hearing.
What makes an appeal arguable in the Supreme Court of Kenya?+
An appeal is arguable if it raises at least one point that deserves full argument, even if it might not succeed. The court does not decide the case at this stage—it only checks if there is a serious question to be heard.
How does public interest affect court orders in Kenya?+
Public interest is a key factor when courts decide whether to grant conservatory orders. The court balances the rights of all parties and the public. In this case, preserving the subject matter of a public procurement dispute was in the public interest.
Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Dock Workers Union & another v Portside Freight Terminals Limited & 10 others", Case Analysis (2024). Petition (Application) E010 of 2024. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/35/eng@2024-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.