Mombasa County Government v Kenya Ferry Services & another; Myspace Properties Limited (Interested Party) [2018] KECA 21 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that Likoni Ferry belongs to the National Government, not Mombasa County, and ordered the County to hand it back.
What this practically means
#Executive summary
#Key legal issues
#Whether the operation of the Likoni Ferry was devolved to Mombasa County Government
No. The Likoni Channel is part of the Indian Ocean and an international waterway assigned to the National Government. Legal Notice No. 152 of 2013 confined the devolved ferry function to ferries and harbours in inland lakes and waters, which excludes international waters.
The Fourth Schedule assigns marine navigation to the National Government and assigns ferries and harbours to counties only excluding regulation of international and national shipping. The Transitional Authority's Legal Notice No. 152 of 2013 transferred only ferries operating in inland lakes and waters. Since the Likoni Channel is an international waterway on the international marine navigation system, governed also by international treaties, the function remains with the National Government, and transfer would require an agreement under Article 187(1), which never occurred.
Ownership of, and entitlement to revenue from, the ancillary facilities (parking bays, waiting bays, termini, rental and advertising space)
The plots MS/1/1762 and MS/1/1763 and the structures on them belong to the 1st respondent, which is entitled to the revenue generated from those properties, subject to any licences or levies the appellant is authorized to impose.
It was not disputed that the plots are owned by the 1st respondent, a juridical person with capacity to own property. Structures erected on those properties belong to it. As a juridical person it enjoys Article 40 protection against arbitrary deprivation of property, and the appellant's forcible takeover and collection of revenue was unlawful, entitling the respondents to the reliefs granted by the High Court.
Whether the High Court judgment should be disturbed
No. The appeal lacked merit and the High Court judgment and orders were upheld.
On a first appeal the Court is enjoined to make its own independent conclusions, but on the single decisive issue the appellant's claim failed. The predecessor of the appellant had voluntarily handed over ferry operations to the National Government in 1989; no evidence suggested the appellant would manage the ferries more efficiently; and the appellant's forcible February 2016 takeover without consultation violated Article 187(1) and Article 40.
Legal principles established
#- The Likoni Channel is not an inland lake or water but part of the Indian Ocean and an international waterway assigned to the National Government under the Fourth Schedule; ferry operations on it are therefore a National Government function.
- A county government function under section 5(e) of Part 2 of the Fourth Schedule excludes regulation of international and national shipping and all activities carried out in international waterways.
- Where county legislation conflicts with national legislation such as the Companies Act or State Corporations Act, the county legislation must yield to national legislation.
- A transfer of functions between levels of government can only occur by agreement under Article 187(1), not by force or unilateral takeover.
- A juridical person such as a state corporation enjoys protection of its right to property under Article 40 of the Constitution and is entitled to revenue generated from its properties.
- An appellate court will not strike out an appeal as defective where the respondent never moved the Court under Rule 84 of the Court of Appeal Rules.
Court orders
#- 1.Dismissal of the appeal with costs to the 1st respondent
- 2.Upholding the judgment of the High Court dated 28th November 2016 and the orders granted therein
- 3.The appellant to hand over to the 1st respondent the operations and management of the facilities in question within 14 days from the date of the judgment
- On appeal from
- High Court of Kenya at Mombasa
- Constitutional Petition No. 9 of 2016
- Jurisdiction invoked
- First appellate jurisdiction over a decision of the High Court sitting in constitutional petition jurisdiction; first appeal by right under the Court of Appeal Rules (Rule 29(1)(a) duty to make independent conclusions).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mombasa County Government v Kenya Ferry Services & another; Myspace Properties Limited (Interested Party) [2018] KECA 21 (KLR)", Case Analysis (2018). Civil Appeal No. 15 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/21/eng@2018-04-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.