Kenya Ports Authority v Ramogi & 8 others (Civil Appeal 166 of 2018) [2019] KECA 305 (KLR)
The bottom line
#The Court of Appeal confirmed Kenyans can challenge the SGR cargo agreement in the High Court, which must now hear the case in full.
What this practically means
#Executive summary
#Key legal issues
#Whether the High Court had jurisdiction at first instance over a petition whose alleged grievance concerns devolution and the impugned Take or Pay Agreement
The High Court properly held the dispute was not an inter-governmental dispute under IGRA; the test is the nature of the claim, not merely who the parties are, and the constitutional violations pleaded were not mere bootstraps. High Court jurisdiction under Article 165(5) therefore attached automatically and could not be ousted.
The Court agreed with the five-judge High Court bench that characterization as inter-governmental depends on the nature of the claim rather than the identity of the parties. Since the petitioners were neither county nor national government and the main cause of action was enforcement of Article 43 economic rights, IGRA's dispute-resolution mechanisms did not apply. The inclusion of the 9th respondent (a county government) as an interested party did not convert the dispute, since an interested party cannot carry a case different from the petitioner's. Jurisdiction was therefore automatic and not ousted or substitutable.
Whether the petition is res judicata Constitution Petition No. 9 of 2016 and Mombasa Civil Appeal No. 15 of 2017
Not res judicata: the parties are different and the issues are substantially different and distinguishable, the present petition focusing on post-docking cargo processes in pursuit of Article 43 rights rather than the division of the ferry and harbour function over the Likoni Channel.
Applying the Uhuru Highway Development Limited test, the Court found the parties in the prior matters were different and the issues raised substantially distinguishable. The previous decisions concerned the division of the transportation function between the National and County Government of Mombasa, specifically operating ferries and harbours, whereas the present petition goes beyond the Likoni Channel and focuses on cargo offloading, clearing, forwarding and transportation to the Inland Container Depot in the context of economic rights arising from the impugned agreement.
Whether the petition is sub judice Petition No. 80 of 2018
Not sub judice: the petitions are not identical, the challenge in the present petition is to the agreement in its entirety rather than an aspect of it, and invocation of the same agreement in different cases does not render a matter sub judice.
The doctrine aims to avoid multiplicity of suits by the same parties over the same issues. While some issues overlap with Petition 80 of 2018, the petitions are not identical and different causes of action can arise from the impugned agreement as it affected parties differently. The present petition challenges the agreement in its entirety, unlike Petition 80 of 2018. The Court also found no demonstrated link establishing that the 1st to 3rd respondents were proxies of the 9th respondent or the Container Freight Stations, as they had filed in their own behalf and in public interest.
Whether the petition should be struck out as unfit for trial
The power to strike out is summary and a last resort; the constitutional, statutory and factual issues raised are contentious and unfit for summary determination, so the petitioners cannot be driven from the seat of justice.
The Court, echoing Kivanga Estates Limited v National Bank of Kenya Limited, held that the striking-out jurisdiction is draconian and discretionary and that a litigant is not to be deprived lightly of a full trial. The issues in the petition are largely contentious constitutional, statutory and factual questions that cannot easily maneuver the petitioners out of the seat of justice. The appellant's application also did not seek a stay of the petition pending IGRA mechanisms, and the matters raised were not so weak as to deprive them of a hearing on merit.
Legal principles established
#- Where a dispute is characterised as inter-governmental under IGRA, the High Court cannot entertain it at first instance; but where the dispute is not inter-governmental in nature, High Court jurisdiction under Article 165(5) attaches automatically and cannot be ousted or substituted.
- Jurisdiction is conferred only by the Constitution or statute and cannot be conferred by consent of parties; any challenge to jurisdiction must be addressed as a threshold issue.
- The power to strike out pleadings is a drastic, summary jurisdiction of last resort; contentious constitutional, statutory and factual issues must go to full trial, and the invocation of the same agreement in different cases does not of itself render a matter sub judice.
- An interested party's case must not differ from the case between the petitioner and the respondent; an interested party cannot pursue its own aggressive case over and above the petitioner's.
Court orders
#- 1.The appeal and the cross-appeal are dismissed
- 2.The High Court's jurisdiction as per its ruling made on 2nd November, 2018 is affirmed
- 3.The case should proceed for trial post-haste
- 4.The costs of the appeal and cross-appeal shall be borne by the appellant and cross-appellants in equal measure
- On appeal from
- High Court of Kenya at Mombasa (five-judge bench)
- Constitution Petition (ruling of 2nd November, 2018)
- Jurisdiction invoked
- Article 164(3) of the Constitution and section 3(1) of the Appellate Jurisdiction Act (appeal from High Court ruling)
Key timeline
#Practical implications
#Frequently asked questions
#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, "Kenya Ports Authority v Ramogi & 8 others (Civil Appeal 166 of 2018) [2019] KECA 305 (KLR)", Case Analysis (2019). Civil Appeal No. 67 of 2019 (with cross-appeal dated 6th February, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/305/eng@2019-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.