Mombasa County government has suffered a setback after its application seeking to suspend the execution of a judgment in which it was ordered to pay Kenya Ferry Services over Sh80 million as compensation was dismissed.
The compensation was in respect to lost revenue by KFS from vehicles using its landing facilities and termini.
Justice Eric Ogola said it is the duty of the court to affirm the right of a decree holder to enjoy the fruits of such order unless there are valid reasons for a stay (suspension).
He said the intended appeal by the county government cannot be rendered trivial if the money is paid since KFS is capable of refunding the money should the appeal succeed.
“It is the finding of this court that this is a clear case of the applicant (county government) suffering no substantial loss if the stay is not granted,” said Justice Ogola.
Justice Ogola said he will allow KFS to enjoy the outcome of the case.
The judge noted that both the county government and KFS are in business and each make “good” money, hence none would have a problem either paying the money or refunding it after the intended appeal.
The county government had argued that Mombasa residents will be affected by the movement of funds from the accounts without budgetary provision.
“It is in the interest of justice that the suspension be granted so as not to affect the position of public finances,” read the application.
It further argued that being a government, there is no fear of defaulting.
Governor Hassan Joho’s administration also said it has already filed an appeal at the Court of Appeal and served the notice to the ferry agency.
However, KFS’ legal director Elijah Kitur opposed the application saying the county government is still at its facilities.
Mr Kitur said the suspension order would not only deny KFS the “fruits” of justice but extend unnecessary suffering and hardship as it would be denied 30 per cent of the income it generates from its facilities, which it relies on to meet recurrent expenditure.
“The national government finances about 70 per cent of KFS recurrent budget and 100 per cent of development expenditure, the shortfall is financed through revenue collected from motorists and facilities it developed,” said Mr Kitur.
Mr Kitur said the court has already found the actions of the county government illegal and a violation of the Constitution.
The orders the county government wanted suspended were issued by Justice Anyara Emukule – who directed it to hand over the operations of the Likoni ferry channel together with all ancillary facilities to KFS within 14 days.
The judge declared that KFS’ right to the protection of its property held by law and protected from arbitrary deprivation by the county government was breached.
Justice Emukule also said that the county government proposed law called Mombasa Port Authority Bill and Mombasa Ports and Harbours Bill 2014 is inconsistent with the Constitution.
“An order that the respondent shall account and refund to the petitioner all sums of money collected as rent, gate fees and rental space fees and advertising space from February till the judgement herein,” read part of the judgement.
KFS had sued the county government seeking among others an order preventing it from taking over its parking area, waiting bays, terminus, rental space, buildings and advertising space.
The state corporation claims that on February 18, without being informed, the county government invaded their facilities and began collecting revenue from vehicles.