Republic of Kenya v. Ministry for Transport and Communication, et al., ex parte Waa Ship Garbage Collector, et al.

"Miscellaneous Civil Application 617 of 2003; KLR (E & L) 1"
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The applicants sought orders of certiorari and prohibition of enforcement of a notice and multiple letters attesting to the fact that the Kenya Ports Authority (the “KPA”) authorized only two firms to operate as sludge removal firms in the port of Mombasa.

The applicants ran businesses that removed sludge from ships docking in the Port of Mombasa. They had operated for many years under licenses from the KPA and allegedly without any pollution of the environment. The documents in question were a Kenya Gazette Notice issued by the Minister for Transport and Communications and multiple letters from the KPA and the National Environment Management Authority (“NEMA”). The documents explained that two companies had been selected and were to be the only companies that could undertake sludge removal at the port going forward. The applicants claimed that the decision ruined their businesses, affected the lives of their employees, improperly dictated who ship owners could contract with in the port, and improperly terminated their licenses without cause. The applicants complained that the concession agreements were invalid as they were based on the International Convention for Prevention of Pollution from Ships (“MARPOL”), which had not been adopted into domestic law.

The justification offered by KPA and NEMA for the decision was that they were required to provide receptions for the removal of such waste under national and international obligations. Kenya was a party to the International Convention for Prevention of Pollution from Ships (“MARPOL”), which “obliges the government of Kenya to provide, at ports where ships have oily residues to discharge dock, facilities for the reception of such residues and oily mixtures.” Domestically, the Environmental Management and Coordination Act of 1999 (the “Environmental Act”) was implemented to enable Kenya to perform obligations from international treaties. KPA and NEMA also claimed that there was a public call for bids for the new project and none of the applicants submitted bids. They claimed that the concession agreements with the two companies were not exclusive and that the applicants were also welcome to also apply.

The Court dismissed the application.

With regards to the requests for certiorari, the Court held that none of the documents in question presented a decision capable of being squashed by certiorari. When determining the Court’s ability to review the documents, the Court noted that the decisions of statutory bodies “are amenable to judicial review if they are judicial or quasi-judicial.” Administrative and executive decisions could only be reviewed if they were in conflict with the law or exceeded the authority of the agency issuing the decision. The Court noted that an administrative agency can exceed its authority where (1) the agency has acted out of jurisdiction, (2) where it did not take account of the appropriate matters; and (3) where the decision is completely unreasonable.

Here, the KPA and NEMA were acting within the scope of their authority and did not breach any of the above principles; therefore their decisions were not subject to review. The KPA had the authority to “maintain, operate, improve and regulate the ports” and to “prohibit, control or regulate” access to the port by any person. The decision to develop facilities and contract for the management of those facilities fell within that scope. The removal of licenses, which in turn denied the appellants access to the port, was also within that scope.

With respect to the applicants’ argument that the principles of natural justice had been breached because the applicants had been condemned unheard, the Court pointed out that none of the applicants had submitted a proposal for the tender bid. As the decision made by the respondent agencies had been a purely administrative one (and not a judicial or quasi-judicial decision, as might have been the case if the applicants had submitted proposals or objected to the proposals of the winning bidders), such decision was not amenable to the judicial review order of certiorari.

With regards to the request for a prohibition, the Court held that one should not be granted in this case. Prohibitions were only warranted where there was excess of or absence of jurisdiction of a departure from the rules of natural justice, which the Court found was not the case here.

“Due to the growing concern about the pollution of the environment, international treaties, conventions and regulations have been made requiring, inter alia, that all ships should discharge all waste and in particular sludge generated in the course of their journeys to acceptable reception facilities at the ports where they call and obtain certificates that they have done so. Failing to do that their monitoring agencies will accuse them of discharging it into the sea and have them blacklisted.” Page 583.

“The Port of Mombasa is an international one. As it allows international ships to dock there is has no choice but to comply with international standard otherwise it will be blacklisted and isolated. Apparently because KPA was not able or did not want to provide such reception facility it entered into the concession agreements with the interested parties to provide it. As I have already stated KPA had powers under 12(2)(n) to enter into such agreements. In my judgment therefore reference to MARPOL 73/78 does not make any difference. An agreement made pursuant to and under the provisions of the law of Kenya does not become illegal simply because it incidentally complies with and or makes reference to an international treaty or convention which has not been domesticated and made the municipal law of Kenya.” Page 583.

“In the celebrated case of Associated Provincial Picture Houses Limited Vs Wednesbury Corporation [1947] 1 KB 223, in which the court enunciated what later came to be known as the Wednesbury principles, it was held that where a local authority is empowered under an Act of Parliament to act or decide on some matter the court can only intervene in three situations. The first situation is where it has acted out of jurisdiction. The second one is where it has taken into account matters it ought not to have taken into account or failed to take into account matters it ought to have taken into account. The third and last one is where it has made a decision that “is so unreasonable that no reasonable authority could ever come to it” (page 230). . . .

Did the said decisions of KPA and NEMA breach any of these principles? As I have already stated, the two had legislative authoritive to make them and they did not exceed that authority. They therefore acted within their jurisdiction. Did they take any matter into consideration that they ought not to have taken in consideration? Other than the allegation by Mr Gikandi that they applied MARPOL 73/78, the applicants never made any allegation of any matter having been taken into account which was not supposed to be taken into account or that the respondents failed to take into account any matter that they should have taken into account.” Page 587-588