The High Court has certified as urgent a petition challenging the toll charges introduced by the government for motorists who will use the Chinese-built double-decker Nairobi Expressway.
Justice Anthony Mrima directed the petitioner, the Consumer Federation of Kenya (Cofek), to serve the court papers to the Transport and Infrastructure Secretary within three days.
Cofek accuses the Transport minister of failing to conduct public participation as required by law before publishing the base toll rates in December, which he later updated in April ahead of the planned opening of the highway on Saturday.
The lobby says the toll rates pose huge economic implications to Kenyans, and as such, their introduction without public consultation would amount to illegality and is unconstitutional.
Motorists are expected to pay between Sh120 and Sh1,800 in toll charges, depending on the size of the vehicle and the distance covered, the Kenya Gazette on April 22 showed.
The notice added that the prices would be adjusted based on changes in the Consumer Price Index and prevailing foreign exchange rates.
Cofek says it had demanded an explanation for the basis of the toll rates and the contractual documentation concerning the Nairobi Expressway without getting any response.
Its lawyer Moses Sikuta says the letter and spirit of the Public Road Toll Act, of 1984 and which was amended in 2007, is inconsistent with and in violation of the Constitution. As such, he added, the reliance on the same in the formulation and eventual gazettement of the Nairobi Expressway base toll rates is null and void.
He said the haphazard introduction of road tolls would also curtail the entitlement of citizens to enjoy the rights and benefits and specifically lead to discrimination.
“A legislation that introduces caste system of inferior and superior citizens, pegged on affordability and wealth, in the same country where they share citizenship and common heritage is bad,” he said.
The lobby said it was illegal for the CS to issue the notices without supporting regulations as at December 21, 2020, and if any existed, they did not and still do not conform to the provisions of the Statutory Instruments Act.
Kenya launched the construction of a double-decker road that links the Jomo Kenyatta International Airport to the Nairobi-Nakuru highway using private investment from China Road and Bridge Construction (CRBC).
The Sh88 billion project is financed under the public-private partnership (PPP) model, according to the Kenya National Highways Authority (KeNHA).
The Chinese firm is expected to earn an estimated Sh106.8 billion profit for the 27 years it will own the expressway.
President Uhuru Kenyatta is expected to commission the road on May 14. “Please note that the trial phase is not free. Toll fees will be applied at the point of exit,” a notice by the firm in the Daily Nation on Friday read.
Further, Cofek has protested that the Mombasa Road has been narrowed and, in most areas, the initial three lanes have been reduced to two, ostensibly to cause more traffic jams “so that motorists are forced to use the private elevated upper deck”.
“The original road has not been reinstated to its original state, with road markings, signs and lighting and worse, stormwater from the elevated road hit the ground motorists. Trees that were cut down have not been replaced,” the organisation said.
The government, Cofek added, has failed to communicate with road users as to how they will interact with the changes.
The case will be mentioned on May 19 for directions, the judge said.