Mombasa to continue charging Sh700 parking fee for commercial trucks

The Mombasa High Court has declined to issue temporary orders suspending a decision by the Mombasa County government to increase parking fees for heavy and commercial vehicles to Sh700.

Justice Olga Sewe said the orders sought by the Road Hauliers Association of Kenya would amount to suspending the legislative will and county government affairs.

The Hauliers had sued on May 16, 2024, to seek a remedy following the decision by the Mombasa County government the previous day. They wanted the decision suspended pending a hearing of the suit.

The association sued the county and the Kenya Ports Authority (KPA) which was designated as the collector of the revenue in the directive, and the Attorney General.

The lobby bringing together truck owners and drivers petitioned the high court to set aside the decision of the county government and its implementation by KPA.

The decision is contained in the Customer Notice on Parking Fee Collection for Heavy and Commercial Vehicles in Mombasa commencing on May 15, 2024, which was communicated to the drivers on the same day its implementation was to start.

The truck owners and drivers learnt of the same from the KPA managing Director on May 15 and KPA has been designated as the collector of the fees.

They argue that fees and fines have been previously collected in line with the Mombasa County Finance Act 2023 which provides books of accounts for the irregular collections of parking taxes and subsequent refunds.

And they petitioned the court the following day seeking an order to compel the county and KPA to rescind the decision reviewing parking fees.

The Mombasa County government, however, opposed the application through an affidavit sworn by its County Attorney Jimmy Waliaula.

Waliaula argued that the charge of Sh700 for parking is founded in law and forms part of the charges set out in the Mombasa County Finance Act 2024. He added that any order suspending the directive would gravely prejudice the county's operations.

Waliaula added that the orders sought will greatly interfere with the legal mandate of the county government to raise revenue for its operations.

Justice Sewe said he could not make an interim declaration which would effectively undo the legislative will unless there were strong and cogent reasons to do so. He also declined to restrain the county and KPA from implementing the directive, pending the hearing and determination of the suit, and directed the petitioners to seek a judicial review.

The association wanted the court to issue an order prohibiting the Mombasa County and KPA from increasing the parking fees payable and changing the mode of collection of parking fees as stated in the said Customer Notice on Parking Fee Collection for Heavy and Commercial Vehicles in Mombasa commencing on May 15, 2024.

The petitioner is an association of drivers and owners of trucks whose capacity exceeds 10 tonnes and who deal in the transportation of various goods and containers to and from the Port of Mombasa.

They further averred that they have been paying levies and penalties in line with Schedule D of the Mombasa County Finance Act, which they paid at the commencement of the year 2024.

The applicant further averred that they are also required to pay Port access and other statutory charges prior to accessing the KPA facilities.

Their cause for complaint was that the county government and KPA chose to "arbitrarily and in a flawed procedural manner" change the rule through an undated Customer Notice on Parking Fee Collection.

They further averred that the decision was made without the input or participation of the drivers and truck owners and by extension the members of the public, stakeholders, and National Government and Port users.

The truckers claimed that the implementation of the decision was oppressive and amounted to a contravention of their legitimate expectations. The hearing of the suit will start in two weeks.