The government's plan to introduce toll charges on one of Kenya's busiest highways has landed in court again, with consumer rights lobby Cofek seeking to stop the rollout over fears it will increase the cost of transport and place an extra burden on millions of road users.
In a petition filed before the High Court, the Consumer Federation of Kenya (Cofek) argues that motorists cannot be compelled to pay to use the Nairobi–Nakuru–Mau Summit and Rironi–Maai Mahiu–Naivasha highways unless the government first provides a practical toll-free alternative route.
The roads are among the country's most important transport links, connecting Nairobi with the North Rift, Western Kenya and neighbouring East African countries. They also carry large volumes of passengers, fuel, agricultural produce, manufactured goods and other essential supplies every day.
According to court documents, Cofek says introducing compulsory user charges on the corridor will have a direct impact on consumers, businesses and transport operators who rely on the roads.
“Any mandatory user charge imposed upon the said corridor is likely to affect millions of consumers, motorists, transporters, farmers, traders, manufacturers and members of the public who rely upon the corridor daily,” Cofek says in court papers.
The matter was presented before Milimani High Court Judge David Mburu on Monday, but the court declined to issue immediate orders suspending the government's plan. Instead, the petition was transferred to the High Court in Kisumu, where related cases are already being handled.
“Since there is consensus from the parties, this matter is transferred to the Kisumu High Court, which is handling similar petitions dealing with the same subject matter. The matter shall be mentioned before the Presiding Judge at Kisumu on July 30 for further directions,” the judge said.
The tolling proposal is part of a 30-year public-private partnership project covering 233 kilometres of highway. This includes about 175 kilometres between Rironi and Mau Summit and another 58 kilometres connecting Rironi to Naivasha through Maai Mahiu.
The Kenya National Highways Authority (KeNHA) has said the project will involve expanding, upgrading and operating the roads under a design-build-finance-operate-maintain-transfer model, with motorists paying to use the improved highway.
President William Ruto launched the project in November last year before it was later divided into two sections after talks with one consortium failed.
Construction is expected to take two years at a cost of $863 million (Sh111.7 billion).
Cofek says the proposed tolling system raises constitutional concerns, including transparency, consumer protection and equal access to public infrastructure. It argues that the government has not explained how it arrived at the proposed Sh8 per kilometre charge.
The lobby also says the new fees will increase transport costs for road users, with the extra expense eventually being passed on to consumers through higher prices for goods and services.
“The resulting financial burden is likely to cascade throughout the supply chain, leading to increased transport costs, higher consumer prices and a corresponding rise in the overall cost of living,” says the lobby’s secretary-general Stephen Mutoro in an affidavit.
“Unless this court intervenes, the respondents are likely to continue undertaking further approvals, negotiations, contractual engagements and other implementation measures capable of creating binding legal, financial and commercial obligations before the constitutional questions raised in the accompanying petition are determined,” he further argues.
The government has opposed the petition through a preliminary objection, arguing that similar issues are already before the High Court in Nakuru in a case filed by the Motorists Association of Kenya and others.
It also says Cofek failed to use the dispute resolution process provided under the Public Private Partnerships Act before moving to court.
“The Petition offends the principle of separation of powers in that the Petitioners invite the court to interfere with the Executive’s mandate concerning development/infrastructure policy, national budgeting and the implementation of Public Private Partnership frameworks,” say KeNHA and the Ministry of Roads in seeking to have the petition struck out.