Nairobi transport agency case to be heard by one judge

A petition seeking to determine the constitutionality of the Nairobi Metropolitan Area Transport Authority that was established three years ago will be determined by a single judge.

Dismissing an application for the case to be heard by a bench of more than two judges, Justice Weldon Korir ruled that although the petition by Wanjiru Gikonyo raises novel issues, which are of public interest, the issues are the kind that confront judges on a regular basis.

“It is not lost upon this court that the decision of an uneven number of judges carries the same weight with that of a single judge. In my view, allowing the application will only end up in delaying the disposal of the petition,” the judge said.

Ms Gikonyo moved to court in 2018 challenging the establishment of Namata and a subsequent gazette notice making appointments.

She argued that the move violated constitutional provisions of intergovernmental relations and the Intergovernmental Relations Act of 2012.

But as the case was pending, Ms Gikonyo applied for the file to be taken to the Chief Justice David Maraga for appointment of a bench of uneven number of judges.

She argued that the petition raised substantial questions of law as it seeks to determine whether the transport authority upsets the principle of devolved powers.

But the Attorney General opposed the application, saying the petition is based on an assumption and that the issue whether a joint shared transport function between the national government and the county governments is novel.

The AG further said there were no triable issues raised as no fundamental rights have been breached that requires the interpretation of the Constitution or warrant the hearing of the matter by a panel of judges.

Justice Korir noted that the core issue is the separation of powers and the extent to which the two levels of government can collaborate to provide services, which falls within the mandate of the county governments.