Kenya Railways stopped from disposing of scrap metal

By  Sam Kiplagat

Court Reporter

Nation Media Group

What you need to know:

• lLbby says the scrap is being transported to a designated private yard in Athi River, Machakos County, where it is allegedly disposed of in an opaque manner and in breach of the law.

The High Court in Kisumu has ordered Kenya Railways Corporation (KRC) to stop removing railway scrap from any of its stations, pending the determination of a case filed by a lobby group.

The court also directed KRC, its board of directors, the police and other parties named in the case to preserve all evidence, electronic and physical, relating to the removal and transportation of the railway materials.

It ordered the preservation of CCTV recordings, GPS and vehicle-tracking records, vehicle logbooks, gate registers, weighbridge records, delivery notes and purchase orders relating to the disposal of the scrap.

"The application is certified as urgent and that an interim conservatory order is hereby issued, to remain in force until further orders of the Court," the court said.

The case will be mentioned on November 5 for further directions.

The petition

The Centre for Litigation Trust alleges that the corporation has been dismantling and disposing of railway scrap metal, railway sleepers, rails and other railway infrastructure materials from its termini in Kisumu, Eldoret, Naivasha and Mombasa.

The lobby says the scrap is being transported to a designated private yard in Athi River, Machakos County, where it is allegedly disposed of in an opaque manner and in breach of the law. It claims the materials are being moved in privately owned vehicles, raising questions about the legal authority for their removal, handling and disposal.

"Kenya Railways Corporation, being a state corporation, cannot lawfully treat public assets as though they are the private property of individual office holders or private persons," the organisation says in its petition.

It alleges that the movement of the materials is taking place without transparent disclosure of the relevant authorisations, disposal documents, valuation records, tender documents, sale agreements, delivery notes or inventory records.

The organisation has sued KRC, its managing director Philip Mainga, the corporation's board of directors, Muranga Freight Logistics Limited and Abcos Industrial Limited.

The legal arguments

The organisation argues that the Public Procurement and Asset Disposal Act, 2015, provides the legal framework for the management and disposal of public assets, requiring public entities to observe transparency, accountability and integrity.

"The Act expressly incorporates constitutional values, principles of integrity, public finance principles and the values and principles of public service into public procurement and asset disposal," the NGO's executive director, Julius Ogogoh, says.

Mr Ogogoh further argues that the Scrap Metal Act regulates dealings in scrap metal and imposes obligations concerning its transportation and handling. He says the law specifically addresses scrap metal of unknown origin and materials obtained from railway infrastructure, prohibiting the possession of scrap metal whose origin is unknown and the removal, defacement or destruction of scrap metal from railway infrastructure.

The NGO wants the court to issue an interim order compelling KRC to produce documents authorising the removal and disposal of the materials, including valuation reports, tender and auction records, sale agreements and delivery documents.

Court documents indicate that the lobby alleges police officers have accompanied or escorted vehicles and trucks transporting the materials. Mr Ogogoh argues that deploying police officers to escort private vehicles carrying public assets to a private yard raises serious legal and accountability concerns.

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