COFEK moves to court to challenge Ksh.8 per kilometre toll on new roads

The petition names the Kenya National Highways Authority (KeNHA), the Cabinet Secretary for Roads and Transport, the Cabinet Secretary for the National Treasury and Economic Planning, the Public Private Partnerships Directorate and the Attorney General as respondents. 

In the petition, COFEK argues that the respondents are already undertaking and progressively advancing the implementation of the Nairobi–Nakuru–Mau Summit (A8) Highway and the Rironi–Maai Mahiu–Naivasha (A8 South) Public Private Partnership Road Project, including the proposed 30-year user-pays tolling framework.

"The respondents are presently undertaking and progressively advancing the statutory implementation process.... thereby setting in motion an ongoing governmental decision-making process capable of culminating in binding statutory, regulatory, contractual and commercial obligations unless this Honourable Court intervenes," the petition states. 

COFEK says the proposed tolling framework will directly affect millions of Kenyan consumers, motorists, public service vehicle operators, transporters, farmers, manufacturers and traders who rely on the Nairobi–Nakuru highway as Kenya's main transport corridor linking the North Rift, Western Kenya and the wider East African region.

According to the consumer lobby, the proposed charges will inevitably increase transport costs, push up consumer prices and worsen the cost of living across the country. 

The federation is also challenging the proposed toll charge of Ksh.8 per kilometre, arguing that it is excessive, unaffordable and unsupported by any disclosed legal, regulatory or objective basis.

"The proposed toll of Ksh.8 per kilometre is excessive, unaffordable and unsupported by any disclosed legal, regulatory or objective basis and ought to be reduced to no more than Ksh.4 per kilometre or otherwise properly and transparently justified before the project proceeds further," the petition states. 

COFEK further argues that the government cannot lawfully impose mandatory toll charges on users of the Nairobi–Nakuru highway while motorists using other taxpayer-funded national roads continue to enjoy similar public infrastructure free of charge.

The federation maintains that motorists should not be compelled to pay to use the highway unless the government first provides a practical, reasonable, accessible and toll-free alternative route running alongside the tolled highway.

"The respondents may not lawfully subject users of the Nairobi–Nakuru–Mau Summit Highway to a mandatory user charge in the absence of a practical, reasonable, accessible and toll-free alternative road," the court papers read. 

As part of the urgent application, COFEK is seeking conservatory orders restraining the government from implementing, enforcing or gazetting the proposed toll tariff, and from proceeding with the PPP project until the court determines the constitutional issues raised in the petition.

It is also asking the court to bar the implementation of the project unless the respondents either reduce the proposed tariff to Ksh.4 per kilometre or provide a transparent and objective justification for maintaining the Ksh.8 charge, while guaranteeing motorists a genuine toll-free alternative. 

The petition is supported by an affidavit sworn by COFEK Secretary General Stephen Mutoro, who argues that unless the court intervenes immediately, the respondents are likely to continue approving, negotiating and entering into contractual arrangements that could create irreversible legal and financial obligations before the constitutional questions are heard and determined.