In 2016 the respondent, Kenya Ports Authority (KPA), advised the applicant, Autoports Freight Terminals Ltd (AFT), as follows: 'It has been decided that nomination of containers to your Container Freight Station (CFS) be suspended with immediate effect.'

AFT argued that KPA's decision in this letter was irrational, unlawful, unreasonable and discriminative; was too vague to be effective; was made without jurisdiction; was ultra vires; was made in violation of the rules of natural justice; and was contrary to the provisions of East African Community Customs Management Act and the terms of the licence agreement between AFT and KPA. AFT further argued that its rights to be heard and rights to property had been breached, as well as art 3.6 of the Hague-Visby Rules, which AFT said governed the nomination of cargo by KPA and was therefore required to be followed by KPA. AFT alleged governmental interference in KPA's cargo nomination decisions.

KPA responded that this was a purely contractual dispute with no public law context. KPA argued that AFT had conflated two distinct issues involving appointment of a transit shed and nomination of containers. The former process is effected by the Commissioner of Customs under s 12(1) of the East African Community Customs Management Act, while the latter is effected by the KPA pursuant to powers bestowed under s 12(2) of the Kenya Ports Authority Act.​ Licensing AFT as a transit shed did not bestow an automatic right to have cargo nominated to it. KPA outsourced its functions of warehousing cargo to AFT by agreement, and AFT simply became an agent of KPA for the purposes of cargo handling. 

KPA denied any contravention of the Hague-Visby Rules, reiterating that cargo nomination is at the sole discretion of KPA. To remove that unfettered discretion would be to allow an importer and other CFS operators to create and operate a port system outside the control of KPA, thereby contravening s 12 of the Kenya Ports Authority Act. The nomination of cargo is a purely administrative measure that KPA must be allowed to undertake to ensure the proper operation of the port and the security of the country and its people. Further, the Hague-Visby Rules do not apply to Kenya because Kenya is not a signatory to the 1968 Visby Protocol but only to the Hague Rules. In any event, art 3.6 of the Hague-Visby Rules does not dictate that nomination of goods to a CFS operator is the preserve of the consignee of the goods.  

Held: AFT's application upheld.

The letter by KPA communicating the decision to suspend nomination of cargo to AFT's CFS was unmerited, oppressive and in violation of AFT's right to a fair hearing and fair administrative action. The decision in the letter is quashed. An order of prohibition is directed at KPA prohibiting it from further suspension of nomination of containers to AFT's CFS on other than legal grounds, in accordance with terms of the licence agreement and in full observance and compliance with the law and the rules of natural justice. An order of mandamus is issued and directed at KPA as a public body, compelling it to perform its public duty of offering port services in accordance with the law and without arbitrariness and blatant departure from the rules of natural justice.