Report of the
Commission of Inquiry
Appointed to Inquire
Mtongwe Ferry Accident of
29th April, 1994, at Mombasa
HON. MR. JUSTICE A. MBOGHOLI MSAGHA
H.E. Hon. Daniel T. arap Moi, C.G.H., M.P.
President of the Republic of Kenya and Commander-in-Chief
of the Armed Forces
TABLE OF CONTENTS
LETTER OF TRANSMITAL (v)
PART 1: EVIDENCE – PROCEDURE 13 6
PART 11: THE FERRY – M.V. MTONGWE 1 17 8
PART 111: TERMS OF REFERENCE 9
(A)Circumstances Surrounding and leading to the accident22 9
The accident 40 12
Salvage 52 15
(B) Loss of life and extent of injury 53 15
(C) General and particular matters 17
i. Personnel 59 17
ii. Finances 59 17
iii. Maintenance 63 18
iv. The new ferries 67 19
v. Kenya Ports Authority 83 22
vi. Insurance Services 88 24
vii. Infrastructure 97 26
viii. The Police 100 27
ix. The Hospitals 104 28
x. The South Coast 106 28
xi. Other Remarks 115 31
Mtongwe Ferry Accident
Commission of Inquiry,
P.O. Box 86493,
His Excellency the President,
Hon. Daniel T. arap Moi, C.G.H., M.P.,
By Gazette Notice No. 2694 dated the 8th day of May, 1994 and published on 10th May, 1994 you appointed us Commissioners to inquire into the circumstances surrounding the ferry accident which occurred at Mtongwe near Kilindini Harbour on the morning of 29th April, 1994.
We would like to state that we felt honoured to be so appointed.
We have completed our assignment and now most humbly submit our
Report in accordance with the provisions of Section 7(1) of the
Commissions of Inquiry Act – Cap. 102 Laws of Kenya and as directed in
Gazette Notice No. 2695 of even date which also set out the Terms of
Your Excellency’s Most Obedient Servants,
HON. MR. JUSTICE A. ‘MBOGHOLI MSAGHA
We would like to thank the Attorney-General, Hon. Amos Wako, EBS, EGH, MP, who appeared amicus curiae to these proceedings.
We would also like to register our appreciation to the two Counsel assisting the Commission namely Joseph Vitalis Juma and Duncan Mwanyumba. It is within our knowledge that the two were instrumental to the gathering of evidence and consistent presentation. Their assistance was invaluable in all aspects of our assignment.
The two Joint Secretaries to the Commission, Wachira Gitahi and John Omo, brought to bear their organisational capabilities, which made it possible for the Commission proceedings to run well. Their respective and joint administrative knowledge made it possible to have the Report finalised in the shortest possible time.
Three learned counsel appeared in these proceedings for parties directly concerned therewith. Mr. Gikandi Ngibuini for Kenya Ports Authority, Mrs. Maria A. Metho for Kenya Ferry Services Limited and Mr. I. S. Onyango Ogolla for the victims of the accident. Their contributions jointly and severally to these proceedings have been of great assistance all through these proceedings. We thank them all for that.
Lastly but not least we extend our appreciation to the support staff drawn from different Government Ministries and Organisations for their devotion to the hard work. These include the security personnel, Secretaries and Stenographers. Particular commendation goes to the latter two who worked long hours throughout the whole period. Without them the completion of he task would have been hard to envisage.
HON. MR. JUSICE A. MBOGHOLI MSAGHA
MAJ. GEN (RTD) ELIUD SIMON MBILU EBS
MAJOR (RTD) DR. JOSEPH M. NJOKAH
LT. COL. (RTD) HARJIT SINGH KELLEY, MBS.
LT.COL. (RTD) LUGARD NZEKI, MBS
1. We, Hon. Mr. Justice A. Mbogholi Msagha, Maj-Gen. (Rtd) Eliud Simon Mbilu, Maj. (Rtd) Dr. Joseph M. Njokah, Lt. Col. (Rtd) Harjit Singh Kelley, Lt. Col. (Rtd) Lugard Nzeki, were appointed Commissioners by His Excellency the President of the Republic of Kenya, Daniel T. Arap Moi, CGH, MP under the Conmissions of Inquiry Act, Chapter 102, of the Laws of Kenya as per:
(i) Gazette Notice No. 2694 dated 8th May, 1994 and published on the 10th of May, 1994.
(ii) Gazette Notice No. 2695 dated 8th May, 1994 and published on the 10th of May, 1994.
To inquire into the circumstances surrounding the ferry accident which occurred at Mtongwe near Kilindini Harbour, Mombasa on the morning of 29th April, 1994, and generally or in particular to matters appertaining thereto.
Terms of Reference:
(a) to inquire into the circumstances surrounding the ferry accident at Mtongwe, near Kilindini Harbour on the morning of Friday, 29th April, 1994;
(b) to inquire into the loss of life or injury occasioned to passengers by reason of the accident and into all relevant particulars thereof;
(c) to make practical immediate and long-term recommendations on how such accidents can be avoided; and
(d) to inquire generally or in particular into any other matter pertaining to the above; and in accordance with the provisions of section 7(1) of the said Act, to report thereon.
2. Under Gazette Notice No. 2694 the Commissioners, Joint-Secretaries and Assisting Counsel were appointed as hereunder:
Chairman: Hon. Mr. Justice Amraphael Mbogholi Msagha.
Commissioners: Maj-Gen. (Rtd) Eliud Simon Mbilu, Maj. (Rtd) Dr. Joseph M. Njokah, Lt. Col. (Rtd) Harjit Singh Kelley, Lt. Col. (Rtd) Lugard Nzeki.
Joseph Vitalis Juma,
3. Under Gazette Notice No. 2695 following the citation, the terms of reference were set out and the Commissioners directed to execute the said inquiry with all due diligence and speed and make a report without undue delay.
4. In accordance with Section 5 of the said Act, we the Commissioners on the 10th day of May, 1994 made and subscribed an oath in the prescribed form before Hon. I.C.C. Wambilyangah, a Judge of the High Court, before embarking on our duties as Commissioners.
5. As at 10th May, 1994 .there were no regulations made under the provisions of Section 19 of the Commissions of Inquiry Act. So by powers conferred by Section 9 of the said Act, we made appropriate rules for the conduct and management of the proceedings of the inquiry. These rules were handed out on the said 10th day of May, 1994 and also set out for purposes of record on 23rd May, 1994. Appendix “A” hereof constitutes the said Rules and Procedures.
6. Our initial directions were to hold the proceedings of the inquiry at the Town Hall, Mombasa. However, the said venue was considered inappropriate and so, after due consultation with the Office of the President, the Inquiry was held at Bandari College, Mombasa commencing on the 23rd day of May, 1994 at 9.00 a.m.
7. Kenya Ports Authority and Kenya Ferry Services Limited we represented by advocates in the inquiry for we believe that t proceedings, albeit not being a trial as such, implicated and/or concerned the two bodies. The victims of the tragedy and/or their estates were also represented by counsel. Mr. Gikandi Ngibuini. Mrs. Maria A. Metho, and Mr. I.S. Onyango Ogolla appeared for the foregoing parties respectively in that order.
8. The Inquiry was held in public in accordance with the provisions of Section 3(4) of the said Act and at no time were we called upon or did we deem it necessary to receive evidence in camera.
Forty Four witnesses personally testified on oath directly before us, examined in chief by counsel assisting the Inquiry who also, where need be, cross-examined them. Counsel appearing for the respective parties exercised the right of cross- examination. Our task being basically investigatory, we the Commissioners also questioned the witnesses where necessary. The Counsel Assisting the Commission had the right to re-examine any of the witnesses, where necessary.
10. A public Notice released to the local press by the Joint Secretaries on behalf of the Commission appealed for any relevant information to be availed either in person or by mail. The said Notice appears as appendix “Bt in this report. Response in both cases was recorded. Where necessary we may refer to any such response hereinafter.
11. Hearing and/or proceedings continued for 29 days during which time we received a total of 75 exhibits tendered by counsel assisting the Inquiry.
12. The Attorney-General, Hon. Amos Wako, EBS, EGH, MP, appeared amicus curiae and addressed the Inquiry at the beginning of the proceedings. His opening address and the Chairman’s closing address are reproduced in Appendices “C” and “D” respectively.
13. At the inception of the task bestowed upon us, we considered the word “inquire” to be the key word during our proceedings. It was agreed however that the Terms of Reference would provide the guidelines. This Commission was not a trial court, but, procedurally, to maintain consistency, we adopted a judicial approach in receiving evidence and as set out in the rules we devised. We believe in so doing, no prejudice has been occasioned to any person or institution.
14. In our endeavour to reach the vein of truth in the Inquiry and to reach appropriate recommendations, we could not only rely on spot evidence. Out of necessity we had to accept all the evidence that we considered may in one way or another aid us in realising our undertaking.
15. No issues arose that brought into question the provision of the Evidence Act (Cap.80 Laws of Kenya). Undue technicalities did not surface.
16. A lot of technical evidence was received and documentary backing marked as exhibits. No “technical witness” was released by the Commission until his evidence was understood in those lines. It should also be noted that the members of this Commission were drawn from their respective “technical fields” and therefore were at home with all presentations.
THE FERRY – M.V. MTONGWE I:
17. Mtongwe Ferry Accident took place on the morning of 29th April, 1994.
18. The vessel involved was M.V. Mtongwe I, designed by Burness Corlett and Partners Ltd., and built by African Marine and General Engineering Company Limited in 1971.
19. Originally she was designed for 90 seated passengers but in 1972 she was modified to carry a total of 150 passengers both sitting and standing.
20. The ferry was licensed to ply across the Kilindini Harbour between Mtongwe mainland and Mombasa Island.
21. As at the time and date of accident she had been in service for about 23 years.
TERMS OF REFERENCE:
A. Circumstances Surroundin2 and Leading to the Accident:
22. The Mtongwe ferries serve about 20,000 to 23,000 passengers across the harbour daily. This is based on the Mtongwe passenger census of April, 1994, produced by Anthony Dosho Madzungu (witness No.6), exhibit No. 23.
23. The Mtongwe ferries operate between 5.00 a.m. and 12.00 midnight on a daily basis, (witness No.6 supra).
24. The peak or rush hour periods cover between 5.30 a.m. and 8.30 a.m. and 5.00 p.m. and 7.30 p.m., (see exhibit 23 and witness No.6). This was also confirmed by Ramadhani Mwinyi Mwakinyezi, witness No.15, the coxswain of the fateful ferry.
25. The passengers approach the ferries on both sides of the harbour through the jetties, gangway and pontoon onto the ferries. The Commissioners had the time and opportunity to visit and inspect the same.
26. M.V. Mtongwe I ferry was removed from Mbaraki Wharf by the coxswain, Ramadhani Mwinyi Mwakinyezi at about 4.30 a.m. on the said day of 29th April, 1994. Apart from the coxswain, there was a mechanic and a deckhand. The mechanic was one Ambani while the deckhand was Nderitu. Unfortunately, both Ambani and Nderitu perished in this tragedy.
27. The first trip from the mainland jetty started at about 5.00 a.m. As at about 5.30 a.m. the ferry had done two trips across the harbour. That is to say, the ferry had picked passengers from the Mtongwe mainland jetty twice.
28. At about 6.45 a.m. the ferry was berthed at the Mtongwe mainland pontoon to pick passengers. There is evidence that there was a large crowd of people waiting to board the ferry.
29. Ordinarily, there is an extra ferry provided to assist M.V. Mtongwe I at peak hours. On the fateful day, M.V. Mvita was in service. When M. V. Mtongwe I berthed at about 6.45 a.m. M.V. Mvita had just left for the Island. When M.V. Mvita left, it left very few people waiting for the next ferry, M.V. Mtongwe
30. When MN. Mtongwe I berthed, the ferry guards manning the gate at the jetty leading to the pontoon allowed the passengers to walk onto the ferry.
31. There is evidence that this was a peak hour and the crowd built up very fast. Some people were actually running to board the ferry.
32. The evidence indicates that police officers would be called by the coxswain in case of need to control the crowd at Mtongwe mainland jetty. There was no particular arrangement for police presence there, unlike the Likoni crossing where police presence is on permanent basis.
33. On the fateful day, police officers were not present and there is no evidence that they were called.
34. When M.V. Mtongwe I berthed, there is evidence that the coxswain – Mwakinyezi left the ferry. This was stated by witness No.20, Jennifer Mwanyiro and witness No.23, Francis M. Kiambati.
35. In the absence of the police .officers the crowd boarded the ferry without any control.
36. Within minutes, the fefry was heavily loaded. There is evidence that the ferry was left alongside the pontoon for unnecessarily too long considering the time and circumstances obtaining at that time.
37. The carrying capacity of M.V. Mtongwe I being 150 passengers. there is evidence that the number of people who actually boarded the ferry exceeded 328. We have arrived at this figure by taking the number of the confirmed dead to be 257 and 71 survivors (see evidence of Dr. K.C. Mandalya, witness No.35 and Supt. Dominic Ogalo Babu~, witness No.39). We have evidence thai overloading was an accepted practice. There was also no way oi ascertaining the number on board the ferry (witness No.6, A.N. Madzungu).
38. We find that the ferry was overloaded by more than 178 people.
39. We find that the ferry was overloaded due to the following reasons:
(a) prolonged stay of ferry at the pontoon;
(b) police absence at the jetty;
(c) human defiance by refusing to follow instructions and boarding an already over-loaded ferry;
(d) inadequacy or shortage of ferries at Mtongw~ crossing;
(e) condoned over-loading of the ferries;
(I) lack of counting devices.
40. While the ferry was berthed at the pontoon, she was secured b~ two ropes one forward and one aft.
41. With more than 328 passengers on board, there is evidence that there were more passengers on the port side rear of the ferry.
42. The deckhand then let go the ropes and the coxswain started steering the ferry away from the pontoon to cross to the island side.
43. There were allegations that the coxswain left at high speed. On considering the evidence in totality, we find that the same cannot be sustained. We believe the allegations were based on the engine revs which do not necessarily translate into high speed.
44. After the ferry left the pontoon it started listing or tilting to the left, more so at the rear. Immediately the ferry started taking in water.
45. The coxswain stated and we so find that he had turned the wheel completely to the right.
46. We deem it necessary to set out herein below the evidence of Mr.J.J.M. Shiundu, witness No.40, a Naval Architect, as contained in exhibit No.66 page 17 thereof:
“Due to the overloading and distribution of passengers the vessel already had a list to port side (where the passengers were embarking on board) and was resting on the side of the pontoon. On trying to manoeuvre the vessel from the pontoon, the list to port side continued to increase due I the loss of righting moments The heeling ang increased, vessel became difficult to steer and the floodii angle was reached resulting in ingress of water through ii port holes that finally caused the vessel to capsize.”
47. In the process of the ferry listing or tilting, there was general pan accompanied with shouting and some passengers jumping into tI water. This attracted the attention of people around who include the Kenya Navy personnel, the crew of K-boats and those left c the pontoon. Kenya Navy personnel and the crew of K-boa rescued several survivors and collected the dead.
48. M.V. Mtongwe I ferry capsized and sank about 20 metres from the pontoon and the casualty lay about 22 metres below water.
49. Witness No.43, J.H.N. McMurren, a Marine Surveyor, gave evidence that he surveyed the ferry, M. V. Mtongwe I an produced his report, exhibit No.73. He noted that the ferry was very poorly maintained and had some pre-accident defects.
However, these could not have caused or contributed to the accident.
50. We have also conclusively analyzed the evidence- adduced in its totality. With respect, we have found that the accident was caused by overloading of the ferry associated with poor distribution of passengers on board.
51. We attribute our finding to poor management and/or supervision of the ferries by the company, Kenya Ferry Services Limited and human defiance as earlier observed.
52. Salvage machinery was put in place and after five days of operation the casualty was refloated. We note here that, the Kenya Navy played a major role both in the rescue and salvage operations.
B. Loss of Life and Extent of Injury:
53. We have received evidence from Dr. K.C. Mandalya, witness No.35, that 257 people perished in this tragedy. The cause of death was due to drowning. As at the time of receiving evidence, 8 dead bodies had not been identified. He produced exhibit No.54 being the register extract of the deceased persons. This was supported by witness No.39, Supt. Dominic Ogalo Babu who produced exhibit No.52 – the bundle of post mortem reports. He also gave his list of those who died. Witness No.41,Supt. Wilson Njoroge also produced the photographs of the dead as exhibit No.71. The evidence of these three witnesses tallied in all material particulars as to the number of dead. In a marine disaster of this nature, there was evidence to suggest that there could be more people dead but whose bodies have not been recovered.
54. We find that the number of dead arising from the accident was at least 257 people.
55. There were at least 71 confirmed survivors most of whom received treatment at the Kenya Navy and Coast General Hospital. Had it not been for the prompt expert first aid offered by Kenya Navy personnel the number of dead could have been higher.
56. We have had no direct evidence of any serious injuries save for minor soft tissue injuries as stated by some survivors.
57. Some personal effects were lost in this tragedy and whatever was recovered is lying at the Port Police Station.
58. To the best of our knowledge this was the biggest marine disaster in the country to date. The high number of the dead can be attributed to several factors including:
(b) Panic that followed when the ferry was sinking.
(c) Lack of swimming knowledge on the part of the passengers.
(d) Inadequency of life saving equipment on board the ferry and lack of knowledge on the part of the passengers on how to use the same.
C. General and Particular Matters.
59. The Kenya Ferry Services Limited is a very poorly managed company:
(a) There is no independent board of directors.
(b) There is no clear division of responsibilities among the management.
(c) The salary scales are very low.
(d) Personnel are poorly trained for the nature of responsibility bestowed upon them.
60. We find that the foregoing contributes very heavily to the low morale evident on the personnel of the company.
61. We note that the company earns about Kshs. 4 million per month from motor vehicle toll collection while its monthly expenditure is about Kshs. 8 million. The shortfall is subsidized by Kenya Ports Authority.
62. Witness No.4, F.M. Obudho, The Finance and Administration Manager, Kenya Ferry Services Limited, gave evidence before us. There are no audited accounts since the inception of this company in 1989. Queries have been raised by the Auditor-General Corporations, which have not been properly answered by the Company. We are unable to acquit the Company of this gross violation of accounting discipline. We can only attribute this to inefficiency and cover-up in the accounts department.
63. Before the formation of Kenya Ferry Services Limited, the ferries were operated by Kenya Bus Services Limited. We have evidence from witness No. 32, Mr. Sinclair, that the fleet was appropriate for the two crossings and also that they were all well maintained. There was then a workshop for the maintenance thereof.
64. When the service was taken over by Kenya Ferry Services Limited, there is evidence that the workshop was done away with.
65. There is evidence that the maintenance of the vessels and infrastructure is very poor. This is attributed to:
(a) Personnel observation which we have set out hereinabove
Lack of funds for maintenance.
66. As a result of the foregoing one of the new ferries M.V. Mtongwe II has been grounded for the last one year. (see evidence of witness No.8, Mr. Janoowala).
The New Ferries:
67. There are four new ferries acquired by the Government for Kenya Ferry Services Limited in 1989. These are:
M.V. Mtongwe II
68. There is evidence that the agreement to acquire the said ferries was executed by the vendors and the Ministry of Transport and Communications on behalf of the Government. The agreement was produced as exhibit No. 13.
69. There is no evidence that the operators of the said new ferries ,Kenya Ferry Services Limited, were consulted prior to the acquisition thereof.
70. There is no evidence that there was any feasibility study leading to the acquisition thereof, and in particular, the appropriateness of the use of
the said ferries within the two channels. The Government, the Kenya
Ports Authority and Kenya Ferry Services Limited, were not
represented during the whole period of construction of the ferries by
any marine experts from the country.
71. There is evidence that the four new ferries cost the Kenya Government a sum of about Kshs. 400 million.
72. There is evidence from marine experts – Mr. C.W. Sinclair, witness No. 32, Mr. J. Shiundu, witness No. 40 and Mr. A.J. Kitoyo, witness No. 30, that
the new ferries are unsuitable for plying the two channels. This is
confirmed by the constant stalling of the same midstream.
73. Witness No. 32, Mr Sinclair stated that more appropriate ferries could have been built locally at the cost of Kshs. 50 million each then. He cited M.V. Safina built locally as appropriate and added that 8 ferries could have been built at the said cost.
74. Mr. Shiundu, witness No. 40 also observed that the cost of the new ferries was a “rip-off.”
75. The two witnesses, Mr. Sinclair (32) and Mr. Shiundu (40) are in agreement that the country could have saved Kshs. 100 million had the ferries been built locally.
76. We would observe that, both Mr. Sinclair and Mr. Shiundu are interested parties in ship/ferry building business. They are Senior Managers of a reputable firm called African Marine and General Engineering Co. Ltd. We have however observed the demeanour of the two witnesses before us. They were straight forward, consistent and stood firm in their respective testimonies. We have no doubt that what they’ told the Commission was the truth.
77. By whatever standards, a loss of Kshs. 100 million is a lot of money for a single undertaking of this nature.
78. Despite our concerted efforts, we have been unable to find out how the purchase of the new ferries was conceived and who actually negotiated the same.
79. We are of the view that, whoever negotiated the acquisition thereof had personal interests as opposed to national interests. We recommend that, the Government should initiate steps to investigate the issue with a view to taking appropriate action.
80. The management of Kenya Ferry Services Limited breached the terms of
the agreement of purchase of the new ferries by failing to dry-dock the new ferries after one year from the date of delivery which was provided for in the warranty therein. In effect, the defects which could have been corrected then, were subsequently undertaken by the Company Kenya Ferry Services Limited at the company’s expense. (see evidence of Mr. Janoowala, witness No. 8).
81. The operational costs of the new ferries have continued to soar. The wheel house and Steering mechanism in respect of the three big ferries had to be modified at considerable expense. The ramps had to be modified to accommodate the design of the new ferries also at considerable expense.
82. From the evidence on record, we observe that the maintenance of all the ferries leaves a lot to be desired as evidenced by omission of scheduled dry-docking.
The Kenya Ports Authority:
83. The Kenya Ports Authority was mandated by the Government to operate the ferries across both Likoni and Mtongwe crossings by letter from the Ministry of Transport and Communications dated 7th September, 1989, produced as exhibit No. 9. It was clearly stated that Kenya Ports Authority should form a Subsidiary Company to run the ferries.
84. As at the date of giving the foregoing instructions, Kenya Ports Authority owned a company called Bunty Estates Limited. We have evidence of Mrs. E.W. Kabiru, witness No.2, that because of the urgency of the matter, Bunty Estates Limited was changed to Kenya Ferry Services Limited to run the ferries.
85. Some Senior Management personnel from Kenya Ports Authority were seconded to form the Board of Directors of Kenya Ferry
Services Limited as the Government had to make a decision on the Board of Directors and shareholding of the company. To-date, the Government has not made any decision on the foregoing.
86. We wish to observe that due to the Government indecision, the management of the company has been very ineffective.
87. We appreciate the difficult times under which the company .- Kenya Ferry Services Limited – has been operating. Nevertheless, we believe that, had there been clearcut policy of its operations, that situation could have been checked. In this regard, we must commend the General Manager, Mr. B.O. Ongola, witness No.1, for his commitment to the company even against very strong tides from external forces. He appeared to us to be an honest man who, if given a free hand, could transform the company into an effective public service.
88. The vessels operated by Kenya Ferry Services Limited are licensed to operate on our waters by the Merchant Shipping Superintendent.
89. It has been a practice to take out insurance cover for the vessels. The premiums were being paid by Kenya Ports Authority on behalf of Kenya Ferry Services Limited. This is borne out by the evidence of witness No. 2, Mrs. E.W. Kabiru, witness No. 37, W.N. Dambya and witness No. 38, J.M. Mworia.
90. We note however, that the payments of the said premiums were made irregularly on cover notes as opposed to policies. There were no valuation reports of the vessels and infrastructures covered.
91. The Kenya Ferry Services Limited Insurance Cover was done without much study of the services offered. Failure to maintain the vessels in a proper form jeorpadised their insurability. The Insurance brokers displayed lack of expertise in marine matters.
92. The Insurance Policy No. 097786J produced as exhibit No. 58 was issued on 3rd May, 1994 to cover a period of one year running from 1st July 1993 to 30th June, 1994. Mr. Mworia, witness No. 38 and Mr. Njuno, witness No. 42 admitted that the same was issued in a hurry.
93. We note that Mr. Mworia is in charge of Insurance matters at Kenya Ports Authority while Mr. Njuno is a Director of Junni Insurance Brokers Limited – one of the Insurance brokers retained by Kenya Ports Authority.
94. Exhibit No. 58 – The said insurance policy, was not relevant to the subject matters it was supposed to cover:
(a) It covered fare-paying passengers which was not the case with services offered to passengers across the two crossings.
(b) It covered palleted cargo which is not carried by ferries operated by Kenya Ferry Services Limited.
(c) It provided for classed ferries while there was evidence that this was not the case with some of the said ferries.
(d) The conditions imposed for indemnifying both the company and passengers were oppressive. For example, in respect of any liability, loss, costs or expense the assured shall first have to discharge or pay such liability, loss, costs or expense out of its own funds and without recourse to any loan.
(e) Premiums were based on casual valuation of the vessels and infrastructure not supported by any reports.
(f) As a result, the values were fixed at will and in most cases appreciated on each succeeding year. The incidental effect was that higher premiums were paid and hence commissions to Insurance Brokers increased.
95. We are unable to avoid the inescapable conclusion that the omissions and actions as relating to values and premiums were to facilitate increase in commission margins.
96. .The above state of affairs would not have happened had the Kenya Ports Authority management taken the issue of insurance seriously by having the right officers to deal with insurance matters.
97. Our reading and understanding of the Kenya Ports Authority Act,Cap.301 Laws of Kenya and in particular Section 8 and 12 thereof makes us believe that it is the responsibility of Kenya Ports
Authority to construct and maintain the infrastructure utilised by Kenya Ferry Services Limited.
98. This Commission had the opportunity to visit and inspect the jetties at both sides of Mtongwe crossing. The jetties, walkways and pontoons were a sorry sight for facilities meant for use by the thousands of people in a day:
They were flimsy in construction
The pontoons were very corroded and without fenders.
Some wooden planks were missing and some were rotten.
There were no sheds
The jetty concrete on the mainland side was collapsing.
The path leading to the jetty on the island side was very narrow
And subject to Land slide.
102. There is evidence that there is a marine wing Of the Port Police with properly trained officers. They are however very few. They are not properly equipped to police the waters as required.
103. The duties of regular police and marine police should be properly defined.
104. The evidence of Dr. E.M. Getambo, witness. No. 33, Dr. E. Mkuzi, witness No. 34 and that of Dr. K.C. Mandalya, witness No. 35 shows that the Coast General Hospital, which is the biggest hospital in the Coast Province is not adequately prepared for a disaster of the magnitude of the ferry accident:
(a) There is an acute shortage of drugs.
(b) Inadequate transport facilities.
(c) Inadequate mortuary facilities.
105. There was evidence however that staff mobilisation and response was good at the hospital.
The South Coast:
106. It is common knowledge that the South Coast of Mombasa boasts of some of the best Tourist Hotels in Kenya. Thousands of tourists flock to this destination yearly and the foreign exchange earned as a result enhances the economy of our nation.
107. It is also common knowledge that the South Coast is endowed with some of the best agricultural land in the Coast Province. The Horticultural products and bixa produced there find their way to other markets through Mombasa. It is also a very potential Industrial environment.
108. We also know that the Mombasa-Lunga Lunga Road leads to the Republic of Tanzania making it one of the most important gateways from our country.
109. The only link from Mombasa Island to those extremely vital areas is the Ferries now under spotlight.
110. The Government has in the past commissioned reputable internal firms to study the possibilities of constructing a permanent link between Mombasa Island and the South Coast. These are Japan International Corporation Agency, Sir Alexander Gibbs Partners(Africa) and Japan Engineering Consultants Co. lAd. We also note that qualified Kenyans participated.
111. Mr. K.M. Kithyo, witness No. 44 gave evidence and produced exhibit No. 74(a)(b)(c) being reports compiled from the said studies.
112. As early as 1984, it was recommended that a bridge be constructed across the Likoni crossing. Another alternative was a construction of a bridge across the Port Reitz crossing near the old airport.
113. We received communication from Mr. Joshua Mwenda, the Chairman, Kenya Association of Hotel Keepers and Caterers, who is also the General Manager, Leopard Beach Hotel. For purposes of record we set out here in below the sentiments of his association. He said:
‘For many years, our Association has been pressing for a permanent solution for the traffic to the South Coast and we feel a bridge (causeway) linking the South Coast and Mombasa is the best solution. There has been a proposal of building a causeway across Likoni Channel after the Navy Base (Port Reitz (sic) so that the South Coast traffic will approach Mombasa from Changamwe. This route will reduce the Traffic to town as those going to the Airport will avoid the Island and those driving from the South Coast to Nairobi will also avoid the Island hence reducing the long queues at the ferry and congestion in the Island. This route is very important for us in the South Coast as we waste a lot of money and time waiting at the Ferry and will also open markets for the rich agricultural land in Kwale and establish Industries in the idle land in the South Coast.”
114. On our part, we unequivocally agree that a permanent solution alternative to the ferries is necessary. We believe that the Government is still determined to fulfil the recommendations contained in the said reports. We urge that this be done to alleviate the plight once and for all.
115. One matter that has weighed very heavily on our minds all through these proceedings relates to apportioning of liability and compensation incidental to the tragedy. We have given this considerable thought but refrained from making a finding thereon in view of the imminent legal proceedings that may or are likely to be instituted.
116. As we rest our heads and lay down our pens in relation to our assignment, we believe we have addressed the terms of reference conclusively.
1. Mtongwe Ferry Services should be resumed immediately after the current jetties are overhauled and/or repaired.
2. We consider that the Company (Kenya Ferry Services Limited)
undertakes essential services. We recommend that funds should immediately be injected into the Company to sustain its services.
3. The Kenya Ferry Services Limited should be restructured and be independent in practical terms:
– It should run all the ferries in the country.
– Its management should be completely delinked from Kenya Ports Authority.
4. To ensure the correct number of passengers board any motor vessel, we recommend the installation of turn-stile counting devices at the end of each walk way on both channels – Likoni and Mtongwe.
5. We recommend that all ferries should be equipped with effective public address systems.
6. We recommend the improvements of the existing infrastructure at both channels (Likoni and Mtongwe)by providing shelter for pedestrians and double walkways (gangways) to provide for incoming and out-going passengers. Pedestrians should be separated from motor traffic.
7. Police officers should be attached to the ramps and jetties at all times to assist in crowd control.
8. Having noted the poor state of the operations of the 4 new ferries -we recommend that a crash programme be initiated immediately to train the ferry operators.
9. Coxswains should be given more powers. We recommend the repeal of the Ferries Act Cap 410 and recommend adoption of the Tanzania Ferry Act Cap. 173 with particular reference to the Magogoni Ferry Regulations.
10. Having confirmed the culture of human defiance among the users of the ferries, we recommend the creation of awareness of the dangers by way of notices, mass communications, etc.
11. Kenya Ferry Services Limited should be run by competent and qualified personnel:
– Salary structures should be revised upwards to give• motivation and morale among the workers.
– Their welfare should be enhanced.
12. The requirements of the Ferries Act in respect of notices both on board the motor vessels and walkways must be strictly adhered to.In addition life saving appliances should be provided on jetties, ramps and pontoons.
B. Long Term:
1. As a long time measure, a bridge across either the Likoni channel or near the old airport – Port Reitz – is of necessity.
2. We recommend that our hospitals all over the country be equipped with proper facilities to deal with any disaster. This also goes for the administration.
3. To control the movements of the Ferries to keep them clear of the shipping channel and out of approach of ships plying the Kilindini Harbour, a marine traffic control system should be introduced by the Harbour.
4. There is need to establish the position of a safety officer to the Company (Kenya Ferry Services Limited).
5. We recommend the increase of vessels to ply both channels with emphasis on quick turn round, short transit time and volume. This may require double ramps at the end of both channels.
6. In addition to the jetties at the Island and Mainland of Mtongwe channel, we recommend the construction of ramps like those now existing at Likoni channel.
7. The maintenance of the vessels and infrastructure should be improved and be on schedule.
8. Marine Police should be increased and properly trained, and include a life boat rescue unit.
9. Qualified insurance personnel should be engaged by both Kenya Ports Authority and Kenya Ferry Services Limited.
10. Safety drills should be encouraged on a routine basis.
11. Proper feasibility study must be undertaken before any project is accepted.
12. Kenya Ports Authority should be equipped with proper salvage equipment.
THE COMMISSION OF INQUIRY ACT CAP. 102
LAWS OF KENYA COMMISSION OF INQUIRY
RULES AND PROCEDURE
This Commission of Inquiry has been convened pursuant to its
appointment to inquire into the circumstances surrounding the Mtongwe Ferry Disaster on 29th April, 1994 as stated in Gazette Notice No. 2694 published on 10th May, 1994.
The Commissioners make the following rules for the conduct and management of the proceedings of the Inquiry under Section 9 of the Commissions of Inquiry Act.
1. The Attorney-General appears amicus curiae.
2. Subject to Section 9 of the Act the Commission of Inquiry shall sit on working days at 9.00 a.m.
3. The Commissioners may direct that the public shall not be admitted to all or to any specified part of the proceedings of the Inquiry, and subject to any such direction, the Inquiry shall be held in public, but the Commissioners may exclude any person or class of persons from all or any part of the proceedings of the Inquiry if satisfied that it is desirable so to do for the preservation of order, for the due conduct of the Inquiry, or for the protection of the persons, property or reputation of any witness in the Inquiry or any person referred to in the course of the proceedings thereof, and may, if satisfied that it is desirable for any of the purposes aforesaid so to do, order that no person shall publish the name, address or photograph of any such witness or person or any evidence or information whereby he would be likely to be identified and any person who contravenes such an order shall without prejudice to Section 121 of the Penal Code, be guilty of an offence and liable to a fine not exceeding two thousand shillings.
4. Without the leave of the Commissioners no evidence shall be adduced in public to the Inquiry concerning or relating to any matter prejudicial to the security of the State or the Head of State.
5. Kenya Ferry Services Limited and/or Kenya Ports Authority shall be entitled to be represented by an advocate in the proceedings of the Inquiry.
6. Any person who is in any way implicated or concerned in any matter under inquiry shall be entitled to appear either in person or be represented by an advocate and may adduce material evidence in his/her behalf in connection with the matter under Inquiry.
7. Any person who desires to be so represented may, by leave of the Commission, be so represented.
8. The Counsel assisting the Inquiry will present evidence relating to the Inquiry referred to in accordance with the Terms of Reference.
9. The Counsel assisting the Inquiry will warn the witness that after examination-in-chief, he/she may also be cross-examined by him.
10. The Commissioners shall have the powers of the High Court to summon witnesses, and to call for the production of books, plans, reports and documents, and to examine witnesses on oath.
11. The Commissioners may summon the Chief Executive of Kenya Ports Authority and Kenya Ferry Services Limited or any other officer of the Corporation or Company to testify on oath and may call for the production of books, plans, reports and all other documents that the Commissioners may require.
12. The Commissioners may call expert witnesses from inside and outside the Authority to adduce evidence on any matter before them
13. The Commissioners may call for any further evidence on any point relating to any matter before them and may recall any witness for further examination.
14. Oral evidence shall be adduced by the question and answer method.
Dated at Mombasa this 10th Day of May, 1994.
HON. JUSTICE A. MBOGHOLI MSAGHA
COMMISSION OF INQUIRY
COAT OF ARMS
MTONGWE FERRY ACCIDENT ON 29.4.94
This is to notify the general public that pursuant to Section 3(1) of the Commissions of Inquiry Act (Cap. 102) His Excellency, President Daniel T. Arap Moi, C.G.H., MP and Commander in Chief of the Armed Forces has constituted a Commission of Inquiry to probe Mtongwe Ferry Accident which occurred on the 29th April, 1994.
The Commission has now started its work and is based at BANDARI COLLEGE, Bandari Road, Near Mtongwe Ferry stage, off Moi Avenue, Mombasa. The Commission invites members of the public who might have relevant information on Mtongwe Ferry accident-to record such information with the Commission’s officers stationed at Bandari
College or mail such information to the Joint-Secretaries,. Mtongwe Ferry Accident Commission of Inquiry, P.O. Box 86493, MOMBASA.
IN THE MATTER OF COMMISSION OF INQUIRY INTO
MTONGWE FERRY ACCIDENT OF
FRIDAY. 29TH APRIL. 1994
ATTORNEY-GENERAL’S OPENING ADDRESS AT THE
OFFICIAL INAUGURATION OF THE COMMISSION AT
THE BANDARI COLLEGE MOMBASA ON MONDAY, 23RD
May it please you my Lord Chairman, Mr. Justice A. MbogholiMsagha and Honourable Commissioners Maj-Gen. (Rtd) Eliud S. Mbilu, Maj. (Rtd) Dr. Joseph M. Njokah, Lt. Col. (Rtd) Harjit Singh Kelley and Lt. Col. (Rtd) Lugard Nzeki: I appear before you, amicus curiae, on behalf of the Republic.
It is my honour and privilege to welcome this Commission and initiate the commencement of its business.
You, my Lord Chairman are an eminent Judge. Both at the Bar and on the Bench you have handled many accident and insurance claims. I have no doubt in my mind that you will be able to guide the inquiry to proceed in accordance with the law. Sitting beside you are four other Commissioners who bring with them to the inquiry other talents and experiences: Commissioner Maj-Gen. (Rtd) Eliud Mbilu is a retired Kenya Navy Commander; Commissioner Maj. (Rtd) Dr. Joseph Njokah is a specialist surgeon in Marine Medicine; Commissioner Lt. Col. (Rtd) Harjit Kelley is a former Fleet Commander of the Kenya Navy, trained diver, specialist in hydrographic surveys, expert in handling ships of various sizes and has handled a number of rescue missions while Commissioner Lt. Col. (Rtd) Lugard Nzeki is a qualified marine engineer (ship building and naval architecture, engine propulsion, underwater and general welding and design of ships). The aforesaid talents and experiences of the five Commissioners will no doubt greatly enrich the deliberations of the inquiry for the benefit of all. My Lord Chairman and Honourable Commissioners I share the confidence reposed in you by His Excellency The President in appointing you to this Commission of inquiry and trust that you will do due justice to your appointment.
To assist you in the onerous but noble task subject matter of the inquiry, His Excellency The President has appointed an able administrative officer, Mr. Wachira Gitahi and an able lawyer, Mr. John Omo as Joint Secretaries; and two distinguished counsel, Messrs Joseph V. Juma who is an eminent Advocate and one of the few with a Diploma in Shipping and Duncan Mwanyumba who has had experience as Assisting Counsel in the Ouko Commission of Inquiry. All these gentlemen will, I am sure, put their combined talents at your disposal to facilitate and expedite the inquiry.
Your first task is to assemble relevant evidence from witnesses to the accident and experts on the issues subject matter of the inquiry; then subject that evidence to meticulous scrutiny and determine its probative value, with a view to drawing there from conclusions as to what it establishes in law and thereafter recommend appropriate action to be taken. In this process the Commission is at liberty to use experts in various fields relevant to the inquiry. If at any time you consider that such experts as you deem necessary in carrying out your mandate need a formal appointment do not hesitate to let me know.
The Bandari college has provided you with the facilities you require to enable you to undertake this task with all due speed and efficiency. My Office will, all the time, be available to assist you in any way you may wish to be assisted.
My Lord Chairman and Honourable Commissioners, your appointment and that of the Joint Secretaries and Assisting Counsel has been made by His Excellency The President under Section 3 of the Commissions of Inquiry Act as shown in Gazette Notice Number 2694 dated 8th May, 1994. The task before you is an inquiry and its Terms and Reference are set out in sister Gazette Notice Number 2695 also dated 8th May, 1994. These are:
(a) To inquire into the ~circumstances surrounding the ferry accident at Mtongwe, near Kilindini Harbour on the morning of Friday, 29th April, 1994;
(b) To inquire into the loss of life or injury occasioned to passengers by reason of the accident and into all relevant particulars thereof;
(c) To make practical immediate and long-term recommendation on how such accidents can be avoided; and
(d) To inquire generally or in particular into any other matter pertaining to the above; and in accordance with the provisions of Section 7(1) of the said Act, to report thereon.
My first duty is to formally present to you the instruments appointing the Commission, namely: Gazette Notice Number 2694 dated 8th May, 1994, Gazette Notice Number 2695 dated 8th May, 1994 and the signed instrument which I hereby lay on the table.
The accident, subject matter of the inquiry is an event which has occasioned considerable sadness and concern not only to relatives and friends of the victims but also to Kenyans generally. You will, no doubt, as it is your duty so to do, go into every aspect of the matters you have been directed to investigate under the terms of your appointment. All Kenyans will be waiting anxiously to hear and know the results of your deliberations and the conclusions thereof.
You will be at liberty to summon whomsoever you wish to testify before you, to enable you to discharge your duty to arrive at the truth. The rules of natural justice demand that whoever may be adversely affected by evidence adduced before the Commission should be given an opportunity to testify before the Commission and call evidence in his own behalf. All witnesses may be examined or cross-examined by counsel as appropriate.
You will be at liberty to adjourn from time to time as exigencies require and reassemble as may be convenient to you and all the parties concerned. Cognisance ought to be taken, however, of His Excellency The President’s wish that the inquiry be undertaken with all diligence and speed and for a report to be made without undue delay. It is therefore my wish that you proceed from day to day until you finish your onerous task.
The press will no doubt be covering this inquiry. I w appeal to them to report the proceedings of the inquiry objectively and responsibly; and to avoid sensationalising subject matter of the inquiry. The press owe this not only the public but also to the State.
My appeal to the people of Kenya is to avoid gossip and wait the outcome of the inquiry. They should continue with their normal duties and leave the Commission to do its duty without interference absolutely important that there should be no pressure on the from any quarter.
Lastly, let me take this opportunity to call on men public and public servants who have information which would in any way assist the Commission to come forward and place it Commission through the office of the Assisting Counsel an~ to the Commission.
To you, my Lord Chairman and Honourable Commissioners, I would emphasize that you should feel free to express your findings in your report without fear or favour, in the full knowledge that the mission that you are undertaking has the full backing and support of the Government and is in the interests of the people of Kenya. The loss of even one Kenyan through any accident, which means through a person’s action or inaction, is a matter of grave concern to the Government and the Nation. Whatever recommendations you make on how such accidents can be avoided in future will be of interest and relevance not only to the users of ferry services but to all Kenyans since in one way or another every Kenyan makes use of transport services, be they on bicycle, motor vehicle, train, aeroplane or just as a pedestrian on our roads.
I take this opportunity to wish you every success in your undertaking and reiterate that, as amicus curiae, I am at your disposal at any time should you require my assistance in the discharge of your Terms of Reference.
(S. Amos Wako) EBS, EGH, MP
ATTORNEY – GENERAL
STATE LAW OFFICE
P.O. Box 40112,
CHAIRMAN’S CLOSING ADDRESS
The public hearing of this Inquiry was officially initiated by Hon. Attorney-General, S. Amos Wako, EBS, EGH, MP on 23rd May, 1994. On behalf of my fellow Commissioners and myself, I deem it my duty to express to him our profound gratitude for the interest he has shown in this inquiry.
His encouraging remarks and observations and the pledge of support by the Government were very inspiring.
The team spirit of this Commission came into light at the outset, and, for the total period that we have received evidence in these proceedings nothing has taken place that adversely affected our endeavour to live up to our expectation.
As would be expected in a tragic occurrence of this magnitude, there appeared to have been some apparent withholding of information by some witnesses called to testify. However, on our assurance that nobody or institution was on trial and that ours was not a witchhunting exercise, such reservations were whittled.
We believe that we have sufficient material before us which we shall hereinafter consider with all fairness in addressing conclusively the Terms of Reference. As we retire to write our report it is our conviction that we have summoned into play our best faculties individually and collectively.
A word of commendation must be extended to the Counsel assisting the Commission and those for the respective parties herein. The wit and precision with which they conducted their briefs and the decorum displayed in the course of the proceedings made the sailing smooth.
Having said as much, we now rise as I declare this inquiry formally closed.
HON. MR. JUSTICE A. MBOGHOLI MSAGHA
MTONGWE FERRY ACCIDENT
COMMISSION OF INOUIRY
LIST OF WITNESSES
1) Mr. Benjamin Odera Ongola General Manager,
Kenya Ferry Services Ltd.
2) Mrs. Enice Wangui Kabiru Corporation Secretary,
Kenya Ports Authority
3) Mr. Simeon Mwero Mkala Manager, Finance Division Kenya Ports Authority.
4) Mr. Fred Mob Obudho Finance & Administration
Manager, Kenya Ferry Services Limited.
5) Mr. Jacob Makau Manager, Technical
Services Division Kenya Ports Authority.
6) Mr Antony Dosho Madzungu Assistant Operations
Manager, Kenya Ferry Services Limited
7) Mr. John Chege Nyanjui Deputy Ferry Engineer
Kenya Ferry Services Ltd
8) Mr. Sajjad Hussein Sefudin Janoowala Ferry Engineer,
Kenya Ferry Services Limited.
9) Mr. Mohammed Abdalla Kaka Coxswain, Kenya Ferry Services Limited.
10) Mr. Mohammed Au Masa Coxswain, Kenya Ferry
11) Mr. Mohammed Au Masa Coxswain, Kenya Ferry
12) Mr. Hamisi Hussein Mwajuma Coxswain, Kenya Ferry
13) Mr. John Rocky Masaka Mechanic, Kenya Ferry
14) Mr. Julius Mwanzi Muli Mechanic, Kenya Ferry
15) Mr. Ramadhan Mwinyi Mwakinyezi Coxswain, Kenya Ferry
16) Mr. Arthur Mwambui Mbui Kenya Navy.
17) Sgt. Peter Mnyambala Kenya Navy.
18) Sgt. Meshack Onzere Lundu Ferry Guard, Kenya Ferry
19) Mr. Jairus Murunga Ferry Guard, Kenya Ferry
20) Miss Jeniffer Ruth Mwanyiro A Survivor.
21) Mr. Kyabo Muli A Survivor.
22) Miss Beatrice Muthoki A survivor
23) Mr. Francis Mutuiri Kiambati A Survivor
24) Mr. Mohammed Kusema Kumenzwa
25) Maj. Henry Rohara Nyambok Kenya Navy
26) Mr. John Lwigi Antony Managing Director, Divecon.
27) Mr. Vincent Mnyika Wa-Kayanda Principal Personnel and Welfare Officer, Kenya Ports Authority.
28) Chief Inspector Festus Kyalo Muthiani Officer in Charge of the Station, Port Police
29) Inspector Samson Kyalo Nzioka Coxswain, Marine Police.
30) Capt. Andronicus J. Kitoyo
Manager, Marine Operations Kenya Ports Authority.
31) Fredrick Ouma Wahutu Marine Captain, Kenya Ports Authority.
32) Mr. Andrew Carthcat Willuns Sinclair
Managing Director, African Marine & General
33) Dr. Esther Muthoni Gitambo Ag. Chief Administrator, Coast General Hospital.
34) Dr. Elija Mukuzi Provincial Surgeon, Coast
35) Dr. Kishore Narsish Mandalya Provincial Pathologist, Coast General Hospital.
36) Capt. Sammy Saina Clinical Officer, Kenya Navy.
37) Mr. Dambya Wamu Mirega Insurance Officer, Kenya Ferry Services Limited.
38) Mr. Stephen Mworia Mbuthia Insurance Officer, Kenya Ports Authority.
39) Supt. Dominic Ogallo Babu Deputy CID Officer, Railways & Port Nairobi.
40) Mr. Juvenal Joseph Muka Shiundu Naval Architect, African
Marine & General Engineering Co. Limited.
41) Supt. Wilson Njoroge CID, Kenya Police
42) Mr. Phinehas Njeru Njuno Insurance Broker, Junni Insurance Brokers.
43) Mr. John Herbert Norman McMurren Loss adjuster and Surveyor
44) Mr. Kata Matemu Kithyo Provincial Works Officer,
45) Mrs. Eunice Wangui Kabiru (Recalled to produce a file)
Corporation Secretary, Kenya Ports Authority.