Charles Kanyi Njagua v Nairobi County Government & Governor of Nairobi [2018] KEHC 7736 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO. 27 OF 2018

IN THE MATER OF AN APPLICATION FOR JUDICIAL REVIEW   ORDER OF CERTIORARI AND MANDAMUS

AND

IN THE MATTER   OF THE DECISION  MADE BY THE COUNTY  GOVERNMENT  O NAIROBI  TO ISSUE  A BAN OF  THE  FERRYING OF  PASSENGERS  ON MOTOR CYCLES  IN AND OUT  OF NAIROBI CENTRAL  BUSINESS  DISTRICT  KNOWN AS  THE  “BODABODA  BAN”

AND

IN THE MATTER  OF  THE IMPOUNDING   OF MOTOR CYCLES IN NAIROBI  CENTRAL BUSINESS  DISTRICT  AND  ARRESTING   OF MOTOR CYCLISTS  PURSUANT  TO THE  “BODABODA  BAN”

BETWEEN

CHARLES KANYI NJAGUA………………….........APPLICANT

-VERSUS-

NAIROBI COUNTY GOVERNMENT…...….1ST RESPONDENT

GOVERNOR OF NAIROBI ………………..2ND RESPONDENT

RULING

1. By a chamber summons dated 24th January 2018 the exparte applicant Charles Kanyi Njagua seeks from this court leave to apply for the following orders:

1. Certiorari to quash the  notice  and  decision  made on the  22nd January 2017 by the respondents Nairobi County Government and the Governor Nairobi to ban the ferrying  of passengers on motor cycles in the Nairobi Central Business District herein after referred to as the  ‘Boda boda ban.’

2. Mandamus  be issued  to compel the respondents  to release  the motor cycles  they have  impounded and motor  cyclists they have  arrested  pursuant  to the ‘boda boda ban’.

3. The grant of leave to apply for the Judicial Review orders sought herein do operate as a stay against   the respondents, their agents and servants from implementing and or proceeding on with the said decision made on 22nd January 2018 to ban the ferrying of passengers on motor cycles in the Nairobi Central Business District and to stop any inference with their ordinary mode of business.

4. Costs of this application and requests for review be awarded to the applicant to be paid by the interested parties (sic).

2. The chamber summons is predicated on the statutory statement and verifying affidavit sworn by the applicant Charles Kanyi Njagua.

3. The exparte applicant’s case is that he is an elected Member of Parliament for Starehe Constituency in Nairobi County.  That on 22nd January 2018 the respondents  issued a ban  on ferrying  of  passengers  on motor cycles in Nairobi Central Business District  popularly known as  the  ‘boda boda ban,’ on account that there was rampant  and  raising rates of  crime perpetrated  and  or aided  by criminals  on motor cycles.

4. It was alleged that the decision to ban the ferrying of passengers on motor cycles in the Nairobi Central Business District was unilaterally made by the respondents and without any consultations of the key stakeholders.

5. The applicant claims that the decision  to ban the  boda boda  riders  is ill informed  and  unproportioned  as the  acts of some  individuals  should not be  visited upon the  rest generally as this is equivalent  to issuing of  blanket  blame.

6. According  to the applicant, the ‘boda boda ban’ may  result  in a rise  in crime  as the ban strips many  individuals  and families  of their source  of livelihood  and may  therefore  lead  to those  individuals  resorting  to crime for survival  due  to frustrations.

7. Further, it is claimed that on 23rd January  2018, the  respondents  impounded  motor cycles and arrested cyclists in the Nairobi Central Business District (NCBD) pursuant to the ban  which actions, in the applicant’s view, are  curtailing  the  economic  rights of the many citizens who rely on the ferrying of  passengers  on motor cycles in the City Centre of Nairobi as a source of livelihood  hence the orders sought should be granted as the ban  has caused  a public outcry due to loss of livelihood.  The applicant annexed  to the application a faint newspaper ( Daily Nation copy of Wednesday January 24th, 2018 titled “Sonko kicks boda bodas out of CBD)” and a further annexture  CKNI, is an enlarged version  of the said newspaper publication.

8. The respondents filed  grounds of  opposition dated  30th January  2018 and filed on  the same  day  contending  that the subject  matter herein  is Resjudicata, as the same was previously litigated  against  the respondent  and  conclusively  determined  by this court vide Petition No. 521/2015 in City Riders Sacco & 11 Others vs County Government of Nairobi & 3 Others [2016]e KLR and  Nairobi JR Miscellaneous Application No. 553 of  2016, County Government  of Nairobi & 2 Others Exparte  Boda boda Welfare Association suing through its Chairman Kimani Wa Nduthi [2016] e KLR; that the application is  incompetent and  fatally defective in so far as it purports to seek the prayer  for certiorari  yet it  fails to  demonstrate  the decision  sought to  be quashed;

9. It was contended that the applicant had not demonstrated that he has an arguable case which should warrant the issuance of the orders sought.  Further, that the application  is abstract, vague and fails  to illustrate  the legal and factual threshold for grant of the orders sought; that the  subject of the application  flies in the face  of the Section  118 A of the Traffic Act Cap 403  of  2014   which confers on the 1st respondent power to make laws to regulate taxi cabs and by extension motor cycle  taxi  and  hence grant of  leave to institute  Judicial Review  is frivolous, ineffectual and  contrary  to public  policy.  Finally, it  was  contended  by the respondents that the application  is contrary  to the overriding  objective  of the court, waste of  judicial time and  otherwise an abuse of court  process  and the same   should  be dismisses  with costs.

10. The respondents  also filed a replying   affidavit  sworn  by Leboo Ole  Morintat, the Acting  County Secretary of the Nairobi County  Government  reiterating  the grounds  of opposition and  adding that on 11th November  2015  the  1st  respondent issued a notice  through  the  National Daily Newspapers  titled  “Ban of motor cycles (Boda boda) operators from Central Business District,” as shown  by an annexed  copy of the  notice banning all motor cycle operators  ferrying  passengers  to and  from  the  Nairobi Central Business District from continuing  with such  operations.  That  following the said  ban, the affected  operators filed Petition No. 521/2015(supra) and also sought  for conservatory  orders  which application  was dismissed  and  the main Petition( as per annexed  judgment) was also dismissed  on 31st  October  2016, which judgment  was neither set  aside nor vacated.

11. That again on 30th May 2017 this  court rendered  a judgment  in Nairobi HC JR Miscellaneous No.553/2016(supra) over the  same subject matter  which judgment  has never  been set  aside  or renewed and that the judgment is over the same subject  matter.

12. That despite the notice issued in 2015 the motor cycle  operators  have continued to carry out their businesses in the Central Business District with impunity  and  blatant  disregard  of  the law hence  the  notice of 22nd January  2018  was just, in addition to the notice issued on  11th November 2015 reinstating  the  respondent’s  stand on ferrying   of passengers  within the  Central Business District by  motor  cyclists, which notices  the  1st  respondent  has a mandate  to issue, to regulate traffic  with the Central Business District.

13. It was further contended that the court having already deliberated on the issue on whether  motor cyclists  should be allowed  to operate within the Central Business District, the same issue cannot be reopened  by filing  a new suit  and  without  disclosing  the previous   suit on the  same subject matter.

14. Further, that nonetheless, the  ban is in  the  public interest  because of  immense  confusion  created  to both  pedestrians and  other car  drivers  in that  many  pedestrians  have been knocked  down  by motor cycle  riders  who blatantly fail to observe traffic  rules and regulations; that there  have been  incidences  of criminals  using  motor cycles  to commit crime  within  the Central Business District and take off;  that there  has been increased air  and noise  pollution within the Central Business District as  motor cycles  are noisy  and often  make lives  of those  who operate  within the Central Business District unbearable due to  the   noise of their engines; and that by issuing  the notices,  the  1st  respondent  has been  performing  its functions under  the law  by regulating  transport  in the County  and in  accordance  with paragraph  60  of the decision in Petition No. 521/2015.

15. The respondents  further contended that they  were not  aware of  any motor cycles  which had  been impounded  or any motor  cyclist  who had been unlawfully  arrested  by the agents  of the  1st respondent County Government, and that no particulars  or evidence of  such actions  had been  supplied to  this court.

16. Further, it was contended that albeit the applicant was a Member of Parliament, he had not stated how he had been affected by the ban and that neither had he disclosed  any specific  persons  who had been affected by the ban hence  the public  interest militates  against  grant  of the  orders  sought  as the same  if granted  would prejudice millions of Kenyans who have suffered  inconvenience  brought  about  by motor  cycle  operators in the City’s CBD.

17. It was further deposed in contention that the ongoing relocation of motor cyclists from the CBD was going to affect other traders including hawkers hence it was not true that only motor cycle operators are being targeted.

18. It was therefore contended that the applicant had not  demonstrated that he had a prima facie arguable  case to merit  grant  of the orders sought  and therefore  this court  was urged  to dismiss the application for leave  and stay for being  vexatious and  waste of judicial time over  the same  subject  matter  which  the court  has on previous  occasions  rendered  itself.

Oral Submissions

19. The parties’  advocates  urged the  application  orally with Mr  Okatch  counsel for  the  applicant  submitting  that there  was no consultation  with the  applicant  or motor cycle  riders  before the ban  was issued.

20. Further, that this  was not the first time  the  County Government  had banned  the riders  from the Central Business District but that  the respondent  having allowed the riders to operate  within the Central Business District without interference, and  without  charging  them with  any offence, it is  the duty  of the court  to curb haphazard  implantation  of decisions  that do not  afford  parties  any  notice.  That  it  is only humane that the applicants are given notice  hence they  should  be granted  leave to  ventilate  their grievances.

21. In opposition to the application, Miss Gladys  Mwangi counsel for the respondents submitted on behalf  of the respondents, quite  vigourously, contending on behalf of her clients that this  application  is an  abuse of the  court process  because  this matter is  Resjudicata  Petition  No. 521/2015   which  concerned the  same parties /applicants who are now litigating under the Starehe  member of  Parliament. That in the previous Petition No. 521/2015  the applicants motor cyclists challenged  the  notice of  11th November 2015  but that  the court  declined  to issue any conservatory orders and finally when the  full decision was rendered, the court found that the 1st respondent had jurisdiction to regulate transport within the Central Business District.

22. Further it was submitted that in 2016 vide JR No. 553/2016, the same group filed a Judicial Review matter which Odunga J dismissed for being Resjudicata.

23. Counsel for the respondents charged  at the applicant for  failure to disclose  the  above  material  facts of  previous similar  litigation  affecting  the same people.  She relied on the case of James Muiruri  Gichango  vs  Resident Magistrate  Mavoko  Law Courts  on the need to demonstrate good faith.

24. Further reliance was placed on JR 435/2017 Republic vs Kenyatta University & Muema vs Exparte Awersome Kenya Ltdon the importance of seeking leave and argued that this application is not arguable.

25. Further, it was argued that there  is no evidence  of impounding  motor cycles  or arrests  and  that newspapers  cuttings  are not  decisions for  filing  of Judicial Review  proceedings.

26. The respondent’s counsel further submitted relying on Republic vs County Assembly of Nakuru & 2 Others exparte Samuel Waithuko Njanne & 21 Others(where the court held that failure to annex the impugned decision was fatal.

27. It was  further submitted that the applicant Member of Parliament had not  disclosed  who he  was acting  on behalf  and  how he  had been affected  by such alleged  directives.

28. Relying on Republic  vs Kenya  Revenue  Authority  Exparte  Paul Makokha  Okoiti[2016] e KLR it  was  submitted that  multiplicity  of suits  amounts to  abuse of court  process and  waste  of judicial time.

29. In  a rejoinder, Mr  Okatch counsel for the applicant  submitted that the parties  to this  litigation are different because the earlier pleadings were through a petition whereas  this is a Judicial Review  application and  secondly that  his client  is protecting  economic  rights  of his constituents  as their Member of Parliament.

30. On non-disclosure of previous litigation,   it  was submitted  that the   applicant   was not  a party to the earlier  proceeding and  that his client  had an  arguable   case because  the  subsequent impugned decision was made without  notice to  the applicant  and the riders  who are allowed to operate  in the City  and  who must  therefore  be given  time to  vacate the CBD.

31. It was urged that this was a matter of public notoriety yet no notice was issued by the respondents.

DETERMINATION

32. I have carefully and conscientiously considered the applicant’s application for leave and stay.  I have  also considered the opposition  by the respondents  and their  respective  advocate’s  submissions for and  against  the  application  and the authorities  cited.

33. The main issues for determination in this matter are:

a. Whether failure to annex the impugned decision is fatal to the application for leave?

b. Whether  the application  is  Resjudicata previous decisions in Petition No.  Petition  No. 521/2015 and JR No553/2016.

c. Whether  there  was  material  disclosure  of existence  of decisions  involving  the same subject  matter  and  parties.

d. What orders should this court make with regard to leave and stay.

e. Who  should bear costs  of these proceedings.

34. On the first issue, in this  case, albeit  the respondent  contended that  there  was no decision  made to  ban the motor cycle  riders  from the Central Business District, there was joining of issues when a deposition and  submission  was made  that it  was in  the public  interest that  riders  be removed  from  the Central Business District.

35. It must  also be understood  from the onset that the  requirement for leave to apply for the judicial review remedies of prohibition, mandamus and prohibitions as stipulated in Sections  8 & 9 of the Law Reform Act and Order 53 of the Civil Procedures Rules is statutory requirement with a substantive  purpose  and  not a  procedural technicality.  It is intended to, as was espoused in Republic vs County Council of Kwale & Another  Exparte  Kondo & 57  Others  Mombasa HC MCA 384/1996to eliminate  at an early  stage  any applications for  Judicial Review  which  are frivolous  or hopeless and secondly  to ensure  that the applicant  is only  allowed to  proceed  to substantive hearing  if the court  is satisfied  that there is  a case  fit for  further  consideration.

36. The requirement that leave  must  be obtained before making  an applications for  Judicial Review is  designed to prevent the time  of the court being wasted  by busy bodies  with misguided  or trivial complaints or administrative error, and to remove the uncertainty in which public officers  and   authorities  might  be left as to whether they could  safety  proceed with administrative action while proceedings for Judicial Review of it were actually pending even though misconceived.  Leave may only be granted therefore  if on the material available  the court  is of  the view, without going  into the matter  in-depth, that  there is  an arguable case for  granting  relief claimed  by the  applicant; the test being  whether  there is  a case fit for  further  investigation at a full inter parties hearing of the substantive application for  Judicial Review.  It is an exercise of the court’s discretion but always  it has  to be  exercised  judicially. SeeRepublic vs. County Council of Kwale & Another Ex Parte Kondo & 57 Others Mombasa HCMCA No. 384 of 1996; Bosire, Mbogholi-Msagha & Oguk, JJ in Matiba vs. Attorney General Nairobi H.C. Misc. Application No. 790 of 1993; andRepublic vs. The P/S Ministry of Planning and National Development Ex Parte Kaimenyi [2006] 1 EA 353.

37. What emerges from the above decisions which have gained  judicial  notoriety  is that  leave is not  automatic.  It  goes  to the very substance  of the main application  as  intended.  The leave  once granted  is what vests  in the court judicial review  power or jurisdiction and secondly  it is  at the leave stage that the  court will establish  whether  there indeed exists a prima facie arguable case for in-depth  investigation  at the substantive  stage.

38. It therefore follows that failure to annex a decision which is impugned where issues are joined is not fatal to the proceedings and the court must therefore proceed to determine the chamber summons on its very merit on the basis of the other issues as framed above.

39. On the second  issue of  whether this  application is Resjudicata the previous petition and judicial review matters cited above, the respondents strongly contended and annexed decisions in Petition  No. 521/2015  and  JR  553/2016  to demonstrate  that these proceedings  are a replica  of the proceedings  in the above decisions where this court dismissed similar conservatory  prayers  both  at the interlocutory  and at the substantive  hearing  stage.

40. On the part  of the applicant  it  was submitted  that in any event, the applicant  is different  and  that the  riders  had been left to  operate within the Central Business District without  interference  even after  those two  decisions  were made  hence they  should be  treated  humanely  by being  given notice  and time to  vacate from the Central Business District.

41. In addition, the applicant asserted that the earlier  case  was a petition  whereas  this is  a Judicial Review matter and that the applicant  seeks  to protect  the economic  rights  of the motor cycle riders.

42. The applicant has clearly  brought the application under Sections 8 & 9  of the Law  Reform  Act  Cap  26  Laws of Kenya  and Order 53  of the Civil  Procedure Rules  among  other provisions   of the law hence he considers  that leave to apply  for certiorari  and mandamus is a critical to initiation of judicial review  proceedings under  the  stipulated  provisions.

43. However  where there is  a preliminary point  of law raised  on account that  the  proceedings  are Resjudicata  other proceedings  or decisions  of  courts  of competent  jurisdiction  or that this court  has no jurisdiction to hear  and  determine  the matter, the court  must of  necessity first and foremost pause  and   inquire  into those preliminary issues before progressing  onto  the merits  of whether  or not  leave to  institute judicial review proceedings is  available  to the applicant.

44. Case law has tended to suggest that Resjudicata does not apply to judicial review proceedings.  This is what was held in Re National Hospital Insurance Fund and Central Organization of Trade Unions (K) [2006] 1 EA 47.  However, the courts  have over  time made  it clear that  this does not  mean that  the  court is powerless where it is clear that by bringing  proceedings,  a party is clearly abusing  the court process.

45. Thus, whereas Resjudicata may not be invoked in Judicial Review, the courts remain with the inherent jurisdiction to terminate proceedings  where the same  amount to an abuse of  its process.  This is so because one  of the cardinal  principles  of law is that litigation must come to an end  and that therefore where a court of competent  jurisdiction has pronounced  a final decision on a matter which decision  has not been challenged  or upset  by a superior court, to bring fresh proceedings whether  as Judicial Review or constitutional petition or otherwise would no doubt amount to an abuse of  the court process  and therefore  the court would not hesitate to decline  sitting on appeal  of decisions  that have concluded such former disputes, by invoking its inherent  power, as long as that inherent power is consistent with the Constitution or any  other written law.

46. Inherent  jurisdiction as stated by  Kimaru J in  Stephen  Somek  Takwenyi vs David Mbuthia Githare & 2 Others HCC (Milimani) 363/2009 is “the power inherent in the court but which  should only be used in cases  which bring  conviction to the mind of the  court that  it  has been  deceived.”

47. It follows that this court  may  in appropriate  cases invoke  its  inherent  jurisdiction to make such  orders  as may be  necessary  for the ends  of justice  or to  prevent  abuse  of its process and  this may  be done  where  the doctrine  of Resjudicata  would  be applicable.

48. This court’s attention was drawn to Petition No. 521/2015  City Riders  Sacco & 11 Others  vs County Government  of Nairobi &  3 Others  [2016] e KLR where several  motor cycle  rider  Saccos  petitioned  the court  against the 1st  respondents  herein,  the National Police Service  Commission, the  Inspector General of Police and the Honourable Attorney General seeking for several  orders  including  declarations, and  injunctions,  on the account of a notice issued on 11th November 2015 by the County Government of Nairobi, banning of motor cycles (Boda Boda) operators from Central Business District.

49. The petitioners in the constitutional petition described  themselves  as “boda boda riders,” registered  pursuant  to the  Transport Act  and the Co-operatives  Societies Act, Cap 490  Laws of Kenya and that they were members of the two  wheeled  taxi operators  within the Central Business District of  Nairobi.  They claimed that they were aggrieved by the decision to stop them from operating their motor cycles within the Central Business District of the 1st respondent  herein  as such decision affects then and their families likelihood and that it was discriminatory.

50. The court (Mumbi Ngugi J) after hearing an interlocutory application for conservatory orders rendered  her decision/ruling on 19th February 2016 dismissing the application for conservatory  orders  and observed  that the material  placed before  her suggested  that “the  1st respondent  was carrying  out its constitutional and statutory mandate with regard to regulation of road  transport  within the City of Nairobi hence  the public  interest consideration is in favour of allowing it  to do that  which the law, on the face of it, allows it  to do.”

51. In the  final decision rendered  on  31st  October  2016  by Honourable  J.L. Onguto J ( RIP) ( as he then was), agreeing with the earlier decision in a ruling by Mumbi Ngugi J, the learned, recently departed brother judge dismissed the petition. He did not find any violation of the petitioner’s  rights  or any  contravention  of the law by  the respondents.  The learned judge wholly adopted the  reasoning  of Mumbi Ngugi J when  pronouncing  herself  in the application for  conservatory  orders. That judgment which is pretty detailed was clear  that the public transport issue as well as parking within the Central Business District  was to be  registered  by the County Government.

52. Again in JR  553/2016  Republic vs  County Government  of Nairobi, Inspector General & Honourable  Attorney General exparte United Boda Boda Welfare Association suing through their Chairman  Kimani  Wa Nduthi [2017] e KLRdecided  on  30th July 2017  by Odunga  J, the same applicants  in the latter Judicial Review application challenged a notice by the 1st respondent   herein  banning with immediate  effect at boda boda  (motor cycle) operators  from  ferrying  passengers  to and  from  the Central Business District. The  1st  respondent  raised  a preliminary  objection  on account that the matter was Resjudicata constitutional Petition No. 521/2015  dated  20th November 2015 (supra) which   had been dismissed  by Onguto J(RIP) on 31st  October  2016.

53. The applicant had argued that the specifities and parties  in the constitutional petition were  distinguishable  from those  before the court  under the Judicial Review  application for leave.

54. The learned judge Odunga J after hearing the preliminary objection in the Judicial Review matter upheld  the preliminary objection  and struck out the application for leave  with costs  on account  of  its being Resjudicata  Petition  521/2015.

55. As was stated  in Omondi vs NBK Ltd & Others [2001] KLR 579, this court when called upon to determine whether proceedings  are Resjudicata other proceedings  and therefore  an abuse of account process must, as I have done, look at the pleadings  and other  relevant  matter in its  records  and it is not  necessary  to file  affidavit  evidence  on those  matters, albeit  in this matter there is  an affidavit annexing decisions  on the earlier proceedings.

56. In Gurbachan  Singh  Kabi  vs Yowani  Ekori  CA  62/1958, the then  EACA stated:

“ Where  a given  matter becomes  the subject  of litigations in, and  of adjudication  by a court  of  competent  jurisdiction, the court  requires the parties  to that litigation  to bring  forward  their whole case, and will not, except under special  circumstances, permit the same parties to open the same  subject  of litigation in respect of  a matter  which might  have  been brought  forward  as part  of the  subject  in contest, but  which  was not brought forward, only because they have, from  negligence, inadvertence, or even accident, omitted part of their case.  The plea of   Resjudicata  applies, except  in special cases, not only to  points  upon which  the court  was actually  required  by the parties  to form an opinion and pronounce  a judgment, but  to every point which  properly  belonged to the  subject of litigation, and which the parties exercising reasonable diligence, might have brought forward at the time…..No more actions  that one can be brought for the same cause of action and the principle  is that where  there is  but one cause of action, damages must be  assessed once   and  for all…

A cause of action is every fact which it would be necessary  for the plaintiff  to prove, if traversed.  In order to support his right  to the judgment of the court.  It does not comprise every  piece of evidence  which is necessary  to prove  each fact, but every  fact which is necessary  to be proved.”

57. Waki JAC had this to say in Apondi vs Canuald Metal Packaging [2005] EA  12:

“ A party is at liberty to choose a forum which has the  jurisdiction to adjudicate  his claim, or choose  to forego  part  of his claim  and he cannot be heard to complain  about that  choice  after the event and it would be otherwise oppressive and prejudicial  to other parties  and  an abuse of the  court processes to allow  litigation by installments.

58. From the  above decisions  and the facts of this  case and  the previous cases  namely Petition  521/2015  and  JR  553/2016, I am persuaded that what has changed is the name of  the applicant  who, though  not specifically pleading that he is suing  on behalf  of the boda boda  riders of  Nairobi Central Business District, but  the facts of the case clearly  show that the applicant member  of Parliament for Starehe Constituency is  reviving  the same claim that petitioners and  applicants in the previous  cases had  before the court and  which  were dismissed by  the courts of competent jurisdiction.

59. What  the  applicant  has  done is to give  this case and the aggrieved parties who are non-parties to these proceedings a complexion of a member  of Parliament  suing on  behalf  of the same boda boda riders who had initially approached the court using  different names, and or organizations, for the fact that there is a  renewed threat to get rid of the motor cycle riders from the City, by way of implementation of the  1st respondent’s constitutional and statutory obligations to regulate  public transport within the City County’s CBD.

60. What this court has observed is that  there has been  impunity  of the highest order, where the City County tries to implement  policies  and  perform their  constitutional  mandates, it is held hostage  by politicized litigation( safely call it politigation )because  the riders  are potential  voters  at every election and so they are left  to operate  within the Central Business District during the electioneering  period, for  purposes  of voting  but immediately  after the elections, they are  told  to move out.  They however resist their eviction, approach their city fathers for  protection and  with impunity, they  continue  operating  from the Central Business District undisturbed for some time.  The matter  is then  forgotten  until  a life  or  limb  is lost through  criminal  activities  perpetrated  by some  of the motor cycle operators  is when a  bell is rung to awaken  city fathers to enforce the law on regulation of  transport   in the City.  No decisive  action is  ever taken  to rid  the  City of  this menace  and  reorganize  it  to its lost glory of being the  Green City in the Sun. informal traders and motor cycle riders have for a long time been pawned by our politicians and it is high time that this pawning stopped.

61. Today the riders  are a menace  but come  general  elections  they will become  necessary  evils.  This is  trite unfortunate that  the  law is  enforced  conveniently.

62. There must  nevertheless  be an end to litigation and to impunity.  The same   persons of interest  cannot be left to oscillate  around the courts in different colours  of right  where  today they sue  as a Sacco, tomorrow  as  a Welfare Association and  a day  after they  come as  a Member of Parliament with the latter trying  to  protect their voters’  interests.  People must learn to respect the rule of law and accept verdicts of the  courts  and  move on  or challenge those verdicts to higher courts.  People cannot be allowed to abuse the court process by appearing and disappearing as and when it is convenient, with different types of pleadings but the same cause  of action.

63. On the part of the respondents,  they must enforce the law.  They must not pawn the riders for political gain.  They  must not create any legitimate  expectation  in the  minds of the riders  who are not law abiding that the law  will not be enforced and after  elections, the City fathers find it convenient to enforce the law.  In my view, the conduct of both the applicants and respondents is to mutilate the rule of law and create a lawless society.

64. The respondents are not  a toothless dog.  They have  the means  to enforce the  law within legal parameters.  They must do so and  be  seen to do so decisively.  The public interest is in favour  of public order and security of persons in the Central Business District.  There are many ways of doing business for the riders. There is no legitimate expectation that they must violate the law and court orders in order to eke a living and make economic sense of their business. Law and order enforcement can only be achieved if the respondents undertake their duties and mandate diligently.  They have nonetheless left this city to rot in filth which then overshadows the wealth that this once beautiful City had the potential to generate.  The City fathers have abdicated their mandate.  They have remained merely defensive whenever such issues as these arise.  They must be awakened.

65. For those reasons, I find  that there is no arguable prima  facie case disclosed herein for  the court’s  in depth  investigation at the substantive  stage. There is nothing new being propagated by the Honourable  Member of Parliament.  His application, however  well intended, is, unfortunately an abuse of court process.  It is a replica of previous litigation which this very court differently constituted dismissed. There is nothing on record that is a semblance of violation or threatened violation of the applicant’s rights or rights of the riders. The application is intended to perpetuate impunity and to make enforcement of City by-laws impossible. This application is accordingly hereby dismissed with no orders as to costs.

Dated, signed and delivered in open court at Nairobi this 26th day of March, 2018.

R.E. ABURILI

JUDGE

In the presence of

N/A for the applicant

N/A for the Respondents

CA: Kombo