Dimention Outdoor Limited v County Government of Isiolo [2017] KEHC 1932 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

CONSTITUTIONAL PETITION NO. 3 OF 2017

DIMENTION OUTDOOR LIMITED.............................PETITIONER

Versus

COUNTY GOVERNMENT OF ISIOLO.....................RESPONDENT

J U D G M E N T

1.  In the petition dated 6th February, 2017, it is alleged that on or about 25th January, 2017 the petitioner applied to the Respondent for erection of billboard. The Respondent the application and the same was duly paid for. It is further alleged that in breach of the petitioner’s right to enjoy freedom of doing business, the Respondent threatened to remove the billboards along Nanyuki – Isiolo road without giving any reasons.

2. The petitioner the claimed that it had served the Respondent with its claim but the Respondent had not responded thereto and had intentions of destroying the same. The petitioner therefore prayed for a declaration that the Respondent’s intention of removing the said billboards was illegal and that it should pay the costs of the petition.

3.  The petition was supported by the affidavit of Moses Njora sworn on 6th February, 2017. That supporting affidavit was of three paragraphs in which the deponent stated that; he was competent to swear the same, that he verified the contents of the petition and that what he had stated was true to the best of his knowledge belief and understanding.

4.  When the petition came up for directions on 18th May, 2017, the advocate appearing for the petitioner sought that the petition be determined by way of affidavits and written submissions. The court acceded to the request and directed that; the petition be determined by way of affidavits and written submissions, that the petitioner do file and serve its written submissions within 30days and that the respondent do file and serve its written submissions if any within 30 days of service. The matter was then fixed for mention on 4th October, 2017 to give a date for judgment.

5.  When the matter came up for mention on 4th October, 2017 as aforesaid, Mr. Mwiti holding brief for Mr. Kirima for the petitioner informed the court that submissions had not been filed. There was no appearance on the part of the respondent. The court then reserved the matter for judgment as it was bound to.

6.  I have considered the entire record. The petition was properly served upon the respondent on 2nd February, 2017 but chose not to enter appearance or defend it. These proceedings therefore are undefended. However, the court had directed that the petition be determined by way of affidavits and written submissions. There were no written submissions that were filed by the petitioner. In this regard, the petitioner failed to prosecute its petition and the same is for dismissal without much ado.

7.  Even if submissions were filed, could the petition succeed? I don’t think so. Firstly, there was no proper affidavit in support of the petition. The affidavit that is sworn in support of a Constitutional Petition is expected to contain the evidence that supports the averments in the petition. In the present case as indicted earlier on, the affidavit in support of the petition is bare. It never contained any evidence at all. It was akin to that which is usually sworn in support of a plaint. With the greatest respect, that is not the case with Constitutional Petitions.

8. As if the foregoing is not enough, the petition itself is fatally defective. The petition did not specify the provisions of the Constitution that had been or was threatened to be violated.  In the case of Anarita Karimi vs. Republic [1979] eKLR,the court held:-

“If a person is seeking redress from the High Court on a matter which involves reference to the Constitution, it is important …. that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed”.

9.  To this court’s mind, that position still obtains and is still good law. A party who seeks a remedy under the constitution should as of necessity clearly set out the provisions of the constitution allegedly being infringed, the manner they are being infringed and clearly what his complaint is. That is a basic requirement of pleading. In so doing, not only will the respondent know the case it is facing, but the court will be able to discern the dispute easily and deal with the same for the ends of justice.

10. In the present case, although the petition set out its complaint, that it had obtained permission from the respondent to erect billboards and that the respondent had threatened to pull them down, the petitioner did not specify the provisions of the Constitution that had been or were about to be breached and the manner of the breach.

11. In the circumstances, I find the petition to be without merit and the same is hereby dismissed. Since the respondent did not appear, I will not make any orders as to costs.

DATED and DELIVEREDat Meru this 9th   day of November, 2017.

A. MABEYA

JUDGE