JESSE GICHURU MWANGI, SIMON GICHERU GITAU, JOHN NDEGEA TUMBUTI, PHILIP GATHURU MUIGAI, STEPHEN MAINA, PETER NJUKI NJERU, v PERMANENT SECRETARY, MINISTRY OF LOCAL GOVERNMENT, CITY COUNCIL OF NAIROBI, TRANSPORT LICENSING BOARD, COMMISSIONER OF PO [2008] KEHC 2760 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Misc. Civ. Appli. 216 of 2008

1.       JESSE GICHURU MWANGI ………..………...………………….1ST APPLICANT

2.       SIMON GICHERU GITAU ……………...…………………….…..2ND APPLICANT

3.       JOHN NDEGWA TUMBUTI ……………..…..…………………..3RD APPLICANT

4.       PHILIP GATHURU MUIGAI …………………....………………..4TH APPLICANT

5.       STEPHEN MAINA …………….....................................................5TH APPLICANT

6.       PETER NJUKI NJERU …………….…………………………….6TH APPLICANT

7.       MAINA MUGWE ……………………………….………….…….7TH APPLICANT

8.       WILFRED KAHUKI…………….………………………….…….8TH APPLICANT

9.       BERNARD M. MUCHOKI ……………….…………………..….9TH APPLICANT

10.     JOHN N. MUIRURI ……………….……………….…………...10TH APPLICANT

11.     BENSON NJEGE ……………………………...………………..11TH APPLICANT

12.     STEPHEN MAINA MBEERE ……………………....…………..12TH APPLICANT

13.     JAMES NYABUTI ……………...................................................13TH APPLICANT

14.     RICHARD IREGI WANJIRA …………….…....……………….14TH APPLICANT

15.     ZEBBY ORIO MWAURA ………………...……..……….…….15TH APPLICANT

16.     JOSEPH MACHARIA …………….……...………….………….16TH APPLICANT

17.     STEPHEN LEPOSO………………………………...………….17TH APPLICANT

18.     GRACE WANJIKU NYAMBURA …………………………….18TH APPLICANT

19.     DAVID MUGURO MWANGI ………………………………….19TH APPLICANT

20.     MARY M. KINYUA ……...…………………………………….20TH APPLICANT

21.     JAMES GACHANJA …………..……………………………….21ST APPLICANT

22.     THOMAS MUIRURI…………………………………………...22ND  APPLICANT

23.     ROBERT MUGIRE……………………………………….…….23RD APPLICANT

24.     JOSEPH MACHAIR NYAMBURA…………………………….24TH APPLICANT

25.     HENRY NGUI……..…………………………………………….25TH APPLICANT

26.     NJUGUNA KARERI…………………………………………….26TH APPLICANT

27.     JOHN NJOGU……………….………………………….……….27TH APPLICANT

28.     FRANCIS THIGA…………………………………….…...…….28TH APPLICANT

29.     FRANCIS THIGA…………………………………….………....29TH APPLICANT

30.     DAVID CHEGE……………………………………….……..….30TH APPLICANT

31.     PETER GACHIE MUTURI….………………………….……….31ST APPLICANT

32.     JOSEPH KURIA MWANGI...………………………….……….32ND APPLICANT

33.     JACKSON WANYOIKE GITAU…………………….……...….33RD APPLICANT

34.     JACKSON NGENYE MWANGI…………………………….….34TH APPLICANT

35.     JOHN MWANGI MAINA….………………………..….……….35TH APPLICANT

36.     GABRIEL KAHARA………..…………………………..……….36TH APPLICANT

37.     JAMES GITHINJI…………...………………………….……….37TH APPLICANT

38.     JOSEPH IRUNGU MWANGI………………………….……….38TH APPLICANT

39.     SIMON MACHARIA NJOROGE….………………….…..…….39TH APPLICANT

AND

PERMANENT SECRETARY, MINISTRY

OF LOCAL GOVERNMENT…………………………....…..………..1ST RESPONDENT

CITY COUNCIL OF NAIROBI…………………………....………….2ND RESPODNENT

TRANSPROT LICENSING BOARD………………….……....……..3RD RESPONDENT

THE COMMISSIOENR OF POLICE…………………….…………..4TH RESPONDENT

THE HONOURABLE ATTORNEY GENERAL………....…………..5TH RESPONDENT

RULING

Before me is a Chamber Summons dated 22/4/2008 filed by Kipsang & Mutai Advocates on behalf of the applicants, who are 39 in number   The application was filed under certificate of urgency.  It was filed together with a statutory STATEMENT and VERIFYING AFFIDAVIT.  The application seeks leave to file Judicial Review proceedings for orders of certiorari, and prohibition.  It also seeks for orders that leave, if granted do operate as a stay of the orders made under Legal Notice No. 37 of 2008.

Counsel, for the applicants, Mr. Mutai, made submissions before me in support of the application.  Counsel submitted that Legal Notice No. 37 of 2008 prohibited the passenger carrying vehicles of the applicants from accessing the Central Business District of Nairobi.  Counsel argued that the applicant had current licences to operate up to the Central Business District, but the Legal Notice required them to terminate their route at Muthurwa.  Counsel contended that the order was made contrary to the principles of natural justice, as the applicants had paid for their current licences and the order was made without any notice to the applicants.  They were, in effect, condemned unheard. In addition, some other bus companies, whose names were listed in the application had been given favourable treatment by being allowed to operate to the Central Business District.  Counsel argued that the order had made the applicants suffer business losses as passengers shunned their vehicles due to the fact that the passengers would be require to pay an additional 20/= to get to the Central Business District.

Counsel further argued that the Legal Notice was issued under the Traffic Act, while the applicants were licenced under the Transport Licensing Act.  Counsel argued that the said Legal Notice was ultra vires the enabling legislation.  There was both procedural and substantive ultra vires.  Counsel also emphasized that in similar Judicial Review applications 123 of 98; 130/08; 133/08; and 112/08 – Judges of the High Court had granted stay orders – which gave an advantage to other similarly affected pubic passenger transport operators.  Counsel added that applicants had bank loans for their vehicles which they could now not service because of the Legal Notice and the financiers were likely exercise their rights of foreclosure, thus cutting the applicant’s source of livelihood.

Lastly, counsel argued that the Muthurwa vehicle terminus was small and could not accommodate all the vehicles from Eastlands, and commuters and vehicle workers were exposed to muggers and robbers.

I have considered the application, documents field and submissions of counsel for the applicants.  Counsel has, indeed, made forceful submissions.

Having considered the same, I am of the view that the applicants have demonstrated a sufficient interest in the matter, as their commercial motor vehicles and businesses are alleged to be affected by the Legal Notice.  They have also demonstrated a prima facie arguable case.  I will grant them the leave to file Judicial Review proceedings as requested.

On stay, counsel has referred me to a number of cases where the High Court has granted stay orders.  This being a court of parallel jurisdiction, I am not bound by the decisions of my brother and sister Judges.  Those decisions are of persuasive effect.  I am not persuaded to follow these decisions at this ex-parte application stage, as I have not had the opportunity of hearing the other side.  In addition, the Minister having made the Legal Notice in March, more than a month ago, the balance of convenience will require that both sides are heard in the main application, before appropriate orders of court are made. I will decline to grant stay orders.

Consequently, I order as follows –

1. I certify the application as urgent.

2. I grant leave to the applicants to file Judicial Review proceedings for the orders as sought in the application.  The main motion will be filed within 21 days from today.

3. I decline to grant stay orders.

4. Costs in the cause.

Dated, and delivered on 2nd May 2008 at Nairobi.

George Dulu

Judge

In the presence of –

Mr. Mutai for applicants

Mwangi – court clerk