Republic v County Commander of Police, Marsabit County & 3 others; Saku Boda Boda Savings and Credit Co-operative Society Ltd (Exparte) [2022] KEHC 14863 (KLR)

Republic v County Commander of Police, Marsabit County & 3 others; Saku Boda Boda Savings and Credit Co-operative Society Ltd (Exparte) (Judicial Review E001 of 2022) [2022] KEHC 14863 (KLR) (3 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14863 (KLR)

Republic of Kenya

In the High Court at Marsabit

Judicial Review E001 of 2022

JN Njagi, J

November 3, 2022

Between

Republic

Applicant

and

The County Commander of Police, Marsabit County

1st Respondent

Inspector General of Police

2nd Respondent

Officer Commanding Station, Marsabit Central Police Station

3rd Respondent

Attorney General

4th Respondent

and

Saku Boda Boda Savings and Credit Co-operative Society Ltd

Exparte

Judgment

1. By a chamber summons dated February 18, 2022, the ex parte applicant sought leave from this court to apply for:a.An order of Certiorari quashing the directives by the 1st respondent issued on the December 4, 2021 banning all motor cycles from accessing, entering, ingress or engress of Marsabit Town and all consequential orders.b.An order of Prohibition restraining the Respondents from banning motor cycles from entering and accessing Marsabit Town Central Business District.c.That leave so granted does operate as an interim order staying the directive by the 1st respondent banning motor cycles from entering and accessing Marsabit Town Central Business District.d.That the costs of this application be borne by the respondent.

2. The application was based on grounds on the face of the application and the statutory statement of the advocates for the ex parte applicant together with the verifying affidavit of Kamau Kamotho, the Chairman of the ex parte applicant. On the January 19, 2022, the court granted leave to file judicial review orders of certiorari and prohibition. Prayer (c) of the Chamber Summons was allowed thereby staying the ban pending inter partes hearing.

3. The Respondents were aggrieved by the lifting of the ban by the court and filed a Notice of Motion application dated January 26, 2022 seeking for stay orders issued by this court on January 19, 2022. They also sought that this honorable court be pleased to issue an order for forfeiture and destruction of 51 unregistered motor cycles lying at the Marsabit Central Police Station. The application was based on grounds and annexed affidavit of the Marsabit County Commander of Police Robison Mboloi, the 1st Respondent.

4. The court on January 27, 2022 considered the aforementioned application and declined to lift the orders issued on January 19, 2022 and ordered the applicant to serve the application for inter- partes hearing.

5. The ex-parte applicant opposed the respondent`s application and filed a replying affidavit dated February 28, 2022. They in addition filed a contempt of court application against the 1st and 3rd respondents dated February 7, 2022.

6. The respondents vehemently opposed the application dated February 7, 2022 by filing a replying affidavit dated June 6, 2022 and averred that the arrests conducted by the police were not a blatant disregard of this honourable court`s orders but actuated in accordance with the Traffic Act and the National Transport and Safety Authority (Operation of Motorcycles) Regulations, 2015.

7. Parties appeared before court on June 15, 2022 and directions were given that all applications were to be canvassed together by way of written submissions. Accordingly, the parties complied and filed their respective submissions through their advocates.

Application by the ex parte Applicant - 8. The ex parte applicant is a registered savings and credit society under the CooperativeSocieties Act, cap 490 Laws of Kenya. Their members are boda boda operators in Marsabit town. They accuse the 1st Respondent to have on the December 2, 2021 issued a verbal directive vide an announcement in a local radio station banning all motor cycles from assessing and gaining entry into the Marsabit Central business District. They contended that the 1st Respondent did not provide any justifiable reasons for the indiscriminate ban or provide a time frame within which the ban would be lifted. That the 1st Respondent had no power to impose such a ban under the National Police Service Act. That the 1st Respondent acted ultra vires by exercising powers that are outside its purview and which have not been donated to it by the said Act. Further that the 1st Respondent violated section 5 of the Fair Administrative Actions Act by failing to conduct a stake-holders meeting to seek out the views of the members of the applicant and by failing to communicate its decision in writing as mandated by the Fair Administrative Actions Act. That by issuing the directive the 1st Respondent acted in an irrational and unreasonable manner as the directive is draconian and harsh to the members of the Applicant. That the 1st respondent should have instead crafted a more suitable solution to the insecurity problem bedeviling Marsabit town like vetting the motor cycles accessing the town center instead of completely banning them. Therefore, that the decision failed the rationality and reasonableness test. That the ban deprived the members of the applicant their only means of earning a living and unjustifiably restricted their right to property as prescribed in Article 40 of theConstitution.

9. The applicant vide their application dated February 7, 2022 cited the 1st respondent and the 3rd respondent for contempt of court for failing to comply with the orders of the court issued on January 19, 2022.

Case for the Respondents 10. The respondents opposed the application dated January 18, 2022 and sought for the ban to be lifted vide their application dated January 26, 2022. The grounds in support of their application was that in the past few months there has been a rise in crime activities and tribal clashes within Marsabit county and particularly Marsabit town central business district between members of Gabra and Borana communities. That the increase in insecurity has majorly been contributed by motorcycle riders who have been using them to commit murders within Marsabit town central business district in the pretext of conducting business. That during this period several members of the public have been shot at and others killed by people riding on motor cycles. That in a bid to curb the insecurity the 1ST Respondent working with the 2nd and 3rd Respondents put up measures to curb the insecurity by imposing the ban. That the ban was necessary due to the dangers posed by motor cycle riders and their pillion passengers to the citizens of Marsabit. That the ban was made after much deliberation by the Marsabit County Security Committee. That public participation and involvement of the motor cycle riders would not have been the best choice since it was a matter of urgency and public interest and therefore the need to take immediate action. That the 1st Respondent could not issue a definite date when the ban would be lifted as they were not sure when the suspected offenders would be apprehended and neither was there a timeline of when the heightened levels of insecurity would subside.

11. It was contended that section 51 (1) (h) of the National Police Service Act gives power to a police officer to 'take all steps necessary to prevent the commission of offences and public nuisance.'

12. Further that section 16 (2) of the Government Proceedings Act provides that an injunction cannot be issued against the Government or its officers so as to prevent them from discharging their duties, hence the need to stay the orders. That the effect of lifting the orders rendered the maintenance of peace and security within the town a problem and failure to stay them will result in exposing the public to great risk in terms of crime, insecurity and clashes.

13. On the application for contempt of court, the 1st respondent denied that they were in contempt of the court orders. He deposed that any arrests that were made after the orders were issued was in enforcement of the Traffic Act and not in disregard of the court order.

Submissions 14. The advocates for the ex parte applicant, MAO Advocates, submitted that the directive by the 1st respondent was illegal in that the officer acted ultra vires. That section 27 of the Police Act enumerates the powers of the police which does not include the power to prohibit traffic in and out of town. The applicant cited the Ugandan case ofPastoli v Kabale District Local Government Canal & others (2008) 2EA300 where it was held that Illegality is when the decision making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality.

15. It was submitted that the order was irrational and cited the case of Pastoli (supra) where it was held that –Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re An Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph 'E'.

16. It was submitted that failure to involve the respondents during the decision-making process smacked of procedural impropriety which was defined in the Pastoli case as follows -Procedural impropriety is when there is failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876).'

17. The ex parte applicant submitted that public interest alone should not be a basis for the court to uphold a decision made without statutory or constitutional powers. That the court can issue orders of forbidding the respondents from issuing any such further orders in the future and thereby invalidating the already imposed ban.

18. It was submitted that the respondents did not make out a case for stay of the orders issued on January 19, 2022.

Respondents` Submissions 19. The Deputy Chief Litigation Counsel, Mr W Nguyo, submitted that the 1st respondent`s action in issuing the directive was not ultra vires but was within the purview of the law. Counsel cited the principles of national security as prescribed under Article 238 of theConstitution and the mandate of the national security organs as provided under Article 239 of theConstitution and the functions of the Kenya Police Service as provided in sections 24 and 51 (1) (h) of the National Police Service Act. It was consequently submitted that it is the mandate of the National Police Service as a national security organ to promote and guarantee national security. Therefore, that the directive was not illegal. Counsel cited the case of Republic v Cabinet Secretary, Ministry of Agriculture, Livestock & Fisheries:Cabinet Secretary, Ministry of Industry, Trade & Co-operatives (Interested Party) Tanners Association of Kenya (Suing through its Chairman Robert Njoka Ex parte Applicant (2019) eKLR where the court held that –25. A decision is illegal if it: - (a) contravenes or exceeds the terms of the power which authorizes the making of the decision; (b) pursues an objective other than that for which the power to make the decision was conferred; (c) is not authorized by any power; (d) contravenes or fails to implement a public duty.

20. Counsel submitted that judicial review orders are discretionary in nature. That they should not be granted as of right as there are public interest considerations at play. Counsel cited the following cases –

21. In Republic v Principal Secretary, Ministry of Internal Security & another Ex-Parte Schon Noorani & another [2018] eKLR where it was stated that:35. Miss Nyakora argued that Judicial Review orders are discretionary and the Court has the ultimate discretion either to grant or decline.[25] I entirely agree with this submission. The discretionary nature of the Judicial Review remedies sought in this application means that even if a court finds a public body has acted wrongly, it does not have to grant any remedy. Examples of where discretion will be exercised against an applicant may include where the applicant’s own conduct has been unmeritorious or unreasonable, for example where the applicant has unreasonably delayed in applying for Judicial Review, where the applicant has not acted in good faith, or where a remedy would impede the authority’s ability to deliver fair administration, or where the judge considers that an alternative remedy could have been pursued. In this case, the Respondent's counsel did not draw to the attention of the Court any of the above grounds or any other ground that may warrant this Court to decline exercising its discretion in favour of the ex parte applicant nor did I find any such grounds in my analysis of the material before me.

22. In Republic v Chairperson Business Premises Rent Tribunal & another Ex-parte Keiyo Housing Cooperative Society Ltd & another [2014] eKLR where it was held that:Being discretionary remedies, judicial review orders will only issue based on various considerations by the court and peculiar circumstances of each case. In the book 'Judicial Remedies in Public Law' by Clive Olive, it is noted that 'there are varieties of considerations discernible in the case law which are relevant to the exercise of the judicial discretion to refuse a remedy. Some are related to the conduct of the claimant, such as delay or waiver; others are related to the circumstances of the particular case, such as the fact that a remedy would be of no practical effect. Other considerations relate to the particular nature of public law where the court may need to have regard to the wider public interest as well as the interest of the claimant in obtaining an effective remedy.'

23. In Peris Wambogo Nyaga v Kenyatta University [2014] eKLR, it was held that:In Republic vs. Judicial Service Commission ex parte Pareno [2004] 1 KLR 203-209 it was held that judicial review orders are discretionary and are not guaranteed and hence a court may refuse to grant them even where the requisite grounds exist since the Court has to weigh one thing against another and see whether or not the remedy is the most efficacious in the circumstances obtaining and since the discretion of the court is a judicial one, it must be exercised on the evidence of sound legal principles. The court does not issue orders in vain even where it has jurisdiction to issue the prayed orders and would refuse to grant judicial review remedy when it is no longer necessary; or has been overtaken by events; or where issues have become academic exercise; or serves no useful or practical significance. Since the court exercises a discretionary jurisdiction in granting judicial review orders, it can withhold the gravity of the order where among other reasons there has been delay and where a public body has done all that it can be expected to do to fulfil its duty or where the remedy is not necessary or where its path is strewn with blockage or where it would cause administrative chaos and public inconvenience or where the object for which application is made has already been realised.

24. It was thus submitted that the directive was made at a time of heightened insecurity and murders in Marsabit town that were committed by motor cycle riders. That security considerations qualify as public interest considerations. That the 1st respondent was guided by public interest obligation when he issued the impugned directives. That judicial review orders being discretionary are only issued after the court weighs various considerations among them being security of citizens. That the court should dismiss the prayers for certiorari and prohibition irrespective of whether it may ordinarily find that the said orders lie in the instant case.

25. It was submitted that orders of prohibition do not lie as the 1st appellant had already effected the ban. Counsel relied on the case of Kenya National Examination Council –vs- Republic in ex parte Geofrey Gathenji Njoroge, Civil Appeal no 266 of 1996.

Analysis and Determination 26. The applicant is seeking for an order of Certiorari to quash the directive by the 1st respondent issued on December 4, 2021 banning motor cycles from accessing, entering, ingress or egress of Marsabit town. They are also seeking for an order of prohibition restraining the respondents from banning motor cycles from entering and accessing Marsabit Town Central Business District.

27. I have considered the grounds in support of the applications that are before the court, the grounds in opposition thereto and the submissions by the respective advocates for the parties. The issues for determination are:(1)Whether the reliefs sought for certiorari and prohibition should be granted or whether the court should stay its orders issued on January 19, 2022. (2)Whether the 1st and 3rd respondents should be cited for contempt of court.

28. The ex parte applicant argued that the order to ban motor cycles from accessing and entering Marsabit town central business District was tainted with illegality, irrationality and procedural impropriety. That the decision was ultra vires and without legal basis.

29. The respondents on the other hand argued that the decision was mandated by the law and that it was necessitated by the need to respond to the security crisis that was posed to the inhabitants of Marsabit town as a result of indiscriminate killings by people riding on motor cycles.

30. The parameters of judicial review were set out by the Court of Appeal in Municipal Council of Mombasa vs Republic & Umoja Consultants Ltd, Civil Appeal No 185 of 2001 as follows:'Judicial review is concerned with the decision making process, not with the merits of the decision itself: the Court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters. The court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision’s touching on violation of fundamental rights. These are issues within this court's jurisdiction, hence, on this ground; this case passes the exception requirement.

31. The grounds for judicial review as stated in the Ugandan case of Pastoli vs Kabale District Local Government Council & Others (2008) 2 EA 300 are as follows:'In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala, miscellaneous application number 643 of 2005 (UR).Illegality is when the decision making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality.Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re An Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph 'E'.Procedural impropriety is when there is failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876).'

32. In Suchan Investment Limited vs Ministry of National Heritage & Culture & 3 others [2016] eKLR, the Court of Appeal expressed itself at paras 55-58 as follows:'55. An issue that was strenuously urged by the respondents is that the appellant’s appeal is bad in law to the extent that it seeks to review the merits of the Minister’s decision while judicial review is not concerned with merits but propriety of the process and procedure in arriving at the decision. Traditionally, judicial review is not concerned with the merits of the case. However, Section 7 (2) (l) of the Fair Administrative Action Act provides proportionality as a ground for statutory judicial review. Proportionality was first adopted in England as an independent ground of judicial review in R v Home Secretary; Ex parte Daly [2001] 2 AC 532. The test of proportionality leads to a 'greater intensity of review' than the traditional grounds. What this means in practice is that consideration of the substantive merits of a decision playing a much greater role. Proportionality invites the court to evaluate the merits of the decision; first, proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions; secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations; thirdly, the intensity of the review is guaranteed by the twin requirements in Article 24 (1) (b) and (e) of theConstitution to wit that the limitation of the right is necessary in an open and democratic society, in the sense of meeting a pressing social need and whether interference vide administrative action is proportionate to the legitimate aim being pursued. In our view, consideration of proportionality is an indication of the shift towards merit consideration in statutory judicial review applications.

33. From the above, it is now recognized that one of the grounds for grant of judicial review relief is unreasonableness of the decision being challenged. This is clearly a deviation from the traditional common law approach that what is to be considered is the process by which the decision is arrived at rather than the decision itself. An examination of whether or not a decision is unreasonable clearly calls for some measure of consideration of the merits of the decision itself though not in the manner contemplated by an appellate process.

34. It is in this respect that in Kenya Human Rights Commission vs Non-Governmental Organizations Co-Ordination Board [2016] eKLR where the Learned Judge held that the Court,'Effectively has a duty to look both into the merits and legality of the decision made due to the requirement of 'reasonable' action under Article 47, and also the process and procedure adopted due to the requirement of following all precepts of natural justice under both Articles 47 and 50(1) of theConstitution.'

35. In this case it is contended that the Respondent’s decision was unreasonable in that the indiscriminate ban on motorcycles from entering the CBD without considering the impact of the same riders and their families and without providing a time frame within which the impugned ban would last. Further the ban was unreasonable not only for having been made without taking into account and carefully or effectively balancing the various interests at stake but also for being too broad and for not being made within the bounds of the applicable statutes and theConstitution.

36. On the other hand the respondents aver that the 1st respondent considered their obligations and that of the state while protecting the lives of the people within Marsabit. That the 1st respondent`s consideration and the eventual decision cannot be deemed to be irrational or unreasonable. It took account relevant matters in the form of the gravity of the crimes perpetrated by the motorcycle users and the urgency to respond to the increase in the rise of the criminal activities perpetrated by the motorcycle users.

37. The respondents implored the name of national security in defence of the issuance of the impugned orders. Article 238 (2) of theConstitution of Kenya, 2010 provides as follows:The national security of Kenya shall be promoted and guaranteed in accordance with the following principles –(a)National security is subject to the authority of this Constitution and Parliament;(b)National security shall be pursued in compliance with the law and with the utmost respect for the rule of law, democracy, human rights, and fundamental freedoms.

38. In view of these clear provisions of theConstitution, it was the duty of the respondents to demonstrate that the impugned decision complied with the law of the land and that it did not infringe on the rights of citizens. The impugned ban that was announced by the County Police Commander, Mr Robinson W Mboloi, did not cite any section of the law under which it was made. Neither was the ban gazetted so as to make it official. In my view, a ban of such magnitude which was not followed by gazettement in the Kenya Gazette rendered the ban unlawful.

39. Section 51(1) (h) of the National Police Service Act that was pointed out by the state litigation counsel gives general powers to the police to take all necessary steps to prevent the commission of offences and public nuisance. In my view the section does not give the police blanket power to act in any manner they may want. Any decision they make has to be within the law. The respondents have not demonstrated that the ban was lawful. They have not cited any rule under the Traffic Act that gives them such sweeping powers as indefinite banning of motor cycles from gaining access to the central business district of a town. In my view the 1st Respondent acted without jurisdiction and therefore the ban was unlawful.

40. Article 47 of theConstitution guarantees the petitioner the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Article 47(2) of theConstitution further provides that if a right or fundamental freedom of a person has been or is likely to be adversely affected by an administrative action, the person has the right to be given written reasons for the action. Article 47 of theConstitution has been implemented in the Fair Administrative Action Act (No 4 of 2015). Sections 4 and 5 of the Act provide as follows:4. Administrative action to be taken expeditiously, efficiently, lawfully etc(1)Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.(2)Every person has the right to be given written reasons for any administrative action that is taken against him.(3)Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision–(a)Prior and adequate notice of the nature and reasons for the proposed administrative action;(b)An opportunity to be heard and to make representations in that regard;(c)Notice of a right to a review or internal appeal against an administrative decision, where applicable;(d)A statement of reasons pursuant to section 6;(eNotice of the right to legal representation, where applicable;(f)Notice of the right to cross-examine or where applicable; or(g)Information, materials and evidence to be relied upon in making the decision or taking the administrative action.4(4)The administrator shall accord the person against whom administrative action is taken an opportunity to–(a)Attend proceedings, in person or in the company of an expert of his choice;(b))Be heard;(c)Cross-examine persons who give adverse evidence against him; and(d)Request for an adjournment of the proceedings, where necessary to ensure a fair hearing.(5)Nothing in this section, shall have the effect of limiting the right of any person to appear or be represented by a legal representative in judicial or quasi-judicial proceedings.(6)Where the administrator is empowered by any written law to follow a procedure which conforms to the principles set out in Article 47 of theConstitution, the administrator may act in accordance with that different procedure.5. Administrative action affecting the public(1)In any case where any proposed administrative action is likely to materially and adversely affect the legal rights or interests of a group of persons or the general public, an administrator shall–(a)Issue a public notice of the proposed administrative action inviting public views in that regard;(b)Consider all views submitted in relation to the matter before taking the administrative action;(c)Consider all relevant and materials facts; and where the administrator proceeds to take the administrative action proposed in the notice-(d)(i) Give reasons for the decision of administrative action as taken;(ii)Issue a public notice specifying the internal mechanism available to the persons directly or indirectly affected by his or her action to appeal; and(iii) Which such appeal shall be lodged.

41. The administrative action taken by the 1st respondent in this matter was likely to affect the rights and fundamental freedoms of the members of the ex parte applicant. The 1st respondent was therefore obligated to comply with the provisions of sections 4 (5) of the Fair Administrative Actions Act. He did not do so and therefore the decision was null and void ab initial. The argument by the respondents that they needed to move with speed so as to contain the insecurity cannot be a justification for breaking the law.

42. The import of Article 47 of theConstitution was noted by the Court of AppealCivil Appeal No 52 of 2014 the Judicial Service Commissioner v Hon Mr Justice Mbalu Mutava & another [2015] eKLR where the court held as follows:-'Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subjected by article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.

43. In the instant case the respondents did not act fairly in the process of taking the decision by failing to ensure the participation of the applicant or its members yet the decision was bound to have an adverse effect on the said members. The decision was thus tainted with procedural impropriety.

44. Article 40 of theConstitution provides the right to acquire and own property. The applicant submitted that the ban was made without balancing the various interests at stake, was too broad and was not made within the bounds of the applicable statutes and theConstitution. That the ban failed to satisfy the condition for limitation of rights and fundamental freedoms under Article 24(1) of theConstitution, to wit;Limitation of rights and fundamental freedoms. 24. (1) \A right of fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that The limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including –(a)The nature of The right or fundamental freedom;(b)The importance of The purpose of The limitation;(c)The nature and extent of The limitation;(d)The need to ensure that The enjoyment of rights and fundamental freedoms by any individual doses not prejudice The rights and fundamental freedoms of others; and(e)The relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

45. It was submitted that the 1st respondent failed to consider and balance all these factors and therefore that the decision was unreasonable and irrational. The state on the other hand submitted that the right to property is not a non-derogable right. That it is not one of the rights under Article 25 that cannot be limited. It can thus be limited as was held in the case ofMtana Lewa v Kahindi Ngala Mwagandi (2015) eKLR. Therefore, that in imposing the ban due to increased insecurity the 1st respondent did not violate the applicant members` rights to property.

46. There is no question that the right to property under article 40 of theConstitution can be limited. Article 24 of theConstitution specifies the parameters under which a limitation of a right can be done. In this case the ban was indefinite and no consideration was made to the extent of the limitation. There was no time frame within which the ban would last. It does not appear that there was consideration on whether there were less restrictive means to achieve the purpose of the ban. In my view the ban did not comply with the dictates of theConstitution.

47. The Litigation Counsel submitted that judicial review remedies are discretionary and are only issued after the court weighs various considerations. That the court should in this case dismiss the application for orders of Certiorari and Prohibition irrespective of whether the court may find that the said orders lie. Further that the order of prohibition does not lie as the 1st respondent has already effected the ban.

48. The Applicant is seeking for orders of certiorari to remove to the High Court and quash the decision of the 1st Respondent of banning motor cycles from accessing and entering Marsabit town Central Business District. In the case of Kenya National Examination Council –vs- Republic in ex parte Geofrey Gathienji Njoroge, Civil Appeal no 266 of 1996 the Court of Appeal discussed the circumstances under which the prayer of Certiorari can issue. Said the court:'An order of certiorari will issue if the decision is made without or in excess of jurisdiction or where the rules of natural justice are not complied with or for such like reasons.'

49. The respondents have not shown any exceptional circumstances on why orders of certiorari should not issue in this case. Having made a finding that the 1st respondent had no power to make the impugned decision and that the same was made in contravention of the law, it is my firm conviction that the decision should be quashed. The application for order of certiorari by the ex parte Applicant is thus allowed. Consequently, the application by the respondents for stay of the orders of this court issued on January 19, 2022 is declined.

50. The ex parte Applicant is also seeking for an order of Prohibition restraining the respondents from banning motor cycles from entering and accessing Marsabit town Central Business District. In the same case of Ex parte Geoffrey Gathenji Njoroge (supra), the court said the following on the order of Prohibition:'Prohibition looks to the future so that if a tribunal were to announce in advance that it would consider itself not bound by the rules of natural justice the High Court would be obliged to prohibit it from acting contrary to the rules of natural justice. However, where a decision has been made, whether in excess or lack of jurisdiction or whether in violation of the rules of natural justice, an order of prohibition would not be efficacious against the decision so made. Prohibition cannot quash a decision which has already been made; it can only prevent the making of a contemplated decision. Prohibition is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings.'

51. In the instant case a decision has already been made. An order of prohibition does not lie where a decision has already been made. The order of Prohibition is therefore declined.

52. On the issue of contempt of court against the 1st and 3rd respondents with regard to orders granted by this court on January 19, 2022, the 1st respondent denied that they disregarded the court order. He said that those motorists who were arrested after the court issued the orders were arrested for breaking traffic rules and not as an enforcement of the ban. The applicant has not shown that those of their members who were arrested after the court issued the orders were arrested as part of effecting the ban and not as a result of breaking traffic rules. The ex parte Applicant has not proved that the 1st and 3rd Respondents were in contempt of court order.

53. The 1st Respondent further sought that the court makes an order for forfeiture and destruction of some unregistered motor cycles lying at Marsabit Police Station. This prayer has nothing to do with judicial review. It should have been made under the Traffic Act in the court with the requisite jurisdiction. The orders sought thereto are therefore declined.

54. In the final end, the application to issue an order for certiorari is allowed while the other orders sought in the respective applications are dismissed. The court therefore makes the following orders:(1)This Court issues judicial review orders in form of Certiorari bringing into this court for purpose of quashing the directive of the 1st Respondent issued on December 4, 2021 banning all motor cycles from accessing, entering, ingress, or egress of Marsabit Town and all consequential orders arising thereto.(2)The order for Prohibition sought by the ex parte applicant is refused.(3)The application by the ex parte Applicant for contempt of court against the 1st and the 3rd Respondents is dismissed.(4)The application by the Respondents dated January 26, 2022 seeking for stay of the orders of this court issued on January 19, 2022 is dismissed.

55. The ex parte Applicant to have the costs of the applications.

DELIVERED, DATED AND SIGNED AT MARSABIT THIS 3RD DAY OF NOVEMBER 2022. J. N. NJAGIJUDGEIn the presence of:N/A for ex parte ApplicantMr. W. Nguyo for RespondentsCourt Assistant - Peter30 days R/A.