REPUBLIC v TRANSPORT LICENSING BOARD, COMMISSIONER OF POLICE, ATTORNEY GENERAL & PERMANENT SECRETARY MINISTRY OF LOCAL GOVERNMENT [2008] KEHC 2758 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Misc. Civ. Appli. 130 of 2008

REPUBLIC

VERUS

TRANSPORT LICENSING BOARD  ................................................................................ 1ST RESPONDENT

THE COMMISSIONER OF POLICE ................................................................................ 2ND RESPONDENT

THE HONOURABLE ATTORNEY GENERAL  ..............................................................  3RD RESPONDENT

PERMANENT SECRETARY

MINISTRY OF LOCAL GOVERNMENT  .....................................................................  4TH RESPONDENT

EX-PARTE

MIKE MUSA MUNGA  ............................................................................ 1ST APPLICANT/RESPONDENT

JAMES NYARANGI  …………..…………………..……………….…..  2ND APPLICANT/RESPONDENT

MAUREEN NGUMI  …..................................................................…….  3RD APPLICANT/RESPONDENT

HILDA INDAKWA  ……….................................................................…  4TH APPLICANT/RESPONDENT

ANDREW MUTHEE  ……............................................................……..  5TH APPLICANT/RESPONDENT

PETER KARIUKI  ...................................................................................  6TH APPLICANT/RESPONDENT

SAMWEL MWAURA  ............................................................................ 7TH APPLICNT/RESPONDETNT

ANDREW BWOGE  ..............................................................................  8TH APPLICANT/RESPONDENT

AND

THE CITY COUNCIL OF NAIROBI  .......................................... 1ST INTERESTED PARTY/APPLICANT

THE KENYA BUS SERVICE LTD  ................................................  2ND AFFECTED/INTEESTED PARTY

THE CITY HOPPER LTD  ...........................................................  3RD AFFECTED/INTERESTED PARTY

THE DOUBLE AUTO TECH LTD ..............................................  4TH AFFECTED/INTERESTED PARTY

THE PERMANENT SECRETARY

MINISTRY OF TRANSPORT  ...................................................  5TH AFFECTED/INTERESTED PARTY

THE REGISTRAR OF

MOTOR VEHICLE  ..........................................................................  AFFECTED/INTERESTED PARTY

RULING

I have considered the arguments of the Applicant, 1st Interested Party Counsel, and the arguments of the 1st to 4th Respondents’ Counsel and 5th and 6th Interested Party including the arguments of the 3rd Interested Party Counsel concerning the Application to vacate or set aside the exparte orders of the 27th March 2008 made by the then Vacation Judge.

Counsel for the Applicant/Respondents has declined to respond to the arguments of the applicant Interested Party and the other two Counsel.

It is not controverted that the decision to reorganise parking and routes in the City of Nairobi, is the subject matter of the Bylaws entitled the City of Nairobi (Omnibus Stations) Amendment Bylaws 2008 which were not in turn, disclosed or availed to the Vacation Judge when he gave the exparte order.

Pursuant to s 69 of the Interpretation and General Provisions Act Cap 2, the publication of the Bylaws is a notice to all.  The Applicants respondents are therefore deemed to have been aware of the Bylaws upon their publication on 20th March 2008.

It is also clear to the Court that on the issue that the Applicants/Respondents had not been notified - this was also a concealment of a material fact in that there was a public notice of the making of the Bylaws on 6th October, 2006 and objection to them had been invited within 12 days of the Notice.

I therefore rule that on a prima facie basis, there was a serious nondisclosure of material facts which could have materially affected the granting of the order.

On the issue of public interest I reiterate what I observed on a tentative basis in HCMS 133/2008 R v PERMANENT SECRETARY MINISTRY OF LOCAL GOVERNMENT ex-parte Immaculate Transporters & 18 othersthat in traffic matters there cannot be greater public interest than the smooth flow of traffic, order and discipline.

On the issue of the alleged discrimination I rule on a tentative basis that there cannot be discrimination in law unless the difference in treatment is not based on a legitimate purpose.  In this case the differentiation in treatment is apparently based on the need to decongest the City by having few operators and defined routes.

For the above reasons I vacate the order granted on 27th March 2007 in so far as it ordered that leave operates as stay, but I leave the order for leave intact.  I award costs to the Applicant 1st the Respondents and 3rd Interested Party to the extent of participation.

It is so ordered 14th day of May 2008.

J.G. NYAMU

JUDGE