https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6213

2NK Sacco Society Limited v County Government of Nyeri (Constitutional Petition E8B of 2023) [2026] KEHC 6213 (KLR) (8 May 2026) (Judgment) Neutral citation: [2026] KEHC 6213 (KLR) Republic of Kenya In the High Court at Nyeri Constitutional Petition E8B of 2023 MA Odero, J May 8, 2026 Between 2NK Sacco Society Limited Petitioner and County Government of Nyeri Respondent Judgment 1.Before this Court is the Petition dated 6th December 2023 by which the Petitioner 2NK Sacco Society Limited sought the following orders:-“1.That this Honourable Court may be pleased to find that the petition involves and/or raises serious weighty Constitutional issues, under of the Constitution of Kenya, 2010, and of law and regarding;a.The legality and/or validity of the Respondent purporting to deny the Petitioner’s Matatus from operating [ab] Mukurwe-ini Terminus.b.That the Respondent may be to allow their operating thereat immediately and unconditionally.2.That this Honourable Court may be pleased declare the Respondent’s action (s) against the Petitioner invalid, illegal and unconstitutional and lacking in factual and/or evidential basis.3.That this Honourable Court may order the Respondent County Government to pay full costs of this petition. 2.The Petition was premised upon Articles 19, 20, 21, 22, 27, 36 and 43 of the Constitution of Kenya 2010 and was supported by the Affidavit of even date sworn by Godfrey Gachoki Wairia, A Director Of The Petitioner Sacco. 3.The Respondent County Govenrment Of Nyeri opposed that petition through the Replying Affidavit dated 3rd June 2025 sworn by Benjamin Gachichio the County Secretary. 4.The matter was canvassed by way of written submissions. The Petitioner filed the written submissions dated 6th February 2026 whilst the Respondents relied upon their submissions dated 7th February 2026. Background 5.The Petitioner 2NK SACCO a limited liability company engaged in passenger transport and courier service within Kenya, applied to the Respondent seeking consent to operate their transport services from Mkukurwe-ini terminus. The said permission was granted after payment of the requisite fees. The Petitioner also obtained a letter of non-objection from the National transport and safety Authority (NTSA) which allocates routes. 6.The Petitioners claim that the Respondents have now back-tracked another decision and have declined to allow their sacco to operate from the Mukurwe-ini terminus thereby violating the petitioners constitutional right to engage in economic activity, hence the present petition. 7.The Respondent in their reply, confirmed that they did grant to the Respondent consent to operate from the Mukurwe-ini terminus. They state that the petitioner for reasons best known to themselves failed to utilize that terminus. The Respondents deny in any manner whatsoever having violated the petitioner’s constitutional right. They term this present application as an abuse of court process and urge the court to dismiss the same. Analysis and Determination 8.I have carefully considered the Petition before this court, the reply filed thereto, as well as the written submissions filed by both parties. The three questions which emerge for determination are;-(i)Has the Petition met the threshold for a constitutional petition.(ii)Were the Petitioner’s rights infringed.(iii)Is the Petitioner entitled to damages. Threshold for a Constitutional Petition 9.The threshold for a constitutional petition were set out in the case of Anarita Njeru -vs- Republic [1997] KLR, where the Court held that:-“We would however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) 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…..” 10.Similarly in Communications Commission Of Kenya & Others -vs- Royal Media Services Limited & 5 Others [2014] eKLR the Court stated that“Although article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v Republic, (1979) KLR 154:The necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such principle plays a positive role as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.” 11.The court while considering the elements of a sustainable Constitutional Petition in Grays Jepkemoi Kiplagat v Zakayo Chepkoga Cheruiyot [2021] eKLR stated that:-“It is indisputable that a constitutional petition to be sustainable as such must at a minimum satisfy a basic threshold. It must with some reasonable degree of precision identify the constitutional provisions that are alleged to have been violated or threatened to be violated and the manner of the violation and/or threatened violation. I do not suppose it is enough to merely cite constitutional provisions. There has to be some particulars of the alleged infringements to enable the respondents to be able to respond to and/or answer to the allegations or complainants….. Although I have in my foregoing discussion adverted to grounds (c) and (d) of the preliminary objection that there are no Constitutional issues that warrant adjudication by the Court and that the Petition may very well constitute an abuse of the due process of the court, I need to observe that parties are increasingly filing matters that are essentially Civil matters and christening the same as Constitutional Petitions which is not proper. Where there is the alternative remedy of filing a suit in the ordinary civil Courts, a party ought to invoke the jurisdiction of the Constitutional Court.” [Own emphasis] 12.Rule 4(1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms Practice and Procedure Rules 2013 (the Mutunga Rules) provides as follows:-“Where any right or fundamental freedom provided for in the Constitution is allegedly denied, violated, or infringed, or threatened a person so affected or likely to be affected, may make an application to the High Court in accordance to these rules.” 13.Rule 10 of the “Mutunga Rules” governs the form that a constitutional petition should take Rule 10(2) of the said Rules specifically provides as follows:“(2)The petitioner shall disclose the following -a.The petitioner’s name and address;b.The facts relied upon;c.The constitutional provision violated;d.The nature of injury caused or likely to be caused to the petitioner or the person in whose name the petitioner has instituted the suit; or in a public interest case to the public, class of persons or community;e.Details regarding any civil or criminal case, involving the petitioner or any of the petitioner, which is related to the matters in issue in the petition;f.The petition shall be signed by the petitioner or the advocate ofg.The petitioner; andh)The relief sought by the petitioner.” 14.Guided by the above Rules I find that the Petitioner’s name and full address have been supplied as required. The petition clearly set out a factual background and the alleged contraventions of the Constitution were enumerated in the petition. The petition was duly signed by counsel for the Petitioners and the reliefs being sought were clearly stated. I am satisfied that the Petition as presented does meet the required threshold for filing a constitutional petition. 15.The Petitioner claims that despite having given consent to them to operate from Mukurweini terminus and despite the petitioner having secured a letter of no objection from NTSA, the Respondents later backtracked and refused to allow their vehicles to operate from that terminus. 16.It is trite law that he who alleges must prove. It is a general proposition of the law that the legal burden of proof lies upon the party who invokes the aid of the law. Section 107(1) of the Evidence Act (Chapter 80 of the Laws of Kenya) provides as follows:-“ 107.(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” 17.Sections 109 and 112 of the same Act provide that:“ 109.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. “112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.” 18.The two provisions of the law were dealt with in the decision of Anne Wambui Ndiritu -vs- Joseph Kiprono Ropkoi & Another [2005 1 EA 334, in which the Court of Appeal held as follows:“As a general proposition under Section 107(1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.” 19.Similarly in Gatirau Peter Munya vs Dickson Mwenda Kithinji & 3 Others (2014) eKLR the Supreme Court held inter alia:The person who makes such allegations must lead evidence to prove the fact. She or he bears the initial legal burden of proof, which she or he must discharge. The legal burden in this regard is not just a notion behind which any party can hide. It is a vital requirement of the law. On the other hand, the evidential burden is a shifting one, and is a requisite response to an already discharged initial burden. The evidential burden is the obligation to show if called upon to do so, that there is sufficient evidence to raise an issue as to the existence of a fact in issue.” 20.The Petitioner has not presented before this court any evidence to show that they have been denied access to Mukurwe-ini terminus. The Respondent on their part have denied reneging on their decision to allow the petitioners access to the said terminus and claim that it is the petitioners who for reasons best known to themselves have declined to utilize that terminus. 21.There is nothing to show that the Respondents have backtracked on the permission earlier granted. The Petitioner did not annex any affidavits, statements etc from any witness e.g their drivers, touts etc to corroborate their claim of denial of permission to use the Mukurwe-ini terminus. Thus there exists no evidence of any violation of the Petitioners right to economic activity. 22.The allegations that the Respondents have violated the petitioner’s constitutional right to freedom from discrimination has also not been proved. 23.Given the findings above I see no need to delve into the question of damages. Finally I find no merit in this petition. The same is dismissed in its entirety. Costs to be met by the Petitioner. DATED IN NYERI THIS 8TH DAY OF MAY 2026……………………MAUREEN A. ODEROJUDGE