[2017] KEHC 1753 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

PETITION NO. 15 OF 2015

ABDUL MAJID SULEMAN (Suing on his own behalf and also as

Legal representative of the estate of

ABDUL AZIZ SULEMAN-Deceased.....................................1st PETITIONER

KULSUM SULEMAN............................................................2ND PETITIONER

AMINA SULEMAN................................................................3RD PETITIONER

ABDUL LATIF SULEMAN.....................................................4TH PETITIONER

ZAINAB SULEMAN...............................................................5TH PETITIONER

VERSUS

THE COUNTY GOVERNMENT.................................................RESPONDENT

AND

MEMAT SACCO LIMITED.......................................1ST INTERESTED PARTY

RUMETO SACCO LIMITED....................................2ND INTERESTED PARTY

MERU COUNTY CABS ASSOCIATION.................3RD INTERESTED PARTY

J U D G M E N T

Background:

1. Petitioners are individuals who operate a business trading as Mohammed Moti & Sons Ltd situated on Plot No. Meru Municipality Block 11/84 and 85. Which plots are situated in Meru town. Respondent is the County Government of Meru. The Interested Parties were enjoined in this suit on 23. 09. 15. They are Matatu/ taxi operators and they carry out their operations from a parking space next to Petitioners plots. This parking space is the subject matter of the suit.

Petitioners Case:

2. The Petitioners state that, adjacent to their Plot No. Meru Municipality Block 11/84 and 85, there lies a vacant Plot/space reserved for public utility and which by virtue of it being public utility land, it falls under the jurisdiction and management of the Respondent herein.

3. The Petitioners state that in or around the month of January, 2015 the Respondent, without any consultation, notification or communication to the Petitioners , converted the said vacant space/plot into a parking /waiting stage for dropping and picking passengers for the taxis operating on the Meru Town-Makutano route, in essence converting the same into a matatu terminus.

4. The Petitioners state that the decision by the Respondent to convert the said plot/space into a taxi (Matatu) stage (terminus) is not conducive to the Petitioners’ business in view of the commotion risks and all other natural behavioral and characteristic dynamics associated with the Matatu Industry which includes, but are not limited to, noisy hooting’s, hecklings, congestion incessant fights amongst touts, loitering, touting and other health and security risk.

5. The Petitioners further state that the said plot/space had been utilized by the Petitioners as a landing/loading zone for its business as well as a parking bay for over 60 years and that the decision by the Respondent to convert the same into a matatu terminus without consultation with the Petitioner is a violation of the Petitioners’ rights as guaranteed under Article 47 of the Constitution of Kenya, 2010 and also a violation of the provisions of Section 72 A of the Traffic Act which recognizes the interests of the Owners and Occupiers of the adjoining property before the designation of a parking places or matatu terminus.

6. The Petitioners further state that the said decision and action of the Respondent is likely to push the Petitioners out of business and will also lead to departure of the other business people within their premises, and who are tenants and who are now afraid of the risks of conducting businesses next to a matatu terminus due to the risks involved therein and also due to lack of parking lots as well as lack of landing and loading space.

7. The Petitioners further state that amongst their tenants, is G4S Kenya Limited, a well-known firm that combines both security and emergency response teams and whose work and service are being hindered by the matatu business due to lack of parking lots, obstruction and other risks that may hinder or affect their instant emergency response services.

8. The Petitioners thus state that the Respondent’s decision and action is unconstitutional and a violation of the their rights and the same is also an economic sabotage which will automatically push the Petitioners out of business as well as render their massive investments on the property valueless.

9. Petitioner prayers are for:-

a) A declaration that the Petitioners have gained proprietary easement rights over that Plot or space adjacent to their Plot Nos. MERU MUNICIPALITY/ BLOCK 11/84 and 85 and have unequivocal rights to utilize the same together with their Tenants including G4S Kenya (who offer emergency and security services) as a landing/loading ground and parking lot.

b) A Declaration that the decision and action of the Respondent to convert the said plot/space into a parking or matatu terminus is unlawful and a violation of the Petitioners rights over the said plot/space and an infringement on the petitioner’s’ business.

c) An Order for a permanent injunction restraining the Respondent, its officers, agents, agents, servants and/or employers or whosoever else acting on the Respondent’s behalf or instructions from using the said plot/space as a matatu terminus or parking lot or in any other manner whatsoever interfering with the petitioner’s use of the said space as landing/loading ground.

10. It has been submitted for the Petitioners that the Petitioners and their tenants have for many years enjoyed unlimited and uninterrupted access and use of the plot in question a period of over that the conversion of the empty space into a matatu terminus without notice, communication or consultation with Petitioners has denied petitioners the peace enjoyment of user thereof for landing/loading purposes.

11. Petitioners contend that the directive of the Respondent was an infringement of the Petitioners Constitutional right on fair administrative action. It has also been submitted that under the Traffic Act, it is required that before designating any space as a parking bay for Matatu terminus, views should be sought from owners of adjoining property, something that the Respondent never did.

Respondent’s case;

12. One Jatham M. Kirimi has sworn an affidavit to the effect that he is the town administrator for Respondent. He avers that prior to 28th January, 2015, there was only one terminus for taxis located at Tuskys Supermarket which was serving over 400 taxis. This space allocated by the Respondent to Taxis operators was congested and there was a need to create another space.

13. On 28th January,2015, there was a meeting attended by the following;

a) Officials of Memati Sacco Ltd.

b) Officials of Rumeto Sacco Ltd.

c) Jotham M. Kirimi –Town Administrator.

d) Rajab Munga –Base Commander,Traffic Department, Meru.

e) Mr. Kosgey –OCPD Meru.

f) Mr.Karanja –Deputy Administrator Police Commandant, Meru.

g) Mr. Kiome Rimberia –MCA, Meru Municipality.

h) Mr.Mike Murithi Ikioo-Municipality Ward Administrator.

14. The above meeting resolved that another parking space/ terminus for taxis be created at the Respondent’s Plot next to Petitioners’ space to decongest the terminus next to Tuskys Supermarket. Further the meeting resolved that other terminus/parking space be designated next to Wapendwa Bookshop and Opposite Continental Hotel. All relevant stakeholders were consulted prior to designating the said terminus.

15. Further, the Respondent avers that all the above terminus are operating efficiently and the neighboring business owners have harmoniously co-existed with the Taxi Operators.

16. The Respondent states that the taxis terminus/parking space on Respondent’s Plot next to Petitioners’ Plots is currently serving Memati Sacco Ltd, Rumeto Sacco Ltd and Meru County Cabs Association. The members of the said Saccos includes taxis plying Makutano, Kenya Methodist University, Ruitu, Kithoka routes.

17. The aforementioned terminus is allegedly serving over 250 taxis and these persons have a right to earn their livelihood. They are using parking space owned by the Respondent and they have not encroached on the petitioner’s’ plots.

18. The Respondent also states that Petitioners have been allocated their parking spaces which they pay parking fees to the Respondent. The Taxis Operators also in the same manner pay fees to use the parking space to the Respondent.

19. The Respondent contends that if the Petition is allowed, then it means, wherever a matatu terminus will be moved; any person who is operating business next to the terminus can challenge the decision. Therefore, the taxi operators will be forced to move out of town and the interest of the public will be affected adversely and thousands of persons who are consumers of the services of the said taxis will be inconvenienced. There is greater public interest in retaining the terminus at current parking space than interfering with the same so says the Respondent.

20. For the Respondent it has been submitted that Petitioners have not demonstrated as to how their rights under the Constitution have been violated.

21. It is further submitted that this is a case of public interests over private interests. That the Interested parties are over 250 Taxi operators serving customers in their thousands who stand to be greatly inconvenienced if Petition is allowed. Further it is submitted that the interested parties are entitled to earn a living just like the Petitioners.

22. Undisputed facts:

That Petitioners are the registered proprietors of the parcels of land known as Meru/Municipality/Block 11/ 84 & 85.

That the space in dispute is adjacent to Petitioner’s aforementioned property.

That the space in question is public land in possession and management of the Respondent (the county government).

23. Issues for determination:-

1) Right to fair administration Action.

2) Easement Rights.

Fair administration action:

24. Petitioners have stated that the conversion of the adjacent space as a Matatu terminus has caused obstruction and interfered with the use of their premises along with their tenants as well as the use of the plot as a loading/landing bay. Petitioners were therefore adversely affected by Respondents.

25. It is evident that the Respondent did take steps to consult widely in arriving at the decision. However, Respondent did not consult the Petitioners.

26. I have taken account of the background against which the decision was made. Prior to 28:1: 2015, there was only one terminus for taxis and it was located next to Tuskys supermarket. It was apparently serving over 400 taxis. The terminus was very congested and there was need to create more space.

27. It follows that the meeting of 28:1:2015 was concerned with the issue of getting a solution to the congestion problem at the Tuskys supermarket terminus. Therefore, at that point, the petitioners could not have been involved.

28. Further, I note that in the decision made on 28:1:2015, other terminus were created, not just the one outside the petitioner’s premises. For instance Wapendwa bookshop was affected and so was the space opposite continental hotel.

29. It is not lost to this court that the town of Meru still experiences traffic congestion. If this court was to allow the petitioners to have the space in question, this would only aggravate an already bad situation in terms of vehicle congestion.

30. Finally, I find that amongst the people present in the meeting of 28:1; 2015 was one Kiome Rimbere, a member of county assembly for Meru Municipality and Mike Muriithi, the municipal ward administrator. These are persons who can be termed as representing the people including the petitioners.

31. I am inclined to find that Respondent made efforts to uphold the national values of transparency, accountability and participation of the people in an attempt to resolve a chronic problem of vehicle congestion.

32. I am therefore in agreement with Respondents submissions that consultation does not mean to request every individual person to give his opinion prior to a public body arriving at a decision as was held inShree visa Oshwal community Nairobi Registered trustees v. Attorney General and 3 others(2014) eKLR.

33. I conclude that the petitioner’s rights to fair administration act have not been violated.

Easement rights

34. It is not disputed that the taxi Matatu terminus was set up in 2015. It is likely that Petitioners were the ones using the plot for many years there before. However the space in dispute was and remains public land under the management of the Respondent.

35. The rights that Petitioners desire to have include use of the space for parking and loading bay for their businesses and for their tenants. This would mean that Petitioners would be in exclusive possession of the Plot. S. 138 (2)(b) of the land act stipulates that:-

“The rights capable of being created by an easement do not include any right to the Exclusive possession of any land.”

36. It follows that the space in question should not be alienated for the exclusive benefit of the Petitioners more so when the land in question is public land”.

37. As rightly submitted by the interested parties, they too have a right to earn a living.

38. This court is mandated to uphold the national values and principles set out under article 10 of the constitution which include “human dignity, equity, social justice, inclusiveness, equality, human right and non-discrimination …” It is therefore a balancing act, weighing the rights of the petitioners vis a vis those of other citizens in terms of beneficial interests in public land.

39. Petitioner’s claim on easement rights fails.

Conclusion:

40. The Petition is hereby dismissed. Each party to bear their own costs of the suit.

DELIVERED, SIGNED AND DATED IN OPEN COURT AT MERU THIS 6TH DAY OF DECEMBER, 2017 IN THE PRESENCE OF:-

Court Assistant: Janet

Petitioners Present

B.G Kariuki H/B for Kariuki for Respondent Present

Igweta for Interested Parties

HON. L. N. MBUGUA

ELC JUDGE