[2022] KEHC 1741 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT HOMA BAY

MISCELLANEOUS CIVIL APPLICATION NO. 2 OF 2020

DOMINIC MARIGA ONGERA..............................................................APPLICANT

VERSUS

HOMA BAY COUNTY GOVERNMENT....................................1ST RESPONDENT

CCEM FINANCE ECONOMIC PLANNING

& SERVICE DELIVERY................................................................2ND RESPONDENT

ATTORNEY GENERAL................................................................ 3RD RESPONDENT

RULING

1. Dominic Mariga Ongera, the applicant herein moved the court by way of Notice of Motion dated 8th June, 2020 under sections 1A, 1B & 3A of the Civil Procedure Act, Order 53 Rule 1 (1), (2) (3) & (4) of the Civil Procedure Rules and sections 8 & 9 of the Law Reform Act, He is seeking the following orders:

a) The honorable court do issue an order of certiorari directed CECM Finance, economic planning and service delivery Homa Bay county quashing its decision in respect of the new charges for transportation of quarry materials out of Homa Bay county dated the 12th day of 2020.

b) The honourable court do issue an order of certiorari directed CECM finance, economic planning and service delivery Homa Bay county quashing publication of the Homa Bay County Finance Act in the Kenya Gazette notice dated the 30th day of April 2020.

c) The honourable court be pleased to issue an order for costs to be awarded to the applicant.

2. The application is premised on the following grounds:

a) The ex-parte applicant is one of the truck owners transporting sand and quarry materials outside Homa Bay County on hire.

b) That the County Government of Homa Bay has increased charges for transportation of quarry materials out of the county making it difficult for the truck owners to afford to do business more especially during this time of covid 19 pandemic.

c) That the applicant has been operating this business for many years now and there are a lot of expenses involved in the business and increasing charges for the truck owners is overburdening them.

d) That truck owners were not involved or consulted in the decision to increase the charges and furthermore no notices to increase the charges were given.

3. The 1st and the 2nd respondents opposed the application on the following grounds:

a) That stakeholders were invited through a newspaper advertisement to submit their proposals and participate in the public hearing that preceded the promulgation of the Act.

b) That the application does not meet the threshold for the orders sought.

4. Certiorari is a discretionary remedy which the court may refuse to grant even when the requisite grounds exists. In Republic v Anti-Counterfeit Agency & 2 others ex parte Surgippharm Limited [2015] eKLRthe court addressed itself as follows:

…in Halsbury’s Laws of England 4thEdn. Vol. 1(1) para 12 page 270:

“The remedies of quashing orders (formerly known as orders of certiorari), prohibiting orders (formerly known as orders of prohibition), mandatory orders (formerly known as orders of mandamus)…are all discretionary. The Court has a wide discretion whether to grant relief at all and if so, what form of relief to grant. In deciding whether to grant relief the court will take into account the conduct of the party applying, and consider whether it has not been such as to disentitle him to relief. Undue delay, unreasonable or unmeritorious conduct, acquiescence in the irregularity complained of or waiver to the right to object may also result in the court declining to grant relief. Another consideration in deciding whether or not to grant relief is the effect of doing so. Other factors which may be relevant include whether the grant of the remedy is unnecessary or futile, whether practical problems, including administrative chaos and public inconvenience and the effect on third parties who deal with the body in question, would result from the order and whether the form of the order would require close supervision by the court or be incapable of practical fulfilment. The Court has an ultimate discretion whether to set aside decisions and may decline to do so in the public interest, notwithstanding that it holds and declares the decision to have been made unlawfully. Account of demands of good public administration may lead to a refusal of relief. Similarly, where public bodies are involved the court may allow ‘contemporary decisions to take their course, considering the complaint and intervening if at all, later and in retrospect by declaratory orders.

5. Public participation is crucial in matters that would affect the public in general. The respondents contended that the Homa Bay county Finance Act under which the charges complained of was passed after public participation. It was incumbent on the applicant to prove on a balance of probabilities that the same was not subjected to public participation. Other than merely alleging that stakeholders were not involved, he did not seek to establish that allegation.

6. The respondents produced evidence to show that the Homa Bay County Bill, 2019 was advertised in the Standard newspaper of 22nd October, 2019. They also exhibited copy of Kenya gazette dated 30th April, 2020 where the complained of charges were part of the Homa Bay County Finance Act, 2020.

7. When one reads the averments of the applicant, one is tempted to conclude that his was dissatisfaction with the new levies and not the issue of public participation. He invokes the presidential directive owing to covid.

8. The application therefore cannot be the basis for an order of certiorari. I accordingly dismiss it with costs.

DELIVEREDandSIGNEDatHOMA BAYthis9th Dayof March, 2022

KIARIE WAWERU KIARIE

JUDGE.