[2009] KEHC 3268 (KLR)
The court found that although the application for conservatory orders was urgent and certified it as such, it could not grant the orders sought without hearing the respondents. The Legal Notice in question had been issued over a year prior, and the court was not in a position to determine the consequences of...
Source-derived case information.
- Citation
- [2009] KEHC 3268 (KLR)
- Parties
- Applicant: Express Connections Limited; Applicant: Michael Kanyago; Applicant: Commutertrain Shuttle Transport Ltd; Applicant: Sylvester Githinji; Applicant: Stateline Express (K) Ltd; Applicant: Fredrick Waiganjo; Applicant: Elizabeth Wangari Mwangi; Applicant: Express Link Ltd; Applicant: Integrity East Africa Ltd; Applicant: Rose Mbuya Mugo; Applicant: Samuel Kinyanjui; Applicant: John Odhiambo; Respondent: The Attorney General; Respondent: The City Council of Nairobi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 337 of 2009
- Procedural Posture
- Constitutional Petition / Ruling on Urgent Application for Conservatory Orders
- Outcome
- Application for conservatory orders declined at this stage; matter certified urgent and set for inter partes hearing.
- Legal Topics
- Fundamental Rights, Discrimination, Conservatory Orders, Public Transport Regulation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Express Connections Limited
Applicant
Michael Kanyago
Applicant
Commutertrain Shuttle Transport Ltd
Applicant
Sylvester Githinji
Applicant
Stateline Express (K) Ltd
Applicant
Fredrick Waiganjo
Applicant
Elizabeth Wangari Mwangi
Applicant
Express Link Ltd
Applicant
Integrity East Africa Ltd
Applicant
Rose Mbuya Mugo
Applicant
Samuel Kinyanjui
Applicant
John Odhiambo
Applicant
The Attorney General
Respondent
The City Council of Nairobi
Respondent
Procedural Posture
Constitutional Petition / Ruling on Urgent Application for Conservatory Orders
Legal Issues
- 1 Whether the petitioners' fundamental rights and freedoms under the Constitution were contravened by the issuance of Legal Notice No. 37 of 2008 restricting their access to the Central Business District.
- 2 Whether the petitioners are entitled to conservatory orders restraining the respondents from interfering with their business pending hearing of the application.
Ratio Decidendi
The court found that although the application for conservatory orders was urgent and certified it as such, it could not grant the orders sought without hearing the respondents. The Legal Notice in question had been issued over a year prior, and the court was not in a position to determine the consequences of granting the conservatory orders ex parte. The court emphasized the need for fairness and due process, requiring that all parties be heard before any interim orders affecting rights and obligations are made. Therefore, the court declined to grant the conservatory orders at this stage and directed that the application be served and set for inter partes hearing.
Court Disposition
Application for conservatory orders declined at this stage; matter certified urgent and set for inter partes hearing.
Orders
- The Chamber Summons dated 10th June, 2009 is certified as urgent.
- It will be served on the respondents immediately.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Petition 337 of 2009
IN THE MATTER OF THE ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER SECTIONS 75, 81, 82 & 84 OF THE CONSTITUTION OF KENYA
BETWEEN
EXPRESS CONNECTIONS LIMITED…………………….. 1ST PETITIONER
MICHAEL KANYAGO…………………………………..…….2ND PETITIONER
COMMUTERTRAIN SHUTTLE TRANSPORT LTD...…….3rd PETITIONER
SYLVESTER GITHINJI..………………………………...........4th PETITIONER
STATELINE EXPRESS (K) LTD..……………………….......5th PETITIONER
FREDRICK WAIGANJO.…………….………………………..6th PETITIONER
ELIZABETH WANGARI MWANGI.…………………………. 7th PETITIONER
EXPRESS LINK LTD…………………..……………………. 8th PETITIONER
INTEGRITY EAST AFRICA LTD……….………….……….. 9th PETITIONER
ROSE MBUYA MUGO..…………………...…………..….....10th PETITIONER
SAMUEL KINYANJUI…………………………………....…. 11th PETITIONER
JOHN ODHIAMBO………………………………………….. 12th PETITIONER
-V E R S U S-
THE ATTORNEY GENERAL……………........…………. 1ST RESPONDENT
THE CITY COUNCIL OF NAIROBI…………….........….. 2ND RESPONDENT
R U L I N G
A petition was filed on behalf of 12 petitioners on 11th June, 2009. It was filed by Kamau Kuria & Kiraitu advocates on behalf of the petitioners. It was filed under section 75, 81,82 & 84 of the Constitution of Kenya. The allegations are with regard to contravention of fundamental rights and freedoms regarding with respect to Legal Notices published restricting or preventing the petitioner’s public service commercial motor vehicles from operating or reaching the Central Business District in Nairobi.
In addition to the said petition, there was filed on the same date, a Chamber Summons under Rule 20 and 21 of the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules 2006. This Chamber Summons is an application for conservatory orders. Prayer 3, seeks that, pending the hearing and determination of the application (Chamber Summons), the respondents who are named as THE ATTORNEY-GENERALand CITY COUNCIL OF NAIROBI and their servants and agents be restrained from interfering with the petitioners business of transporting customers to Kencom, Ambassador and Gill House bus terminus within the Central Business District as authorized by their TLB licences.
Dr. Kamau for the petitioners addressed me on this prayer 3. Counsel argued that the application was urgent, and that the granting of the prayer was justified pending the serving and hearing of the Chamber Summons inter-partes, as his clients were suffering great financial losses, and there was discrimination as other public service transporters were allowed to operate to the Central Business District, which was discrimination contrary to the Constitution.
Having considered the facts placed before me, I am of the view that the Chamber Summons is urgent. I will certify the same as urgent and fix a date for inter partes hearing.
As for prayer 3, I have considered the surrounding circumstances. The Legal Notice complained of which is L.N. No. 37 of 2008, appears to have been issued more than one year ago. I have not had the opportunity to hear the other parties, and cannot therefore fathom the consequences, if I grant the said prayer for conservancy orders at this stage. I will have to hear all parties involved before I can consider making any conservatory orders.
Consequently, I order as follows-
1. The Chamber Summons dated 10th June, 2009 is certified as urgent.
2. It will be served on the respondents immediately.
3. Hearing inter partes on 24th June, 2009.
4. In the meantime, I decline to grant prayer3.
Dated and delivered at Nairobi this 19th day of June, 2009.
George Dulu
Judge.
In the presence of-
Dr. Kamau & Ms. Mwangi for petitioner/applicants
Kevin Court Clerk.