[2022] KEHC 9866 (KLR)

Guardian Coach Limited v Nairobi City County & 2 others (Commercial Case 232 of 2016) [2022] KEHC 9866 (KLR) (Commercial and Tax) (14 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9866 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Commercial Case 232 of 2016

DAS Majanja, J

July 14, 2022

Between

The Guardian Coach Limited

Plaintiff

and

The Nairobi City County

1st Defendant

The Directorate of Roads, Transport and Public Works

2nd Defendant

The Kenya Railways Staff Retirement Benefits Scheme

3rd Defendant

Judgment

Introduction and Background 1. The Plaintiff is a limited liability company and is a tenant of the Interested Party on the property known as LR. No. 209/12401(“the suit property”), where it operates a parking space, passenger and luggage collection point for their fleet of motor vehicles known as Guardian Coach and Guardian Tablets.

2. The 2nd Defendant is a department constituted by the 1st Defendant and is mandated to perform certain duties for and on behalf of Nairobi County. Since the 2nd Defendant is a department of the 1st Defendant, it lacks legal personality and cannot be sued as such, I shall refer to the 1stDefendant as the Defendant.

Plaintiff’s Case 3. On June 16, 2016, the Plaintiff filed this suit claiming that on June 15, 2016, the Defendant, acting beyond their mandate, raided, clamped and grounded its motor vehicles while purporting to collect parking charges over the suit property, which the Plaintiff claims is the Interested Party’s private property. The Plaintiff thus seeks the following prayers in its Plaint:a.A permanent order of injunction to issue restraining the Defendant, its officers, agents, employees, functionaries or officials from raiding, encroaching upon, clamping, towing, seizing, impounding and in any way whatsoever interfering with the Plaintiff’s fleet of motor vehicles, vans and buses parked at and in the business of picking passengers from the parking lot on land parcel LR. No. 209/12401(part) owned by the Kenya Railways Staff Retirement Benefit Scheme.b.A declaration that the defendant is in fundamental breach of the plaintiff’s right by conduct of disruption of the Plaintiff’s business and contractual rights on the property or entitlement to continue occupation and/or possession of the property LR. No. 209/12401(part).c.Damages for loss of business and/or inconveniences inflicted on the plaintiff during the raid, clamping and grounding of the plaintiff’s motor vehicles at the parking yard and/or business premises.d.Costs of the suit.

Defendant’s Case 4. The Defendant opposes the suit through its Statement of Defence dated May 3, 2017. The thrust of their defence is that it is a stranger to the tenancy agreement between the Plaintiff and the Interested Party. It states that the Plaintiff’s business of operating Public Service Vehicles (“PSVs”) in Nairobi City County within a terminus where it picks and drop passengers falls within its jurisdiction and mandate. It contends that in the course of carrying on its business, the Plaintiff has not been paying its daily or seasonal parking tickets and as a result, the Defendant clamped its vehicles as required by the law and only released them upon payment.

5. The Defendant asserts that it is entitled to collect parking charges from all PSVs operating within the Nairobi City County and the fact that it does so on private land does not remove the Plaintiff’s obligation to acquire permits to operate its business. It states that it is entitled to charge parking fees under the authority of the Constitution, statutes and By-laws. The Defendant also avers that the court cannot grant the orders sought and the court lacks jurisdiction to handle the matter in a normal commercial suit.

Interested Party’s Case 6. In its Response to the Defendant’s Defence dated 22nd August 2017, the Interested Party states that as proprietor of the suit property, it is vested with all rights of ownership which cannot be taken away arbitrarily except in accordance with the Constitution. It states the Defendant encroached on the suit property contrary to the Constitution and the law and without any colour of right. In the circumstances, it states that the alleged County designated parking By-Laws cannot apply to private land.

7. The Plaintiff called its Managing Director, Julius Mokaya Ong’era (PW 1), as its witness while the Interested Party also called, Nicholas Kikuvi (DW 1), one of its Benefits Officers. The Defendant did not call any witnesses. At the close of the hearing, the parties filed written submissions.

8. From pleadings, testimony and submissions, it clear that the underlying dispute concerns the power and authority of the Defendant to levy parking fees over private property and the consequence thereof. I do not therefore propose to outline the testimony of each witness as they reiterated what has been stated in the pleadings. But before I consider the substantive issues, the Defendant has raised the issue of jurisdiction of the court to resolve this dispute.

Jurisdiction 9. Jurisdiction is everything and without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings and a court of law downs tools in respect of the matter before it the moment it takes the position that it lacks jurisdiction (see Owners of the Motor Vessel Lilian SS v Caltex Oil (Kenya) Ltd [1989] KLR 1, Samuel Kamau Macharia v Kenya Commercial Bank & 2 others SCK Appl. No. 2 of 2011 [2012] eKLR and R v Karisa Chengo SCK Pet. No.5 of 2015 [2017] eKLR).

10. The Plaintiff submits that this court has jurisdiction to determine this matter under Article 165(3) of the Constitution as it has unlimited original jurisdiction in criminal and civil matters. It adds that the complaint against the Defendant springs from a violation of Article 40 and 64 of the Constitution which entitles it to invoke Articles 22(1) and 23 (1) and (3) of the Constitution in order to protect private property from intrusion by the Defendant. The Plaintiff further submits that the Defendant’s actions are a violation of the Plaintiff’s and Interested Party’s rights to business and private property protected by Articles 40 and 64 of the Constitution.

11. The Defendant submits that this case should have, in the first instance, been brought through either a constitutional petition or an application for judicial review as evidenced by the fact that the Plaintiff submitted widely on the constitutional nature of the matter. It contends that from the pleadings, the Plaintiff is challenging the decision by the Defendant, which is a public body, from demanding parking fees from it hence the matter ought to have been filed in the Judicial Review Division as the main purpose of judicial review is to ensure that an individual is given fair treatment by the authority to which he is subject. The Defendant thus submits that since the Plaintiff bypassed those two courts and opted to institute as a civil suit, the court does not have jurisdiction.

12. The Interested Party supports the Plaintiff’s position. It submits that the dispute before the Court is whether the Defendant is entitled to levy parking fees on the Plaintiff for operating its business on private property belonging to the Interested Party. It adds that one of the issues framed by the Defendant in its submissions is whether the Plaintiff carries on the business of picking and dropping of passengers within the Interested Party's premises and whether the Plaintiff is required by law to pay for their daily or seasonal parking tickets. It submits that this is a dispute emanating from the ordinary course of trading hence this Court has jurisdiction to adjudicate on the matter.

13. I am satisfied that this court has jurisdiction as opposed to the Environment and Land Court (“the ELC”) established pursuant to Article 162(2)(b) of the Constitution which empowers Parliament to, “establish Courts with the status of the High Court to hear and determine disputes relating to the environment and the use and occupation of, and title to, land.” This is to be read with section 13 of the Environment and Land Court Act which underpins the jurisdiction of the ELC

14. I am convinced that this court as opposed to the ELC has jurisdiction to entertain this suit for a number of reasons. First, the Plaintiff seeks injunctive and declaratory orders against the Defendants from interfering with the Plaintiff’s business on the suit property, which orders this court is entitled to grant. Second, the dispute between the parties is largely one of parking fees as opposed to the use and occupation of, and to title of the suit property. Third, the Interested Party’s title to the suit property and the Plaintiff’s use of the same is not in dispute as all the Defendant seeks is parking fees from use of the suit property by the Plaintiff.

15. I also do not find any merit in the Defendant’s argument that the matter should have been filed in the Constitutional or Judicial Review Court. No such courts exist as the High Court is a court of unlimited original jurisdiction (see Peter Nganga Muiruri v Credit Bank Limited & 2 othersNRB CA Civil Appeal No.203 of 2006 [2008] eKLR). Further, the fact that a party has invoked constitutional provisions does not take away the jurisdiction of the court to adjudicate on a matter before it such as this.

16. Having found that the court has jurisdiction, I now turn to the merits of the suit which based on the parties’ submissions, the issue for resolution is whether the Plaintiff and/or Interested Party is required to pay parking fees in the circumstances and whether the Plaintiff is entitled to the reliefs sought.

Payment of parking fees 17. The Plaintiff’s case is that since the suit property is private property and the lease agreement was between it and the Interested Party, it was only obliged to pay parking fees to the Interested Party and not the Defendant. The Interested Party sided with the Plaintiff and stated it has been paying parking fees to the Defendant as evidenced by the permits issued to it by the Defendant and thus, the Defendant had no business charging its tenants, including the Plaintiff, any parking fees. On their part, the Defendant contends that it is permitted to charge parking fees for commercial businesses especially where the transport business is for commercial use.

18. It is not in dispute that the suit property is the Interested Party’s private property and has been leased to the Plaintiff. Whether the Defendant is entitled to charge the Plaintiff parking fees is a matter of law. It is trite law that a public authority like the Defendant, whether created by the Constitution or statute, does not have inherent power to do any acts unless such an act is authorised by law (see Republic v Kenya Revenue Authority ex parte Aberdare Freight Services Limited and Others [2004] 2 KLR 530). This principle is affirmed by the phrase, “the rule of law’’ which is part of the national values and principles in Article 10 of the Constitution. In other words, and in relation to this case, the Defendant must point to a specific law that allows it to charge parking fees either on the Interested Party’s business or on the Plaintiff’s vehicles. The Defendant was content to refer to general authority and mandate to regulate public parking for PSVs within its jurisdiction. It did not cite any statute or by-law in that regard. The fact of power and authority is insufficient; it must be accompanied by a legal instrument to pass the muster of the rule of law principle.

19. In this case and in relation to matter of regulation of traffic, Part IVA of the Traffic Act (Chapter 403 of the Laws of Kenya) provides generally for powers of County Governments to make laws regarding designation of parking places. In particular section 72B which provides, in part, as follows:72B(1)There shall be paid to the local authority in respect of a vehicle left in a designated parking place charged calculated in accordance with this section or in such other manner as the local authority may by by-laws prescribe….

20. Turning to the specific facts of this case, the Interested Party’s case is that it seeks to protect its rights over the suit property which it claims the Defendant has infringed by charging parking fees on an otherwise private property. Its witness, DW 1 recalled that the Interested Party pays annual parking fees to Nairobi County and receives a parking permit and that the Defendant has always been aware of the operations of its tenants including the Plaintiff. DW 1 stated that the Defendant’s action against the Plaintiff amounted to interference with the rights of its tenant. DW 1 told the court that the Defendant was aware of the Plaintiff’s operations since it renewed the parking permit annually and therefore the action of clamping the Plaintiff’s vehicles amounted to interference with the rights of the tenants on the suit property.

21. From the testimony of DW 1, as between the Defendant and Interested Party, the Interested Party admits that the Defendant is entitled to levy parking fees on the suit property and that is why it has been paying the seasonal or annual parking fees. I understand its case to be that the Defendant should look to it for parking fees rather than the Plaintiff. The Plaintiff and the Interested Party cited R v Nairobi City Inspectorate Department and Another ex-parte Pride Inn Hotels & Investments Limited NRB HC Misc. Application No. 650 of 2016 [2017] eKLR to support their case. In that case, it was not denied that the applicant’s suit property was private property hence not a designated parking space. It is also worth noting that the case was undefended as was the case of Republic v Nairobi City County exparte Archdiocese of Nairobi Kenya Registered Trustees NRB Misc. No. 528 of 2016 [2017] eKLR where the court reached the same conclusion.

22. In this case, the Plaintiff pleaded that the suit property fell within the ambit of the lease between the Plaintiff and the Interested Party hence it was not liable to pay parking fees to the Defendant on account of parking on the suit property. The Interested Party also admits that it pays parking fees to the Defendant, it follows that they are now estopped from claiming that the suit property is private property and thus an undesignated parking space exempt from parking fees.

Relief’s sought 23. In light of my findings above, the question is whether the Plaintiff is entitled to the reliefs sought. The Plaintiff sought a permanent injunction against the Defendant restraining it from raiding, encroaching upon, clamping, towing, seizing, impounding and in any way whatsoever interfering with the Plaintiff’s fleet of motor vehicles parked at and in the business of picking passengers from the suit property. A permanent injunction fully determines the rights of the parties and perpetually restrains the commission of an act by the defendant in order for the rights of the plaintiff to be protected (Kenya Power & Lighting Co. Limited v Sheriff Molana Habib MLND HCCA No. 24 of 2016 [2018] eKLR).

24. In my view, since the Interested Party has acknowledged its obligation to pay for the parking permits as may be required by the law, the grant of a permanent injunction may unduly interfere with the Defendant’s enforcement of the law in the event of breach thereof. On the other hand, the Defendant did not demonstrate to the court the authority to charge parking fees while the Plaintiff’s vehicles are on the suit property.

25. I take judicial notice of the fact that while this suit was still pending the Defendant passed the Nairobi City County Transport Act, 2020 which deals with the issues raised by the parties particularly Part VII thereof which deals with County Parking hence a permanent injunction would not be appropriate in the circumstances. In light of what I have stated, I will grant a limited injunction.

26. The Plaintiff also seeks a declaration that the Defendants were in breach of the Plaintiff’s right by conduct disruptive of the Plaintiff’s business and contractual rights on part of the suit property or entitlement to continue occupation and/or possession of the suit property. In addition, the Plaintiff seeks damages for loss of business and inconvenience inflicted in clamping of motor vehicles. Since, the Defendants did not justify clamping of the Plaintiff’s motor vehicles, it follows that the Plaintiff’s business was disrupted. However, the claim for ‘damages for loss of business’ falls within the realm of special damages and the same must be specifically pleaded and evidence led to prove it (Capital Fish Kenya Limited v The Kenya Power & Lighting Company Limited NRB CA Civil Appeal No. 189 of 2014 [2016] eKLR). The Plaintiff led no such evidence to prove this claim and I see no basis for the court to grant this prayer.

Conclusion and Disposition 27. In conclusion and for the reasons I have given, the Plaintiff’s suit partly succeeds and I issue the following dispositive orders:a.A permanent order of injunction be and is hereby issued restraining the Nairobi City County, its officers, agents, employees, functionaries or officials from raiding, encroaching upon, clamping, towing, seizing, impounding and in any way whatsoever interfering with the Plaintiff’s fleet of motor vehicles, vans and buses parked on or at and in the business of picking passengers from the parking lot on land parcel LR. No. 209/12401(part) owned by the Kenya Railways Staff Retirement Benefit Scheme as long as the requisite parking fees is duly paid by either the Plaintiff and/or the Interested Party in accordance with the law.b.The Plaintiff and the Interested Party shall have half the costs of the suit.

28. Before I conclude this judgment, I wish to apologise to the parties for the delay. It has been a result of the work load due to other official assignments.

DATED AND DELIVERED AT NAIROBI THIS 14th DAY OF JULY 2022. D. S. MAJANJAJUDGECourt Assistant: Mr. M. Onyango.Mr Mose instructed by Mose Nyambega and Company Advocates for the Plaintiff.Ms Katana instructed by Kithi and Company Advocates for the Defendants.Mr Saenyi instructed by Milimo Muthomi and Company Advocates for the Interested Party.