[2011] KEHC 4279 (KLR)

[2011] KEHC 4279 (KLR)

The court found that the Municipal Council of Mombasa, in awarding the parking services contract to Summit Cove Lines Company Limited, failed to comply with the mandatory procedures of the Public Procurement and Disposal Act, including open tendering or properly documented alternative procurement. This lack of transparency and competition resulted in discrimination against the applicant's members, violating their rights to equality and fair administrative action under Articles 27 and 47 of the Constitution. The court rejected the respondents' arguments that ministerial approval and gazettement could cure the illegality, holding that statutory and constitutional requirements cannot be...

Citation
[2011] KEHC 4279 (KLR)
Parties
Applicant: Kenya Transport Association; Respondent: Municipal Council of Mombasa; Respondent: Summit Cove Lines Company Limited
Court
High Court
Court Station
High Court at Mombasa
Jurisdiction
Kenya
Judgment Date
20 May 2011
Case Number
Constitutional Petition 6 of 2011
Procedural Posture
Constitutional Petition / Judgment
Outcome
Petition allowed. The public-private partnership declared unlawful, null and void. Prohibitory orders issued against respondents. Costs to petitioner.
Legal Topics
Public Procurement, Equality and Non Discrimination, Fair Administrative Action, Public Private Partnerships, Local Government Powers, Access to Information
Source Language
English
Constitutional Law Commercial and Corporate Administrative Law Public Procurement Equality and Non Discrimination Fair Administrative Action Public Private Partnerships Local Government Powers +1 more

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Parties

Kenya Transport Association

Applicant

Municipal Council of Mombasa

Respondent

Summit Cove Lines Company Limited

Respondent

Procedural Posture

Constitutional Petition / Judgment

Legal Issues

  1. 1 Whether the public-private partnership between the Municipal Council of Mombasa and Summit Cove Lines Company Limited for parking services was procured in accordance with the law and the Constitution.
  2. 2 Whether the process violated the petitioners' rights to equality, non-discrimination, and fair administrative action under Articles 27 and 47 of the Constitution.
  3. 3 Whether the petitioner association had locus standi to bring the constitutional petition on behalf of its members.

Ratio Decidendi

The court found that the Municipal Council of Mombasa, in awarding the parking services contract to Summit Cove Lines Company Limited, failed to comply with the mandatory procedures of the Public Procurement and Disposal Act, including open tendering or properly documented alternative procurement. This lack of transparency and competition resulted in discrimination against the applicant's members, violating their rights to equality and fair administrative action under Articles 27 and 47 of the Constitution. The court rejected the respondents' arguments that ministerial approval and gazettement could cure the illegality, holding that statutory and constitutional requirements cannot be...

Court Disposition

Petition allowed. The public-private partnership declared unlawful, null and void. Prohibitory orders issued against respondents. Costs to petitioner.

Orders

  • The public-private partnership between the 1st and 2nd respondents regulating motor vehicle parking, collection of parking fees/charges, and clamping of motor vehicles within Mombasa County is declared unlawful, null and void.
  • The respondents, their servants, employees, agents, or otherwise howsoever, are prohibited from collecting parking charges/fees on the basis of the existing public-private partnership recorded in Gazette Notices Nos. 4728 of 11th July, 2003; 5727 and 5728 of 15th August, 2003; 1594 of 12th February, 2010; and 11859...