[2022] KEHC 645 (KLR)

Kilonzo v Makueni County Sand Conservation and Utilisation Authority (Constitutional Petition 01 of 2020) [2022] KEHC 645 (KLR) (9 June 2022) (Judgment)

Neutral citation: [2022] KEHC 645 (KLR)

Republic of Kenya

In the High Court at Makueni

Constitutional Petition 01 of 2020

GMA Dulu, J

June 9, 2022

IN THE MATTER OF ARTICLE S 1, 2, 3, 10, 21, 23, 28, 39, 40, 47, 49, 174, 258, 259 AND SCHEDULE 4 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF: MAKUENI COUNTY SAND CONSERVATION AND UTILIZATION ACT 2014 AND IN THE MATTER OF: VIOLATION OF ARTICLES 39, 40, 47, 49 AND 50 OF THE CONSTITUTION OF KENYA

Between

Julius Maweu Kilonzo

Petitioner

and

Makueni County Sand Conservation and Utilisation Authority

Respondent

Judgment

1. This is a petition dated February 24, 2020 filed by the petitioner Julius Maweu Kilonzo, seeking several orders some of which have been spent as follows –1. (Spent)2. (Spent)3. (Spent)4. A declaration that the respondent is an unconstitutional body performing unconstitutional functions in contravention of Schedule 4 of the Constitution.5. A declaration that the respondent’s actions to arrest and detain the petitioner’s motor vehicle registration No KBK 010N was illegal, unlawful and unconstitutional.6. A declaration that the respondent’s actions violated the petitioner’s constitutional rights in respect to Articles earlier mentioned and more specific Articles 39,40,47, 49 and 50. 7.An order compelling the respondent to compensate the petitioner for the losses incurred and profits he should have made had the lorry not been arrested.8. Damages and costs of the suit.

2. The petition was filed with a verifying affidavit, and a supporting affidavit, sworn by the petitioner. In the supporting affidavit which has no swearing date, it was stated that the petitioner’s lorry was arrested on 5/2/2020 at 4pm by officers of the respondent and detained at Mukaa Police Post, and that though the advocate for the petitioner wrote to the OCS Kilome Police Station and County Police Commander demanding release of the lorry, the lorry was not released and instead moved to unknown place.

3. It was also deponed that the same lorry was engaged in harvesting and selling sand at a profit of Kshs.5,000/= per lorry load, and also fetching firewood and charcoal for sale at Kshs.5000/= per day, and also delivering food at night to Konza Techno City at a profit of Kshs.2,000/= per day.

4. The petition was opposed through a replying affidavit sworn by Halinishi Yusuf, the Managing Director of Makueni Sand Conservation and Utilization Authority on March 30, 2020. It was deponed therein that the respondent was an institution created through County Government of Makueni legislation, that harvesting of sand was subject to licencing, that the petitioner had no licence thus his lorry was impounded as his driver ran away, that Article 42 of the Constitution protected the environment.

5. In response thereto, the petitioner filed a supplementary affidavit which he swore on March 9, 2020, in which he deposed that the Makueni County Sand Conservation and Utilization Act 2015 did not constitute the respondent as a court with powers to arrest and convict, that the petitioner was licenced to harvest and transport sand, that the lorry was arrested for failure to pay cess fees, and that it was established at Miaiani Police Post that cess had been paid, and that so far no charges had been preferred against the driver or owner of the lorry.

6. It is of note that on 3/4/2020 before hearing, this court made the following orders –1. The lorry will be released on condition that the same is not disposed of in any manner before the petition is heard and determined.2. The applicant must avail it in court whenever required before determination of the petition.3. The petition be fast tracked.

7. The petition was canvassed through filing of written submissions. In this regard, I have perused and considered the submissions filed by D.M Mutinda advocates for the petitioner, and Nyamu and Nyamu advocates for the respondent.

8. I will start by stating that this being a petition claiming violations of constitutional rights, it was imperative for the petitioner to plead with clarity the constitutional provisions that were violated and the manner in which they were so violated. Many decided court cases have dealt with this principle, but I will only cite the case of Anarita Karimi Njeru –vs- Republic – Misc Criminal Application No 4 of 1979 wherein the court stated as follows –“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with reasonable degree of precision that which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed”

9. In the present matter, the petitioner has listed several Articles of the Constitution, that is Article 10, 40, 39, 47 and 49 and 50 of the Constitution under the heading – “grounds upon which the petition is premised, violations of the constitution and the law”. His complains relate to impounding of his motor vehicle, violation of his right to freedom of movement, lack of expedition in administrative action, and his not being brought to court within a reasonable time.

10. Other than the above general complaints, petitioner does not however, in the petition or in submissions, state with precision, when and how his constitutional rights were violated to enable the respondents respond to the same, and to enable the court make a decision on the various complaints. In addition, though the petitioner complains against the actions of the respondent, he acknowledges that the respondent’s officials were acting under the Makueni County Sand Conservation and Utilization Act 2015, so in my view, if there was any violation of rights, such would be statutory violation and not constitutional violations.

11. In my view therefore, the petitioner has not satisfied the threshold for establishing constitutional violations, and consequently, if he has any claim against the respondent it will be of civil liability nature not constitutional violations as not all violations of a person’s rights qualify to be constitutional violations.

12. On whether the petitioner is entitled to grant of the prayers sought, in my view he has not satisfied the legal requirements of the declarations sought. He has not also satisfied the requirements for grant of monetary compensation either for suffering or loss of business, as such compensation can only be assessed by courts through tendering of evidence, which has to be tested through cross examination, and not merely by making unsubstantiated claims in a constitutional petition. The petition will thus be dismissed.

13. With regard to costs, I will award costs of the petition to the respondent.

14. Consequently, and for the above reasons, the petition herein is unmerited and hereby dismissed. I award the costs of the proceedings to the respondent, payable by the petitioner.

DATED SIGNED & DELIVERED, THIS 9TH DAY OF JUNE 2022, IN OPEN COURT AT MAKUENI.GEORGE DULUJUDGE