[2022] KEHC 13632 (KLR)

Malonza v The Nairobi City County & 2 others (Petition E027 of 2021) [2022] KEHC 13632 (KLR) (Constitutional and Human Rights) (11 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13632 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition E027 of 2021

M Thande & HI Ong'udi, JJ

October 11, 2022

Between

Macloud Mukiti Malonza

Petitioner

and

The Nairobi City County

1st Respondent

The Secretary, Nairobi City County

2nd Respondent

The Director, Nairobi City County Inspectorate

3rd Respondent

Judgment

1. The petition dated January 14, 2021 was filed under articles 22(1) of the Constitution for the alleged contravention of the rights and freedoms under articles 10, 35, 40, 43 and 232 of the Constitutionseeking the following orders:a.An injunction restraining the respondents from further detaining the petitioner's motor vehicle registration number KCC 328C and an order that the respondents do release the petitioner's motor vehicle within seven days of this court's order or any shorter period as the court may deem fit.b.A declaration that the respondents' act of detaining the petitioner's motor vehicle registration number KCC 328C from December 17, 2020 to such a date as it shall be released was and is unlawful, unreasonable and a breach of the petitioner's constitutional rights.c.An order that the respondents do pay the petitioner Ksh 10,000. 00 per day or such amount as the court shall find due from December 17, 2020 until such time as the respondents shall release the vehicle to the petitioner as damages arising directly from infringement and violation of his constitutional rights.d.An order directing the respondents to supply the petitioner with registration number, model, make and ownership details of the owner of the motor vehicle which is alleged to have been used to tow his motor vehicle registration number KCC 328S on December 17, 2020 and for which the petitioner's vehicle has been detained.e.The respondents do bear the costs of this petition.f.Any other order or relief this court may deem just to grant.

The petitioners’ case 2. The petitioner in his supporting affidavit dated January 16, 2021 deponed that he is the owner of motor vehicle registration number KCC 328C which is a commercial public vehicle operating under Kenya Bus Service Sacco. It is managed by the Sacco and he had obtained the necessary license and permits for the vehicle’s operation and paid the parking fees as required by the respondents.

3. He deposed that on December 17, 2020 at around 4. 00 pm or thereabouts he received a call from his manager informing him that the vehicle had been impounded by the 1st respondent’s officers on allegations that the driver had caused an obstruction by loading passengers in an undesignated area. This was denied by the driver, who informed him that while operating the vehicle along the junction of Haile Selassie Avenue and Uhuru Highway, the 1st respondent’s officers who were not wearing uniform stopped him and asked to inspect the vehicle. They at first sought to call a tow truck to tow the vehicle but instead drove the vehicle to their yard along Race Course road. The driver accompanied them. The driver informed him that he refused to bribe the respondents’ officers to avoid being charged with any traffic offences.

4. It was deposed that the respondents’ officers proceeded to demand Kshs 10,000. 00 as impounding charges. The petitioner upon being informed of this instructed his manager to pay the impounding charges so as to enable the vehicle continue with business.

5. It is averred that when the manager and driver went to the yard to take the vehicle, they were asked to pay a further Ksh 7500 as towing charges before the vehicle could be released. In compliance he asked the manager to issue him with the payment code to make the payment of the Ksh 7500. He stated that the respondents’ officers refused to issue the code and invoice for the towing charge.

6. The petitioner averred that the respondents were supposed to inform him the basis upon which they sought to charge him the Ksh 7500 as no vehicle towed his vehicle which was driven by the respondents’ officer, to the yard on the material day. He demanded to have details of the alleged towing vehicle.

7. He deposed that the continued detention of his vehicle was an infringement of his constitutional rights, to property under article 40(3) of the Constitution. Second, was the breach of his right against deprivation of his only source of livelihood in essence violating his economic rights under article 43 of the Constitution. He deponed that if the prayers sought are not granted he will suffer irreparable loses and damages.

8. He filed a further supplementary affidavit dated March 16, 2021 sworn by Christopher Njogu, the driver of his vehicle registration number KCC 328C. He gave a similar account of what the petitioner had stated in his affidavit save to add that the petitioners vehicle had been released following the court orders dated February 18, 2021.

The respondents’ case 9. The respondents in response to the petition filed their following summarized grounds of opposition dated February 8, 2021”i.The petition and application are frivolous, vexatious and lack merit and ought to be dismissed.ii.Upon receipt of the letter of complaint dated 23rd of December 2020 the respondents’ director of investigations was assigned the matter. A preliminary report (COCI) was done showing that the petitioner is supposed to pay the prescribed fees and charges following the impounding of his motor vehicle registration no KCC 328C.iii.The petitioner and his driver have refused to visit the respondents’ offices for purposes of recording statements on their violations of the 1st respondent’s bylaws. The investigation is therefore not completed because of their conduct.iv.They accuse the petitioner of using the court process to avoid answering to the acts of violating the county by-laws.v.That it would be against public policy and fair administration of justice if the orders sought are granted as it would amount to unequal treatment, of parties who violate the county by-laws. Further that the petitioner has not met the threshold for grant of the orders sought.

10. In addition, the respondents filed their replying affidavit dated February 10, 2021 sworn by Regina Irimu Kabugu, the 1st respondent’s assistant director operations. The said affidavit reiterated the contents of the grounds of opposition.

The petitioner’s submissions 11. The petitioner through the firm of BM Musyoki & Company Advocates filed written submissions dated February 4, 2022. Counsel submitted with reference to article 40 of the Constitution that the petitioner is entitled to own property without any interference whatsoever. As such he argued that the respondent deprived the petitioner of his property without any lawful cause yet he had all the requisite documentation as proof of him being the owner of the vehicle.

12. On the economic and social rights under article 43 of the Constitution, it was submitted that this right entitles the petitioner to protection of his opportunity to earn a living through his business as a means of protection of his right to be free from hunger. It was therefore argued that the continued retention of the petitioner’s vehicle was a violation of this right. Moreover, it was noted that the effect of detaining the vehicle in this case was to effectively ensure that the petitioner could not utilize it to earn a living which amounted to an infringement of his economic rights under article 43 of the Constitution. It is submitted that as a result of all this the petitioner incurred a loss Ksh 10,000 per day.

13. In support of this point reliance was placed on Micro & Small Enterprises Association of Kenya Mombasa Branch (Acting in the interest of its Members to the exclusion of those who may have sought reliefs in their own right) v Mombasa County Government & 43 others[2014] eKLR. The court held that it is the economic and social rights under article 43 of the Constitutionthat would appear to entitle the petitioners to protection of their opportunity to earn their living through hawking business as a means of protection of the right to be free from hunger.

14. Counsel while submitting on article 35 of the Constitutionstated that despite the petitioner’s effort to know what the Ksh7500 charged upon his vehicle was for, the respondents declined to offer an explanation on the same. He argued that the respondents as public bodies are bound by article 35(1) (a) to disclose information sought and not in any way place conditions for accessing information which is a violation of the petitioner’s right.

15. In support reliance was placed on the case of Nairobi Law Monthly v Kenya electricity Generating Company & 2 others [2013] eKLR where it was held that State organs or public entities have a constitutional obligation to provide information to citizens as of right under the provisions of article 35(l)(a) of the Constitution. The respondents were therefore duty bound to release such information.

16. In respect of articles 10 and 232 of the Constitution, Counsel submitted that the respondents’ officers in this matter lacked the values and principles that befit a public officer under these articles. This was because the officers’ act of demanding inducement was deplorable as it is one of the major corruption scandals in this country. Their actions therefore violated the cited provisions.

17. He further submitted that the respondents had not observed the procurement procedures in identifying who and which vehicles would be used for towing any offending vehicles within the Nairobi city county. Further that their conduct lacked transparency and accountability as they did not issue receipts or acknowledgement of the demanded Kshs 7500. To this end counsel submitted that the respondents' acts did not meet the threshold of constitutionalism and dictates of chapter six of the Constitution.

18. In view of this, counsel submitted that having established that the respondents violated the petitioner’s constitutional rights, the court ought to award damages for the violation. In support reliance was placed on Reuben Njuguna Gachuka & another vs Inspector General Police Service & others(2019) eKLR where the court appreciated the fact that damages for violation of constitutional rights do not have to be compensatory but to vindicate the rights violated and to prevent or deter any future infringement.

The respondents’ submissions 19. The respondents through the firm of Koceyo & Company Advocates only filed written submissions dated January 19, 2022 in respect of the application. They also relied on them in respect to the petition.

20. Counsel submitted, that the petitioner had not produced evidence to show compliance with the city by-laws requirement that he should pay the requisite fees and charges. He further contended that the petitioner would not suffer irreparable loss as the amount in question was quantifiable and so can be compensated by way of damages. He added that the balance of convenience tilted in the preservation, maintenance and enforcement of law and order as against the personal interest of the petitioner. Moreover that in equity, the petitioner would be said to have come to the court with unclean hands and so not deserving of the orders sought. Bearing this in mind counsel submitted that the petition was an abuse of the court process.

Analysis and determination 21. I have carefully considered the pleadings, submissions, and the law and I find the issues falling for determination to be:ii.Whether the petitioner’s rights under articles 10, 35, 40, 43 and 232 of the Constitutionwere violated; andiii.Whether the petitioner is entitled to the reliefs sought.

Issue no. (i) Whether the petitioner’s rights under articles 10, 35, 40, 43 and 232 of the Constitution were violated 22. The facts leading up to the instant petition are that on December 17, 2020 the petitioner’s motor vehicle registration no KCC 328C was impounded by the respondents’ officers. The petitioner consequently paid the impounding charges of Ksh 10000 to the 1st respondent. His contention is that the subsequent detention of the said vehicle was unjustified as the respondents failed to inform him why he was required to pay the Ksh 7500 as towing charges or breakdown fees.

23. Further it was claimed that the petitioner’s effort to pay the Ksh 7500 through the respondent’s payment system failed since the respondents sought to receive a bribe from the petitioner instead but he refused to yield to their demands. In light of this the petitioner contended that his constitutional rights under articles 10, 35, 40, 43 and 232 were violated. The respondents on the other hand asserted that they had lawfully carried out their duty. It was their argument that the petitioner who had no cause of action had come to court with unclean hands. They claimed that the petitioner was using the court process to avoid paying the requisite prescribed fees and charges upon the impounding of his vehicle. Further, that the petitioner and his driver had declined to assist in the investigations regarding violation of the city by-laws by the driver.

24. For the petitioner to prove his case against the respondents his petition as a starting point must satisfy the constitutional threshold set for constitutional petitions. This means that a party that alleges violation of his or her rights must plead with reasonable precision the manner in which the rights have been violated. This was appreciated in Husus Mugiri v Music Copy Right Society of Kenya & another [2018] eKLR where the court noted that:“18. In order for a petition to qualify to be a constitutional petition that seeks to enforce or protect fundamental rights and freedoms under the bill of rights, it must meet the test set in Anarita Karimi Njeru v Republic [1979] eKLR. That is, the applicant must specify which specific provisions of the Constitution that declare the rights, the specific rights and freedoms that have been or are threatened to be infringed or violated and the manner in which the respondent has infringed the subject rights. This position has been reiterated time and again.”

25. Likewise, the court in the case of Meme v Republic [2004] eKLR, restated the position in the Anarita Karimi case (supra) stating as follows:-“Where a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important that he should set out with reasonable degree of precision that of which he complains, the provisions said to have been infringed and the manner in which they are alleged to have been infringed and that the applicant’s instant application had not fully complied with the basic test of constitutional references, as it was founded on generalized complaints without any focus on fact, law or Constitution, hence it had nothing to do with the constitutional rights of the appellants”.

26. Upon considering the above my humble view is that for a constitutional petition to be sustainable, a party must besides citing the provisions of the constitution allegedly violated demonstrate precisely how the rights were violated. Mere citing of constitutional provisions is not enough.

27. A look at the facts of this case reveals a number of things. The circumstances under which the said motor vehicle was impounded are in dispute. I say so because both parties present different accounts. The petitioner’s account as stated by the driver was that the respondents’ officer flagged him to stop while he was driving and sought to inspect the car. Thereafter the respondents’ officer drove the vehicle with the petitioner’s driver inside to their car yard.

28. On the other hand, the respondents through the investigation and Information analysis department report dated 1st February 2021 made known that the said vehicle was found obstructing the newly constructed road off Haile Selassie avenue as it was parked on a pavement. It is claimed that the vehicle was then towed by a breakdown vehicle, registration No. KPT 642 driven by Mr. Alois Mutainya to the car yard.

29. The petitioner did not in any way controvert the allegation regarding the circumstances of the seizure of the vehicle and neither did the respondents’ avail the officers and breakdown driver’s evidence or account by way of an affidavit or calling them as witnesses. Furthermore, the respondents’ Investigation department stated that the matter was still under investigation only that the exercise had been frustrated due to the lack of compliance by the petitioner and his driver.

30. In my opinion, the circumstances of this case showcase allegations and counter allegations from both sides making it difficult to ascertain the truth as there are no witness statements or evidence to corroborate the averments made by the parties herein. What is certain and undisputed however is that the petitioner’s vehicle was impounded due to a known traffic offence as provided for under the Traffic Act cap 403 and the city by-laws. The petitioner did not go to the respondents offices to find out what had happened. To date him, the driver and manager have not recorded any statement.

31. Accordingly, following a perusal of the petitioner’s pleadings I observe that the affidavit in support contains no documentary evidence that the respondents carried out their duty contrary to what is required in law. The petitioner did not show his attempt to acquire the sought information on why he was paying the towing fees as per the procedure set out in the Access to information Act. I say so because the petitioner did not attach any correspondence seeking this information.

32. I further note that the petitioner made allegations of attempted bribery by the respondents in the circumstances but failed to support or show this conduct by way of evidence. In my view production of letters addressed to the respondents raising these complaints or concerns could have sufficed in the circumstances of this case. The only correspondence that came close was the demand letter dated December 23, 2020 which protested the detention of the vehicle seeking its release but made no mention of the corrupt practice. It follows that had such evidence been adduced it would have given this court an opportunity to interrogate it and assist it reach a determination on the questions of violation.

33. The court in Edward Akong'o Oyugi & 2 others v Attorney General [2019] eKLR as follows:“72. Section 107 (1) of the Evidence Act[36]provides that "whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.Sub-section (2) provides that "when a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person." Additionally, I have severally stated that all cases are decided on the legal burden of proof being discharged (or not).“No Judge likes to decide cases on the burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course to take.”

73. Whether one likes it or not, the legal burden of proof is consciously or unconsciously the acid test applied when coming to a decision in any particular case. This fact was succinctly put forth by Rajah JA in Britestone Pte Ltd v Smith & Associates Far East Ltd[38] :-“The court’s decision in every case will depend on whether the party concerned has satisfied the particular burden and standard of proof imposed on him”

74. It is a fundamental principle of law that a litigant bears the burden (or onus) of proof in respect of the propositions he asserts to prove his claim. Court decisions cannot be made in a factual vacuum. To attempt to do so would trivialize the Constitution and inevitably result in improper use of judicial authority and discretion. It will be a recipe for ill-considered opinions. The presentation of clear evidence in support of such prejudice is a prerequisite to a favourable determination on the issue under consideration. Court decisions cannot be based upon the unsupported hypotheses.”

34. Having carefully analysed the petition and the material before this court I find that the petitioner did not demonstrate clearly how the rights he complains about were violated by the respondents. I have clearly set out above the short falls in what he presented before the court. Furthermore, he did not rebut the assertion that they have not set foot at the respondents’ offices over this matter, in order to know what exactly transpired. In short it’s his word against that of the respondents. Without any other evidence being adduced there is nothing to tilt the finding in his favour.

35. My finding is that the petitioner’s rights as envisaged under articles 10, 35, 40, 43 & 232 of the Constitutionhave not been shown to have been violated.

36. The upshot is that the petition dated January 14, 2021 lacks merit and is dismissed with costs.Orders accordingly.

DATED AND SIGNED THIS 11THDAY OF OCTOBER, 2022 AT MILIMANI, NAIROBI.H. I. ONG’UDIJUDGE OF THE HIGH COURTDelivered and signed this 13thday of October, 2022 at Milimani, Nairobi.Mugure ThandeJudge of the High Court