https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10172

Mutiso & another (Suing as the Officials of) Makueni Matatu Owners Association) v County Government of Makueni & 2 others (Constitutional Petition E003 of 2025) [2026] KEHC 10172 (KLR) (13 July 2026) (Ruling) Neutral citation: [2026] KEHC 10172 (KLR) Republic of Kenya In the High Court at Makueni Constitutional Petition E003 of 2025 TM Matheka, J July 13, 2026 IN THE MATTER OF THE CONSTITUTION OF THE REPUBLIC OF KENYA AND N THE MATTER OF THE ENFORCEMENT OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 22, 23 & 258 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF BREACH AND THREATENED BREACH OF ARTICLES 10, 19 (2), 20 (1), (2) & (3) & (4); 21(1), 22 (1), (2), 23(1) & (3) a, b, c, d & e,27(1), 28, 29(1), (2), (3)a, b, (4)a,b, 30, 35 (1)(B), 40 (3), 46(A), (C) & (D), 47 (1), 48, 50(1), 245, 246, 258 & 176 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUALS) PRACTICE & PROCEDURE RULES 2013, LEGAL NOTICE NO. 117 OF 2013 AND IN THE MATTER OF RIGHT TO PROPERTY AND IN THE MATTER OF THE KENYA NATIONAL TRANSPORT AND ROAD SAFETY ACT, NO. 33 OF 2012 AND IN THE MATTER OF THE TRAFFIC ACT CAP 403 AND IN THE MATTER OF COUNTY GOVERNMENT ACT NO 17 OF 2012 AND IN THE MATTER OF SECTIONS 4, 5, 9, 10, 11, 12, 13, 14, 15 & 84 OF THE CONSUMER PROTECTION ACT NO. 14 OF 2012 Between Jackson Mutie Mutiso 1st Petitioner Austine Mutuku Nzeki 2nd Petitioner Suing as the Officials of) Makueni Matatu Owners Association and The County Government of Makueni 1st Respondent The Inspector General of Police 2nd Respondent National Transport & Safety Authority 3rd Respondent Ruling Introduction 1.The petition dated 14/04/2025 seeks the following prayers;a.A declaration that the Respondents are in violation of Petitioner member parties public service vehicles owners’ rights envisaged under Article 46(1)(d)1 of the Constitution by allowing unlicensed private vehicles including most commonly vehicles known as Probox and therefore entitled to protection of their economic rights guaranteed in the Constitution.146. Consumer rights(1) Consumers have the right—(d) to compensation for loss or injury arising from defects in goods or servicesb.A declaration that the 2nd and 3rd Respondent’s failure to ensure compliance with the terms of section 26 of NTSA Act2 and section 96 of Traffic Act3, by ensuring that no unlicensed vehicle is allowed as public service within Makueni County since the Petitioner member parties are duly licensed, amounted to breach of Articles 27 and 46 of the Constitution of Kenya by the said 2nd & 3rd Respondents accordingly.226. Licensing of motor vehicles396. Application for public service vehicle licencec.A declaration that only the licensed public service vehicles under the provisions of section 26 of NTSA Act and Section 96 of Traffic Act shall be allowed to operate and to have designated picking and dropping zones for members of the Public within all towns, Markets shopping centres within Makueni County.d.An order of Certiorari to quash any directive by the 1st Respondent to allow unlicensed private vehicles and most commonly vehicle known as Probox to operate as PSVS and to have designated picking and dropping zones of members of the public established contrary to the law.e.An order do issue directing the 2nd Respondent to specifically enforce compliance of terms of section 26 of NTSA Act and ensure that no operations of illegally and unlicensed and non-public service vehicles PSV’S including Probox, ‘Maruti’ and private cars shall be engaged in business of carrying members of the public within designated PSV Matatu Terminals and/or any other area within the following towns and markets within Makueni County including Emali Town, Kathonzweni Town, Kitise Market, Kalawa Town, Matiliku Town, Kalamba Market, Mbumbuni Town, Mbooni/Kikima Town, Mavindini Market, Mukuyuni Market, Kyase Market, Kibwezi Town, Sultan Hamud Town, Kola Market, Kambu Town, Mtito Andei Town, Ukia Market Town and Makindu Town and all other Shopping Centres within Makueni County and any other part of Makueni County. 2.The Petition was accompanied by an Application for conservatory orders, dated 14/04/2025 and filed under certificate of urgency which culminated in the issuance of a conservatory order by way of injunction, on 19/05/2025, in terms of prayer (e) of the Petition. 3.The 1st Respondent reacted to the Petition and Application by filing a Preliminary Objection (P.O), dated 30/05/2025, and grounded as follows;a.That the power to register and license motor vehicles is bestowed with the 3rd Respondent, National Transport and Safety Authority as provided under Section 4(2) (a) of the National Transport Authority Act4 and not the mandate of the 1st Respondent, Makueni County Government.44. Functions of the Authority2(a) register and license motor vehicles;b.That the Petitioner has joined the 1st Respondent wrongly in this suit.c.That the Petition and the Application as against the 1st Respondent contravene the law on licensing which has never been declared unconstitutional and neither has the petitioners sought such orders. 4.The P.O was canvassed through written submissions. Submissions by the 1st Respondent 5.Reliance was placed on Mukisa Biscuit Manufacturing Ltd -vs- West End Distributors (1969) E.A 696 & Peter Gichuki King'ara -vs- IEBC & 2 Others, Nyeri Civil Appeal No. 31 of 2013, for the submission that a P.O may only be raised on a pure point of law. 6.It was submitted that the Point of law in this case is that the mandate of registering and licensing of motor vehicles in Kenya is vested with the National Transport and Safety Authority (NTSA) under section 4(2) (a) of the NTSA Act and not with the 1st Respondent whose role is ensuring that the PSVS comply with the provisions of the Law effectively. Reliance was placed on Republic -vs- Director, National Transport & Safety Authority [2021] KEHC 12721 (KLR) where the court stated;“…Accordingly, the order of mandamus is hereby made against the respondent compelling him to register the Applicant’s motor vehicle…” 7.Further reliance was placed on Republic -vs- National Environment Management Authority & Another ex-Parte Philip Kisia & City Council of Nairobi (2013) where the court held;“I have considered the arguments on this issue and I agree with the applicants that lead agencies (government ministries; departments; parastatals and state corporations; and local authorities) which are per law mandated to control or manage the environment or natural resources should cooperate with NEMA in the preservation and protection of the environment. NEMA is, however, given the mandate to “exercise general supervision and coordination over all matters relating to the environment and to be the principal instrument of Government in the implementation of all policies relating to the environment’’- see section 9 of EMCA. By virtue of section 9 (2) (l) of EMCA, NEMA shall ‘monitor and assess activities, including activities being carried out by the relevant lead agencies, in order to ensure that the environment is not degraded by such activities, environmental management objectives are adhered to and adequate early warning on impending environmental emergencies is given.The EMCA is therefore clear that the buck stops with NEMA a regards environment matters. NEMA assists and guides lead agencies in the preservation and protection of the environment but when a lead agency fails to comply with the directives given by NEMA then NEMA has no option but to engage the powers granted to it by EMCA.” 8.It was submitted that NEMA is a government parastatal just like NTSA and both are exercising their statutory mandate within their respective fields which mandate cannot be taken away from it by any other party. 9.It was submitted that the 1st Respondent has been joined in this suit wrongly as it does not have the authority to license or enforce any license conditions on matatu PSV’s or other motor vehicles flouting traffic rules within its jurisdiction. Reference was made to Order 1 Rule 10 (2) of the Civil Procedure Rules for the submission that the court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out. 10.Reliance was placed on Civicon Limited -vs- Kivumatt Limited & 2 Others (2015) eKLR where the Court of Appeal observed as follows:“Under Order 1 of the Civil Procedure Rules, the trial court has wide discretionary powers to make necessary amendments as to the parties to a suit by adding, substituting or striking them out and to make all such changes in respect of parties as may be necessary to enable an effectual adjudication to be made concerning all matters in dispute between them. The court has a separate, independent duty from the parties themselves to ensure that all necessary and proper parties, and no others, are before it so that it may effectually and completely determine and adjudicate upon all matters in dispute. For this reason, at any stage of the proceedings, the court may on such terms as it thinks just and either on its own motion or on application, order for the joinder of a party where the party is a person who ought to have been joined as a party or; whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon. the party is any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed which in the court’s opinion it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.” 11.It was contended that the Petition and Application at hand can be dealt with effectually and completely by this Honourable Court without the involvement of the 1st Respondent as the issues raised involve the 3rd Respondent. 12.It was submitted that the law of licensing of motor vehicles which is the National Transport and Safety Authority Act, 2012 has never been declared unconstitutional by any Court of Law and thus the Petition and the Application by the Petitioner’s is an abuse of the Court process. Submissions by the Petitioners 13.Relying on Mukisa Biscuit Manufacturing Ltd (supra), it was submitted that the P.O does not meet the threshold requirement to warrant consideration because it doesn’t outline the provisions of law alleged to be offended by Petitioners and because facts have to be ascertained. 14.It was acknowledged that it is indeed the mandate of the 3rd Respondent to licence all PSVs in Kenya but contended that the 1st Respondent has failed to pay attention to the provisions of Makueni County Transport Policy 2022 whereby the County has established a regulatory framework on the operations of all vehicles within Makueni County in collaboration with the 3rd Respondent. 15.As to whether the 1st Respondent is properly enjoined as a party in this Petition, reference was made to section 45 of the Makueni County Transport Bill, 2017 and paragraph 3.2.1 of the Makueni County Transport Policy 2022 for the submission that the 1st Respondent has duties and obligations regarding the operation of public service vehicles in collaboration with the 3rd Respondent and is therefore a proper party in these proceedings. Reliance was placed on Migori County Transport Sacco -vs- Migori County Government & Another [2017] KEHC 745 (KLR) where the court) stated;“…it is not in doubt that the Constitution devolved some aspects of the transport function to the County Governments. Of importance to this matter are the components of traffic, parking and public road transport. The County Government therefore remains under a legal obligation to come up with County legislations to provide for the said aspects of the transport function. Such legislations will definitely provide for, among other issues, the general management of the public service vehicles including the picking and dropping of passengers within the County and by that the issue of the Certificate would be easily and firmly dealt with. Needless to say, such pieces of legislations would go a long way into the regulation and provision of the transport function by the County Government. 16.It was submitted that in the Replying Affidavit sworn on 01/07/2025, the 1st Respondent has admitted that they collect levies from all the vehicles operating within Makueni County including vehicles under Petitioners’ member parties and as such, the 1st Respondent is involved in operations and regulation of transport system within Makueni County. Consequently, it was contended that any violation of the Petitioners’ constitutional rights by the 1st Respondent can be brought before this honorable court. 17.From the foregoing the issue for determination is whether the P.O is merited. Analysis and determination 18.The locus classicus in determination of a preliminary objection is Mukisa Biscuit Manufacturing Ltd -vs- West End Distributors (1969) E.A 696. A P.O must be a pure point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose off the suit. 19.The objection in this case is that the 1st Respondent is wrongly joined as a party as it has no power to register and license motor vehicles. 20.From a quick perusal of the pleadings, the major complain by the Petitioners is that unlicensed private vehicles are allowed to operate as PSVs within Makueni County hence, inter alia, giving them an unfair economic advantage as they do not pay for the requisite permits and licenses. 21.Section 26 (1) of the NTSA Act provides that;(1)A person shall not;(a)operate any class of vehicle including private vehicles as public service vehicles; or(b)operate a commercial service vehicle whose tare weight exceeds three thousand and forty-eight kilograms, unless the vehicle is licensed by the Authority. 22.Section 2 of the NTSA Act defines ‘Authority’ to mean; ‘the National Transport and Safety Authority established under section 3.’ It is therefore clear that the mandate to license vehicles is with the NTSA. However, Section 21 of the NTSA Act provides for the establishment of County Transport and Safety Committees (the committee) whose composition includes;“21 (2) (d) one person with knowledge and experience in matters relating to transport within the county nominated by the county governor; and21 (2) (e) (e)two persons nominated by the county governor on the recommendations of the Authority to represent such special interests within the county as the Authority shall determine.” 23.Section 22 of the NTSA Act provides that the functions of the committee are;(a)oversee the management and regulation of the road transport system by the Authority at the county level;(b)prepare and submit to the Authority such audit reports as the Authority may require on the safety, reliability and efficiency of the road transport system within the county;(c)advise the Authority on matters affecting the road transport system within the county; and(d)perform such other functions as may be assigned to it by the Authority. 24.Evidently therefore, County Governments are key stakeholders in the management and regulation of the road transport system within their respective Countiesand the fact that there are nominees of the Governor sitting in a committee which is supposed to advise the NTSA on matters affecting the road transport system within the county, means that the County Government is aproper party in the proceedings. 25.Additionally, paragraph 3.2.1 of the Makueni County Transport Policy 2022, states that the first objective of the policy is to strengthen the legal and regulatory framework on transport and one of the strategies of achieving that objective is; ‘collaboration with sector regulatory agencies and relevant stakeholders in the policy implementation e.g., NTSA, the traffic police, Public transport SACCOS, NCTC, Auto & Plant manufacturers.’ 26.Further, prayer (d) in the Petition is for an order of Certiorari to quash any directive by the 1st Respondent to allow unlicensed private vehicles and most commonly vehicle known as Probox to operate as PSVS and to have designated picking and dropping zones of members of the public established contrary to the law. 27.The 1st respondent must of necessity respond to that prayer. This court cannot make a finding of whether this prayer is merited or not at this juncture as it requires production and assessment of evidence. It is therefore my considered view that it will be premature to remove the 1st Respondent as a party as there may be orders directed at it. In any case, the law has provisions on award of costs as a way of compensating deserving parties in a case. 28.From the foregoing it is evident that while NTSA is the overall statutory body mandated to deal with national transport and safety, the 1st Respondent just like all county governments has statutory obligations win respect to transport management within the county. It would not be in order to remove the 1st respondent. 29.More importantly even if that was so, that would not resolve the whole petition. Hence the P.O does not meet the requisite threshold . 30.The P.O is over ruled and dismissed with costs to the Petitioners. RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT KABARNET HIGH COURT THIS 13TH JULY 2026MUMBUA T MATHEKAJUDGECA Chrispol/DanPetitioners’ AdvocateKitindio Musembi & Co. Advocatesbmkitindioadvocates@gmail.com1st Respondent’s AdvocateOffice of the County AttorneyCounty Government of MakueniCounty.attorney@gmail.com