Osiemo v Cabinet Secretary for Transport & 3 others (Petition 1 of 2023) [2026] KEHC 5662 (KLR) (Constitutional and Human Rights) (30 April 2026) (Judgment)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CONSTITUTIONAL AND HUMAN RIGHTS DIVISION PETITION NO. 1 OF 2023 BETWEEN GERALD ANYEGA OSIEMO………………………………PETITIONER VERSUS CABINET SECRETARY FOR TRANSPORT.………1ST RESPONDENT THE MODERN COAST BUS COMPANY……………2ND RESPONDENT THE GOVERNMENT PRINTER…………………… ..3RD RESPONDENT THE ATTORNEY GENERAL ……………………….. 4TH RESPONDENT J U D G M E N T Introduction 1. The Petition dated 20th January 2023 was amended on 24th January, 2023. Neither the initial Petition nor the amended Petition includes a supporting affidavit. 2. The core of the Petition is the Petitioner’s challenge against the decision of the 1st Respondent to cancel the operating PSV license PETITION NO. 1 OF 2023 -JUDGMENT Page 1 of 13 of the 2nd Respondent’s buses (Modern Coast Bus Company) following what the Petitioner states was a ‘minor accident in Kisii’ on 29/1/22 in which some passengers sustained minor injuries. 3. The Petitioner further alleges that the regulatory framework under the National Transport Safety Authority Act design is punitive and susceptible to corruption thereby enabling the 1st Respondent to ensure the 2nd Respondent remains subservient to 1st Respondent’s punitive or corrupt administrative decisions. 4. The Petitioner thus seeks the following remedies: a) That by failing and or refusing to respond to the notice to sue the 1st Respondent has pleaded guilty as charged. b) That therefore this honorable court to give judgement as prayed. c) That this court orders the 1st Respondent to compensate the 2nd Respondent, employees lost incomes, plus penalty at court's rate from• own pocket to teach impunity a lesson. d) That the 1st Respondent to be cited for e) f) gross violation of the constitution. Costs of this petition. Any further order or orders that this honorable court may deem just and appropriate. Petitioner’s Case 1. From the allegations made in the Petition, this Petition was prompted by the 1st Respondent’s decision to cancel the PSV licence of the 2nd Respondent buses (Modern Coast Bus Company) following a minor traffic incident in Kisii on PETITION NO. 1 OF 2023 -JUDGMENT Page 2 of 13 29/12/22 in which some passengers sustained some minor injuries. 2. According to the Petitioner, the decision that was made by the 1st Respondent did not take into account the fact that the 2nd Respondent has acquired massive loans to build a business empire of over 100 buses, which as at December 2019, the 2nd Respondent had a fleet of 85 buses, employing over 400 crew, 200 support staff, impacting over 3600 dependents. 3. Further, that canceling the operating licenses of all the 100 plus buses of the 2nd Respondent exposed the 2nd Respondent to lose daily incomes estimated at ksh.50 million and Kshs.5 billion at the close of the 3 months the ban would remain in force. 4. The Petitioner equally contends the over 4200 employees of the 2 n d Respondent and their dependents have to bear the consequences of the ban being unable to meet their daily subsistence needs such as food and related expenses such as school fees for their children hence deserve compensation. 5. The Petitioner contends that his researched findings and understanding of the 1st Respondent's inherently punitive and corrupt regulatory architecture that requires the 2 nd Respondent to eternally remain subservient to the punitive and arbitrary decisions of the 1st Respondent informed his institution of this Petition under Article 22 (1) of the Constitution. 6. The Petitioner contended that the 1st Respondent is inspects the buses of the 2nd Respondent for roadworthiness for the purpose of issuance of the operation licenses, tests PETITION NO. 1 OF 2023 -JUDGMENT Page 3 of 13 and issues trade certificates such as PSV badges for the drivers and conductors of the 2nd Respondent, and allocates routes, famously known as TLB to be operated on by the 2nd Respondent. 7. The Petitioner thus argued that due to the overarching influence and authority the 1st Respondent has over the 2nd Respondent, the 2nd Respondent's attempt to file such a suit would be construed as challenging the King and dire consequences would ensue such as being deliberately failed compliance tests or drivers and conductors being denied compulsory trade licenses such as badges. 8. The Petitioner contended that there was no legally binding agreement that existed between the 1st and 2nd Respondent w h i c h a l l o w s the 1st Respondent to ground all the fleet of buses owned by the 2nd Respondent in case one of the buses got involved in an accident. 1 st Respondent’s Case 9. The 1st Respondent, through its Permanent Secretary, Mohammed Daghar swore a replying affidavit on 3rd May, 2023 responding to the Petition. 10. He swore that from the outset, the petition is not supported by any cogent evidence. 11. He stated that without prejudice to the assertion that the Petition is not supported by evidence; that the National Transport and safety Authority (NTSA) is established vide the National Transport and Safety Authority Act No. 33 of 2012. The objective of forming the Authority was to harmonize the operations of the key road transport departments and help in PETITION NO. 1 OF 2023 -JUDGMENT Page 4 of 13 effectively managing the road transport subsector and minimizing loss of lives through road crashes. 12. Section 4 of the NTSA Act outlines the functions of the Authority to include inter alia; plan, manage and regulate the road transport system in accordance with the Act, ensure the provision of safe, reliable and efficient road transport services and implement policies relating to road transport and safety. Further, in performance of its functions, the NTSA is mandated to inter alia register and license motor vehicles, regulate public service vehicles, and develop and implement road safety strategies. 13. He explained that 28th December 2022, a bus belonging to the 2nd respondent was involved in an accident in Kisii County resulting to the death of one person and critically injuring others. This happened just months after another bus belonging to the 2nd respondent had been involved in an accident in July 2022, at River Nithi in Tharaka Nithi County killing thirty-six (36) people and critically injuring others. The July accident led to the suspension of the operations of the 2nd respondent for three (3) months after which the 2nd respondent was allowed to resume operations in November, 2022. 14. Following the December 28th accident which occurred barely a few months after the July accident and noting the concerns raised about the safety levels and the state of operations of the 2nd respondent, the 1st respondent through the NTSA in exercise of its statutory powers and functions as outlined under sections 4 and 34 of the Act, issued a directive to suspend the transport operating licence of the 2nd respondent with immediate effect.(Directive- annexure MD-1 ). PETITION NO. 1 OF 2023 -JUDGMENT Page 5 of 13 15. He further swore that following the suspension of the 2nd respondent's operating license, the 2nd respondent was summoned to the offices of the 1st respondent to give an account of the accident. (annexure & marked MD-2a & 2b - summon and minutes of the meeting) 16. He stated that as a result, further investigations were conducted by the 1st respondent in regard to the state of compliance with the NTSA Act, after which it was recommended that the suspension of the 2nd respondent's operating licence be lifted and this was done (per recommendation contained in annexure MD-3). 17. The 1st Respondent thus contended that all its actions were undertaken within the confines of the law as per the statutory powers and functions bestowed upon it and in compliance with the principles of the rule of law, equality before the law, accountability to the law, fairness in application of the law, and procedural and legal transparency. 18. The Respondent contended that its decisions taken pursuant to the authority of the law and constitutional framework and cannot be challenged on the basis of non-conformity with a "supposed agreement" between the 1st and the 2nd respondent or the consent or any written agreement from the petitioner, the 2nd respondent or any person on how to discharge its duties. 19. That 1st Respondent contended that the petitioner seeks to enforce private claims of the 2nd respondent veiled as public interest litigation in order to conceal the petitioner's motive for personal gain, private profit and other oblique considerations. 20. Furthermore, the 1st Respondent deposed that the entire petition offends the doctrine of ripeness, contravenes the principle of constitutional avoidance (by pleading claims of loss Page 6 of 13 PETITION NO. 1 OF 2023 -JUDGMENT of income which is a civil claim) and also, has not satisfied the threshold of pleading a constitutional petition, in that, it neither identifies the provision(s) of the Constitution alleged to have been violated nor demonstrates how the respondents have violated the petitioner's rights. 4 th Respondent’s Case 21. The 4th Respondent filed a Notice of Preliminary Objection dated 17/2/2023 raising the following grounds: I. That by dint of Section 38 of the National Transport and Safety Authority Act, 2012, the Petition is premature for determination by this Honourable Court. Where there is a law prescribed by either the Constitution or an Act of Parliament to govern to govern a procedure for redress of any particular grievance, that procedure should be strictly followed. 38. Appeals against decision of Authority 1) A Person who- a) being an applicant for the grant or variation of a licence, is aggrieved by the decision of the Authority on the application; b) having made an objection to any such application as aforesaid, being an objection which the Authority is bound to take into consideration, is aggrieved by the decision of the authority thereon; or c) being the licensee, is aggrieved by revocation or suspension thereof; PETITION NO. 1 OF 2023 -JUDGMENT Page 7 of 13 may within the time and the manner prescribed appeal to the Appeals Board established under section 39. Petitioner's Submissions 22. The Petitioner described himself as a self-made road safety expert who has done extensive research for over 35 years on the causes of motor/bodaboda carnage and the causes of the nightmarish traffic jams in our cities, CBD's, highways and the attendant remedies, among other road vices. 23. He submitted that the findings of his research and recommendations have been shared with the former and current transport ministers, police chiefs, parliament and the 1st Respondent. 24. He argued that the rules and regulations which the 1st Respondent had relied on in punishing the 2nd Respondent were formulated unconstitutionally and that is stating that that is where the real problem lies. He urged the Court to require the 1st Respondent to file the following instruments to confirm public participation was conducted prior to their formulation: i. ii. The copies of the media adverts inviting participants to the venues, county by county/province by province. The copies of the attendance registers of the participants, indicating the names and telephone contacts. PETITION NO. 1 OF 2023 -JUDGMENT Page 8 of 13 iii. The copies of the written memoranda of the participants, more so, by the road safety experts in the rooms, who would of course add value to the cause. iv. The copies of the minutes of the entire process. Your Lordship, it is the wealthy knowledge earned from the said research that put me at a pedestal to notice the injustice meted upon the 2nd Respondent by the 1st Respondent. 25. The Petitioner reiterated the facts upon which this Petition is founded, which is the accident on the 28th day of December 2022, in which one of the 29 buses owned by the 2nd Respondent, herein also referred to as the interested party, caused an accident killing one person and minorly injuring others leading to cancellation of the operating licenses of the 2nd Respondent's 28 buses, operating between Mombasa and Kampala for 90 days, without a legally binding agreement to that effect or a court order. 26. The Petitioner contended that the 1st Respondent actions violated Article 10 of the Constitution of Kenya by denying the 2nd Respondent the benefit of good governance, accountability and transparency hence is entitled to get an appropriate relief, including an order for compensation for the general loss suffered as a result of the 1st Respondent's impugned action. Respondents’ Submissions 27. The Respondent did not file any submissions as none could be located were in the physical file or in the CTS (Court online platform). ANALYSIS AND DETERMINATION PETITION NO. 1 OF 2023 -JUDGMENT Page 9 of 13 28. Having considered the pleadings and the submissions herein, the Court finds the following to be the issues for determination in this suit. 1) Whether as pleaded, the instant Petition meets the precision threshold in pleading a Constitutional Petition 2) Whether the Petition offends the doctrines of ripeness and Constitutional avoidance 3) Whether the Petitioner has established the violation of the Constitution by the Respondents 4) Whether the Petitioner is entitled to the reliefs sought. Whether as pleaded, the instant Petition meets the precision threshold of pleading a Constitutional Petition 29. A core requirement for a constitutional petition is that it must clearly identify the specific provisions of the Constitution the Petitioner alleges were violated and provide material facts regarding the manner the violations complained of occurred, hence the Petition must show there is factual nexus between the facts and the specific alleged violation. This requirement was articulated in the High Court cerebrated case of Anarita Karimi Njeru v R 1979 eKLR, where the Court held thus: “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 a reasonable degree of precision that of which he complains, the provisions said to be PETITION NO. 1 OF 2023 -JUDGMENT Page 10 of 13 infringed, and the manner in which they are alleged to be infringed.” 30. The principle was upheld by the Court of Appeal in Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others [2013] eKLR as follows: “…The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle. What Jessel, M.R said in 1876 in the case of Thorp v Holdsworth (1876) 3 Ch. D. 637 at 639 holds true today: “The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.” The petition before the High Court referred to Articles 1, 2, 3, 4, 10, 19,20 and 73 of the Constitution in its title. However, the petition provided little or no particulars as to the allegations and the manner of the alleged infringements…” 31. I have carefully studied the instant Petition. I appreciate the fact that it is drawn by a lay person but that would not be an excuse PETITION NO. 1 OF 2023 -JUDGMENT Page 11 of 13 for serious fundamental flaws and deficiencies. For a cause of action founded on breach of the Constitution, the Petition must be adequately and sufficiently pleaded to demonstrate the breach. 32. The Petitioner alleges that the formulation of 1st Respondent’s rules and regulations are in violation of the Constitution, however, he does not cite the exact provisions of these rules that are in contravention of any specific constitutional provision. In short, the Petition is pleaded broadly and imprecisely. The reliefs sought have not been spared either, they are equally vague. 33. Furthermore, while it is manifest that the Petition relies on a specific factual incident, that is, the accident that allegedly occurred on 28/12/2022 and, further the Petitioner pleads other factual details which include the 2nd Respondent’s financial losses running into Kshs. 50 million daily which would come to a total loss of up to 5 billion in the three month the ban was to remain in force including information that the 2nd Respondent employs 400 crew and 200 support staff who have over 3600 dependants that have now been exposed to untold suffering due to the ban; this factual assertion is not supported by any evidentially material as there is no affidavit to support or verifying affidavit that was filed together with the Petition. In the absence of an affidavit accompanying the Petition to verify the specific facts pleaded by the Petitioner, the minimum threshold for initiating a Petition have not been met. A Petition founded specific facts ought to have a verifying/supporting affidavit. The instant Petition cannot thus pass the test of a properly initiated constitutional petition. PETITION NO. 1 OF 2023 -JUDGMENT Page 12 of 13 Rule 11 (1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure, Rules 2013 contemplates such a Petition supported by an affidavit as part of the minimum conditions. It states: 11 (1) – The Petition filed under these rules may be supported by an affidavit. 34. Consequently, having failed the basic minimum threshold of a Constitutional Petition, this Petition must inescapably fail and this Court need not consider any other issue in the Petition. 35. I hereby dismiss the same. I make no orders as to costs. Dated, signed and delivered virtually at Nairobi this 30th day of April, 2026 ………………………………………… L N MUGAMBI JUDGE PETITION NO. 1 OF 2023 -JUDGMENT Page 13 of 13