[2021] KEHC 7969 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW APPLICATION NO. 128 OF 2020

IN THE MATTER OF AN APPLICATION FOR LEAVE FOR JUDICIAL REVIEW ORDERS OF PROHIBITION AND CERTIORARI

BETWEEN

REPUBLIC..........................................................................................APPLICANT

VERSUS

NAIROBI METROPOLITAN SERVICES................................1ST RESPONDENT

NAIROBI COUNTY GOVERNMENT.....................................2ND RESPONDENT

NATIONAL TRANSPORT & SAFETY

AUTHORITY............................................................................3RD RESPONDENT

INSPECTOR GENERAL OF POLICE KENYA.......................4TH RESPONDENT

METRO TRANS EAST AFRICA LIMITED..............................5TH RESPONDENT

EX PARTE APPLICANT:

ASSOCIATION OF BUS OPERATORS KENYA

JUDGMENT

The Application

1. The Association of Bus Operators Kenya, (hereinafter “the ex parte Applicant”) is a registered association of bus operators that operate in the Nairobi Central Business District. Theex parte Applicant has brought a Notice of Motion application dated 16th June 2020, in which it is seeking the following orders:

a) THAT this Court be and is hereby pleased to grant an order of Prohibition prohibiting the 1st and 2nd Respondents from alloting to the 5th Respondent pick-up and dropping slots at the Ambassador Hotel, General Post Office (GPO) and Kencom bus termini (westbound), GPO and ICEA stages (eastbound) or allowing the 5th Respondent to operate within the Nairobi Central Business District via City Hall Way, Mama Ngina Street and Kenyatta Avenue without obtaining the necessary Road Service Licenses;

b) THAT this Court be and is hereby pleased to grant an order of Prohibition prohibiting the 1st, 2nd, 3rd and 4th Respondents from allowing the 5th Respondent to operate within the Nairobi Central Business District or to pick and drop passengers at the General Post Office (GPO) and Kencom bus termini based on the Decree dated 11th October, 2017 in Milimani Misc. (JR) Application No. 13 of 2013; Republic v City Council of Nairobi Town Clerk & 3 Others Ex Parte Metro Trans Limited;

c) THAT this Court be and is hereby pleased to grant an order of Mandamus compelling the 1st, 2nd and 3rd Respondents to involve the ex parte Applicant herein as a bona fide stakeholder, in any decision making process pertaining to allocation of slots to any public transport operator at the General Post Office (GPO), Ambassador Hotel and Kencom bus termini; and

d) THAT costs of this application be provided for.

2. The Nairobi Metropolitan Services and Nairobi City County (the 1st and 2nd Respondents herein), are sued for the reasons that the Nairobi City By-laws provide that public service vehicles must operate on the routes and termini designated to them on their Road Service Licenses, while the issuance of the said Road Service Licenses is the preserve of the National Transport and Safety Authority, which is sued as the 3rd Respondent. The ex parte Applicant is in this regard aggrieved by the allotment of passenger picking up and dropping of slots to Metro Trans East Africa Limited, the 5th Respondent herein. The Inspector General of Police, who is sued as the 4th Respondent, is a Constitutional office in command of the National Police Service, and responsible for inter alia, enforcement of the law.

The ex parte Applicant’s Case

3. The instant application is supported by a statutory statement dated 16th June 2020, and a verifying affidavit and supporting affidavit sworn on 15th June 2020 and 29th June 2020 respectively by Edwins Massimba Mukabanah, the ex parte Applicant’s chairman. The ex parte Applicant states that its members are bona fide public service vehicle operators licensed to pick and drop passengers at General Post Office (GPO), ICEA and Ambassador Hotel (eastbound) and Kencom bus and GPO termini (westbound) and are also licensed to operate within the Nairobi Central Business District, that is, through Kenyatta Avenue, Moi Avenue, Nkrumah Avenue, City Hall Way and Mama Ngina Street with a bus holding ground at Central Bus Station.

4. The ex parte Applicant alleges that the 5th Respondent has been putting pressure on the 1st and 2nd Respondents herein to allot to it picking and dropping slots at the General Post Office (GPO), Ambassador and Kencom bus termini (westbound), and GPO and ICEA termini (eastbound), when they do not have the valid Road Service Licenses to operate from the said termini or the associated routes. That in this respect, the 5th Respondent, through its Advocates, wrote to the 2nd Respondent on 23rd April, 2020 seeking purported enforcement of a decree dated 11th October, 2017 given in HC Misc. (JR) Application No. 13 of 2013- Republic v City Council of Nairobi Town Clerk & 3 Others Ex Parte Metro Trans Limited, in a bid to coerce the 2nd Respondent into allocating them slots at the Ambassador Hotel, Kencom and General Post Office (GPO) termini.

5. It was further contended that as it is, the 5th Respondent’s operators do not hold the valid road service licenses to operate on the aforementioned routes within the Nairobi Central Business District, or to pick and drop passengers at the Ambassador, GPO and Kencom termini (westbound) or the GPO and ICEA termini (eastbound), and that the decree dated 11th October, 2017 could not be used as a substitute for a road service license and was spent as it was enforced in 2017. Furthermore, that the decree dated 11th October, 2017 did not authorize the 5th Respondent to operate within the whole of the Nairobi Central Business District or to pick and drop passengers at the Ambassador, Kencom and GPO bus termini (westbound) or GPO and ICEA (eastbound), neither did it license them to ply through Kenyatta Avenue, Moi Avenue, Nkrumah Avenue, City Hall Way and Mama Ngina Street as the case is now.

6. The ex parte Applicant therefore averred that the 5th Respondent has to follow due process and obtain the necessary valid road service licenses before they could seek to be allocated any slots at the Ambassador Hotel, GPO and Kencom termini, as it has no colour of right to use the said decree to try to obtain or get allotted any slots at the said termini. Further, that the 1st Respondent had confirmed in its letter dated 19th June, 2020 that the 5th Respondent indeed did not have a valid Road Service License and had not been authorized to operate at the General Post Office (GPO) and Kencom termini.

7. According to the ex parte Applicant, the 5th Respondent’s actions were highly prejudicial to the Applicant herein as the GPO and Kencom termini were already congested and could not accommodate additional public service vehicles. In addition, that currently, the GPO and Kencom bus termini each have a capacity to accommodate only 11 buses at any given time with members of the ex parte Applicant sharing the space as follows; Kenya Bus Service Management-3 slots, City Hopper-3 slots, Double M-3 slots and City Star Shuttle-2 slots. The ex parte Applicant asserted that any additional public service vehicles would result in obstruction due to the congestion of vehicles and interference of the zebra crossings at the said termini which would flout the city traffic rules.

8. Furthermore, that the 5th Respondent operates 14-seater mini-buses which are prohibited from operating within the Nairobi Central Business District, and may thereby increase the congestion of public service vehicles and disrupt the normal flow of business and management of traffic therein. The ex parte Applicant contended that as a bona fide stakeholder at the said termini, it is imperative it is involved or consulted in the decision-making process regarding the allotment of slots to any other public transport operator at the GPO, Ambassador Hotel and Kencom termini, as they stand to be adversely affected by any such decision made in their absence, since its members would be unfairly forced to cede their slots to accommodate the 5th Respondent’s vehicles without any participation on their part.

9. It was also averred that the 5th Respondent’s operators hold both the Inter-city and Commuter Road Service Licenses, which means they are authorized to ferry passengers as far as 50km outside the Nairobi Central Business District to Thika and Kikuyu towns and also along Tom Mboya Street within the Nairobi Central Business District. However, that the ex parte Applicant was denied Inter-City Road Service Licenses and only operate Commuter Road Service Licenses, which only authorizes them to ferry passengers within the NCBD through Kenyatta Avenue, Moi Avenue, Nkrumah Avenue, City Hall Way and Mama Ngina Street with a bus holding ground at Central Bus Station. It was contended that not only would it be manifestly unfair to the ex parte Applicants for the 1st, 2nd and 3rd Respondents to bow to the 5th Respondent’s pressure and allocate them additional picking and dropping slots at the Ambassador Hotel, GPO and Kencom bus termini but would also contravene the competition laws in Kenya. According to the ex parte Applicant, fair business practice for public transport operators requires that they to be issued with either the Inter-city road service license or the Commuter road service license, and that an operator should not be issued with both.

10. The ex parte Applicant annexed copies of its demand letter dated 2nd June 2020 and the 1st Respondent’s letter in response thereto dated 19th June 2020, the 5th Respondents list of road service licenses as published on the 3rd Respondent’s website,the 5th Respondent’s Advocates’ letter dated 23rd April, 2020, and of the decree dated 11th October 2017 and judgment dated 28th September 2017 issued inMilimani Misc. (JR) Application No. 13 of 2013- Republic v City Council of Nairobi Town Clerk & 3 Others Ex Parte Metro Trans Limited.

The Respondents’ Cases

11. The 1st, 2nd and 5th Respondents filed responses to the instant application. No responses were filed by the 3rd and 4th Respondents. The Responses filed are set out hereinbelow.

The 1st Respondent’s Case

12. The 1st Respondent filed a Replying Affidavit dated 21st July, 2020 sworn by Enosh Momanyi Onyango, the Deputy Director General and Accounting Officer of the Nairobi Metropolitan Services. He averred that on 25th February, 2020, the National Government and the Nairobi City County Government signed a Deed of Transfer of Functions pursuant to provisions of Article 187 of the Constitution of Kenya, 2010 as read together with Section 26 of the Intergovernmental Relations Act, (No. 2 of 2012). Which was published in Gazette Notice 1609 of 25th February 2020. Further, that pursuant to the signing of the said Deed of Transfer of Functions, four (4) functions namely, County Health Services, County Transport Services, County Planning and Development Services and County Public Works, Utilities and Ancillary Services were transferred to the National Government by the County Government of Nairobi.

13. In addition, that pursuant to Article 132 (4) (a) of the Constitution and Article 7. 1 of the said Deed of Transfer of Functions, the Nairobi Metropolitan Services, the 1st Respondent herein, was duly established on 18th March 2020 under the Executive Office of the President as the Institutional Framework mandated to perform the transferred functions on behalf of the National Government, upon recommendation by the Public Service Commission. The 1st Respondent contended that the subject matter of this case relates to the management of transport services on public roads within the Central Business District of Nairobi, and operation of Public Service Vehicles (PSVs) within the Nairobi Central Business District, and that following the transfer of functions, the mandate to perform the traffic management function in Nairobi City County is bestowed upon the 1st Respondent.

14. It was also averred that pursuant to section 72A of the Traffic Act, the City of Nairobi (Omnibus Station) By-Laws 2008 were duly promulgated, which regulate management of traffic services within Nairobi County, empower the local authority to establish routes to be used by PSVs and provide for licensing of PSVs, . Further, that the routes to be followed by PSVs in Nairobi County are set out under Regulation 23 of the By-Laws, have designated pick-up and drop-off parking areas. And are allocated and managed by the 1st and 2nd Respondents on the basis of Road Service Licences which are allocated to PSVs upon application. Therefore, that all PSVs are required to operate in accordance with and within the routes allocated as per the Road Service Licences.

15. The 1st Respondent asserted that it has not permitted or allowed the 5th Respondent or any other Party to operate outside the routes allocated as per the Road Service Licences, and that to the contrary, it has ensured that all PSVs operate within the established routes and adhere to the conditions set out in the Road Service Licence. The 1st Respondent also denied that the 5th Respondent or any other person has put pressure on it to allocate any pick up and/or dropping slots at the General Post Office, Ambassador and Kencom bus termini (westbound) and GPO and ICEA termini (eastbound) or at all. The 1st Respondent averred that it has continued to ensure that all licenced vehicles observe the relevant By-laws on management of traffic in Nairobi, as evidenced in its letter 19th June, 2020, which was annexed by the ex parte Applicant.

16. According to the 1st Respondent, it is always guided by the existing laws and regulations in the management of traffic matters and involves all stakeholders in decision-making, including the ex parte Applicant. In addition, that there is no evidence that the ex parte Applicant has ever been discriminated or overlooked and hence the order of mandamus is unnecessary. The 1st Respondent contended that the Road Service Licence only permits the ex parte Applicant to operate within the Central Business District as per the established routes and pick-up or drop-off points, and that the ex parte Applicant had instead illegally and unlawfully shared the spaces to their members without any authority or approval by the 1st Respondent, and were now attempting to use the court process to legalize their unlawful action. In addition, that the ex parte Applicants do not have an exclusive right or licence to use the subject termini within the Central Business District, and its right of use and to operate within the stated places is not automatic but subject to meeting the legal and regulatory requirements such as holding a valid Road Service Licence.

17. Lastly, the 1st Respondent averred that the orders sought by the ex parte Applicant have the effect of granting them exclusive rights of use without following the laid down procedures. Further, that there is no evidence that the 1st Respondent had violated or acted a manner that is contrary to the court order and decree dated 11th October, 2017 in Milimani HC Misc. (JR) Application No. 13 of 2013 - Republic vs City County of Nairobi Town Clerk and 3 others ex parte Metro Trans Limited, nor has theex parte Applicant demonstrated any wrong doing on the its part to warrant issuance of the orders of prohibition or mandamus, and its claim is speculative.

18. The 1st Respondent annexed a copy of Gazette Notice 1609 of 25th February, 2020.

The 2nd Respondent’s case

19. The 2nd Respondent filed a Replying Affidavit dated 23rd November, 2020 sworn by Eng. F.N. Karanja, the Deputy Director and Head of Section Roads and Public Works with the 1st Respondent, and previously the Chief Officer Road, Public Works and Transport of the 2nd Respondent. The deponent averred that he was duly authorized by the 2nd Respondent to swear the said affidavit on its behalf.

20. He contended that the law on grounds for granting Judicial Review Orders is now fairly settled and that Judicial Review is concerned with the legality of the decision-making process, and averred as to the said grounds and remedies, as well as on the elements of procedural fairness in the administrative law. He cited the decisions in Republic vs Public Procurement Administrative Review Board & 2 others Ex Parte- Sanitam Services (E. A) Limited (2013) eKLR, Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 30, Republic vs. Kenya National Examinations Council ex parte Gathenji & Others Civil Appeal No. 266 of 1996, Baker v. Canada (Minister of Citizenship & Immigration) 2 S.C.R. 817,and Kenya Revenue Authority vs. Menginya Salim Murgani Civil Appeal No. 108 of 2009 in this respect.

21. The deponent averred that he was aware that the 5th Respondent had irregularly allocated themselves pick-up and drop-off slots similar to that of the ex-parte Applicant herein, and that these actions were irrational thus making it appropriate for the ex-parte Applicant to question the manner in which the slots were allocated. Further, that the process required for the Public Service Vehicles operators to make an application for picking and dropping slots is via an online platform created by the 2nd Respondent. He added that once their application is successful, it is upon the Road Engineer to proceed and assess the said slots applied for and determine how many public service vehicles may operate under the same slots. It Eng. F.N. Karanja’s averment that the order sought of Prohibition be issued on the terms prayed by the ex parte Applicants, as the 5th Respondent should be prohibited from unprocedurally allocating themselves pick-up and drop-off slots similar to those of the ex parte Applicants with an approval from the Road Engineer.

22. According to Eng. F.N. Karanja that the 2nd Respondent have not yet created a taskforce or committee on road transport whereby the operators take part in the decision-making of what routes they should ply or not. Further, that the ex parte Applicants are concerned by how the road transport system works, and are thus demanding to be part of the committee or taskforce on public transport operations in Nairobi which will bring certainty in the public transport industry and avoid further conflict of interests. He further averred that maintaining procedural fairness protects the rights of individuals and enhances public confidence in the process, and that since the ex parte Applicants have raised problems as to the irregular allocation of pick-up and drop-off slots to the 5th Respondent, the best solution was to involve public transport operators into the decision-making of allocating pick-up and drop-off slots within Nairobi. In conclusion, the depondent stated that it is in the interest of fairness and justice that the ex-parte Applicant’s Application be allowed.

The 5th Respondent’s Case

23. The 5th Respondent filed grounds of opposition dated 23rd July, 2020 and a Replying Affidavit dated 18th August, 2020 sworn by Oscar Omurwa Rosana, one of its Directors, in response to the instant application. The 5th Respondent opposed the application as being an abuse of the court process at it is tantamount to challenging and seeking to set aside a subsisting order and decree of a court of concurrent jurisdiction issued in Republic vs City Council of Nairobi Town Clerk & 3 others ex-parte Metro Trans Limited (2017) e KLR in Milimani HC Misc (JR) Application No. 13 of 2013. Further, that the application is made mala fide for to incite of the 1st, 2nd, 3rd and 4th Respondents against the 5th Respondent, and that the orders sought therein are against the purpose of the Competition Act No. 12 of 2010 to inter alia promote and safeguard competition in the National economy, and are tantamount to predatory practice prohibited under the said Act. Lastly, that the substantial orders the ex-parte Applicant seeks are res judicata, and that the ex-parte Applicant has no locus standi to challenge the orders in Republic vs City Council of Nairobi Town Clerk & 3 others ex-parte Metro Trans Limited (2017) e KLR being Milimani HIC Misc (JR) Application No. 13 of 2013 as it was not privy to the proceedings in suit.

24. The grounds of opposition were supplemented by averments made by the 5th Respondent in its affidavit. The 5th Respondent contended therein that its company did apply to the 1st Respondent to be allowed to operate their public transport vehicles to and from Kenyatta Hospital to Kencom Bus station, and by a letter dated 24th July, 2020, the 1st Respondent allowed the 5th Respondent to operate the said route as they indicated they have no objection thereto. It was also averred that the 1st Respondent took over from the 2nd Respondent on matters to do with allocation of routes, laybys and termini to be played by public service vehicle within Nairobi. Therefore, that the ex parte Applicant by making the instant application is to trying to push the 1st Respondent for no justifiable reason at all, to deny the 5th Respondent an opportunity to compete with other public transport operators fairly.

25. It was further contended that it is clear in the judgment and decree of the Odunga . in Republic vs City Council of Nairobi Town Clerk & 3 others Ex-parte Metro Trans Limited (2017) eKLRbeing Milimani HC Misc (JR) Application No. 13 of 2013, the predecessor to the 1st Respondent whose functions they took over as far as managing Public Service Vehicles in Nairobi was concerned, were ordered not to interfere with the operations of the 5th Respondent’s vehicles so long as they have valid operating licences. Therefore, that so long as the 5th Respondent's public service vehicles have valid Road licenses for particular routes, they would freely and in a law-abiding manner ply the routes and use the stages and terminus. In addition, that this fact was made clear by the 1st Respondent letter dated 19th June 2020 when it wrote to theex parte Applicant’s advocates on record after they lodged a complaint, namely that allocation of slots to the 5th Respondent’s buses was vide this courts orders and as such they could not interfere with the said orders. Attached and marked “OS2” was a copy of the letter.

26. According to the 5th Respondent, it is equally a bona fide public service vehicle licensed operator, that is dully allowed by this court to ply routes and have the benefit to share with other-like licensed operators, all routes, termini and laybys that they have been licensed to operate. Further, that the ex parte Applicant has no mandate whatsoever to impugn the 5th Respondents’ licenses as that is the job of the 3rd Respondent, and their operations are checked by the 1st, 2nd and 4th Respondents. As such, that the ex parte Applicant should aim at fairly competing in the public transport industry. It was also averred that the allocation and refusal to allocate slots to be used by the public service vehicle is purely within the mandate and discretion of the 1st Respondent and not theex parte Applicant who are themselves beneficiaries of the said discretion, having been allotted the slots its members operate by the 1st Respondent. The 5th Respondent contended that the routes and laybys the ex parte Applicant wants their vehicles locked out of are not terminuses, and as such any operator is allowed to operate along the said routes as fair competitors.

27. Lastly, the 5th Respondent stated that it is equally a member of a licensed public service vehicles association being the Association of Matatu Operators (NCBD), and the ex parte Applicant cannot use the said association to seek orders against the Respondents. Therefore, that the instant application is not made in good faith, and is also an attempt to drive a competitor out of business, which action under the Competition Act is prohibited as cbeing “Predatory Practice”. In conclusion, the 5th Respondent deponed that the application is also an abuse of this Court’s process and an affront to justice as it is a disguised attempt by the Applicant to set aside or vary orders of a prior suit or appeal against them by a party that was not prejudgement to a party to the said suit.

28. The 5th Respondent attached copies of the 1st Respondent letters dated 19th June 2020 and 24th July 2020, and of its membership and registration certificates with the Association of Matatu Operators.

The Determination

29. The instant application was canvassed by way of written submissions. Oundo Muriuki & Company advocates filed two sets of submissions dated 20th August 2020 and 6th November 2020. The 1st and 4th Respondents submissions dated 5th October 2020 were filed by Munene E. Wanjohi, Senior State Counsel in the Attorney General’s Chambers. A.S. Kuloba & Wangila Advocates filed submissions dated 26th October 2020 for the 5th Respondent.

30. It is necessary at the outset and before the identification of the issues raised by the instant application and determination thereof, to restate the parameters of judicial review jurisdiction. It was held in the Ugandan case of Pastoli vs Kabale District Local Government Council & Others, (2008) 2 EA 300in this regard as follows:

“In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union v Minister for the Civil Service[1985] AC 2; and also Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala, miscellaneous application number 643 of 2005 (UR).

Illegality is when the decision making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality…..

Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re An Application by Bukoba Gymkhana Club[1963] EA 478 at page 479 paragraph “E”.

Procedural impropriety is when there is failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi v Secretary of State for the Home Department[1990] AC 876).”

31. Judicial review is also now entrenched as a constitutional principle pursuant to the provisions of Article 47 of the Constitution, which provides for the right to fair administrative action, and section 7 of the Fair Administrative Action Act in this regard provides that any person who is aggrieved by an administrative action or decision may apply for review of the said action or decision. In addition, it was noted by the Court of Appeal in Suchan Investment Limited vs. Ministry of National Heritage & Culture & 3 others, (2016) eKLRthatArticle 47of the Constitution as read with the grounds for review provided by section 7 of the Fair Administrative Action Act reveals an implicit shift of judicial review to include aspects of merit review of administrative action,even though the reviewing court has no mandate to substitute its own decision for that of the administrator.

32. Lastly,Article 165(6) of the Constitution also provides that this Court has supervisory jurisdiction over any person, body or authority that exercises a quasi-judicial function or a function that is likely to affect a person’s rights.

33. Comingto the present application, it is evident that the ex parte Applicant is aggrieved by the decision of the 1st, 2nd 3rd and 4th Respondents to allot the 5th Respondent pick-up and dropping slots in various bus termini in, and to allow the 5th Respondent to operate within the Nairobi Central Business District. This raises a preliminary issue as to whether the instant application is amenable to judicial review, and if found to be competently filed, this Court will proceed to examine the two substantive issues arising, which are whether the Respondents have acted illegally, and whether the ex parte Applicant merits the relief sought.

On the competence of the application

34. The ex parte Applicant in its submission dated 20th August, 2020 framed the issues for determination as follows:

(a) Whether the 5th Respondent is properly licensed to operate within the NCBD and/or to pick and drop passengers at the General Post Office (GPO), ICEA and Kencom bus termini;

(b) Whether the Court Order and Decree issued in Milimani Misc. (JR) Application No. 13 of 2013; Republic v City Council of Nairobi Town Clerk & 3 Others Ex Parte Metro Trans Limited gave the 5th Respondent authority to operate within the NCBD and/or to pick and drop passengers at the General Post Office (GPO), ICEA and Kencom bus termini; and

(c) Whether the 1st, 2nd and 3rd Respondents should involve the ex parte Applicant herein as a bona fide stakeholder, in any decision-making process pertaining to allocation of slots to any public transport operator at the General Post Office (GPO), ICEA, Ambassador Hotel and Kencom bus termini.

35. I have reproduced the said issues to illustrate that the ex parte Applicant’s grievance is on the merit and legality of the 5th Respondent operations within the Nairobi Central Business District, either arising from lack of a licence to do so, or the inapplicability decision in Milimani Misc. (JR) Application No. 13 of 2013 - Republic vs City Council of Nairobi Town Clerk & 3 Others Ex Parte Metro Trans Limited. In its submissions on the said issues, the ex parte Applicant urges that that the 5th Respondent has not filed any evidence in court to controvert the evidence produced by the ex parte Applicant or to show that they are properly licensed and authorized to operate within the Nairobi Central Business District and/or to pick and drop passengers at the GPO and Kencom bus termini.

36. Further, that the 5th Respondent needs to follow due process and apply for the requisite licenses from the 3rd Respondent, which is the licensing authority as mandated by Section 28(1) of the National Transport and Safety Authority Act, authorizing them to ply the said routes before they can request the 1st and 2nd Respondents for allotment of slots. Lastly, the ex parte Applicant submits that the decree issued in Milimani Misc. JR Application No. 13 of 2013 is not a license in itself or a substitute for road service licenses, and that contrary to the 5th Respondent's allegations, the application herein is not challenging the Court Order and Decree issued in Milimani Misc. (JR) Application No. 13 of 2013 but seeking to have the 5th Respondent comply with the directions therein and the Nairobi City Omnibus termini By-laws by obtaining the necessary licenses first before they can request for allotment of slots.

37. The 1st and 4th Respondents on their part submitted on the competence of the instant application, and urged the High Court’s jurisdiction in judicial review is circumscribed by the provisions of the Law Reform Act which confers to the court the jurisdiction to issue any of the three judicial review orders of Mandamus, Prohibition or Certiorari, and that section 8 of the Act provides that the High court shall not issue any of the orders in the exercise of its civil or criminal jurisdiction. Further, that a fairly well-settled criteria for issuance of the orders has been developed which include illegality, impropriety of procedure and irrationality, and is incumbent upon a party in a judicial review application who seeks the issuance of any of the orders to prove breach of any of the above criteria Reliance was in this regard placed on the decisions inRe Bivac International SA (Bureau Veritas), (2005) 2 EA 43 and Pastoli vs. Kabale District Local Government Council and Others, [2008] 2 EA 300 and Republic vs Public Procurement Administrative Review Board & Another Ex Parte Gibb Africa Ltd & Another [2012] eKLR .

38. According to the 1st and 4th Respondents, the issue as to whether the 5th Respondent is properly licensed to operate within the NCBD is not an issue for determination within the realms of judicial review. Counsel averred that it is trite law that judicial review deals with the decision-making process. He contended that the issue of the 5th Respondent being licensed or not is matter that requires calling of evidence. More so, that if the ex parte Applicant is aggrieved, it should file a complaint in the Transport Licensing Appeals Board. The 1st and 4th Respondents submissions on Milimani Misc (JR) Application No. 13 of 2013 - Republic vs City Council of Nairobi Town Clerk & 3 Others Ex parte Metro Trans Limited were that they were not a party in the matter, and that the order was granted by a court of equal and concurrent jurisdiction, and thus they ought to move the court that issued the order for its enforcement.

39. The 5th Respondent on its part submitted hat the ex parte Applicant has no locus standi to challenge the ruling and orders of this Court in Republic vs City Council of Nairobi Town Clerk & 3 others, ex parte Metro Trans Limited (2017) e KLR as it was not a party to the said suit and should have first sought to be enjoined in the said suit and then challenge the said orders that they seek quashed. That in any case, the challenge is being brought late in the day, and the application seeks frustrate the 5th Respondent who has been lawfully allowed to operate so long as they adhere to the laid down rules, instead of competing fairly. Lastly, that the application is an appeal or review of an already determined matter.

40. I have considered the arguments made by the parties and it is evident that the gist of the ex parte Applicant’s grievance is the legality or otherwise of the 5th Respondent’s operations and actions as opposed to any illegality on the part of the 1st, 2nd, 3rd and 4th Respondents. This is not a grievance that is amenable to judicial review, as it is basically a dispute between two private entities, and the public element therein is hard to fathom. This is especially so because the ex parte Applicant did not bring evidence of any decision made by the Respondents allotting the disputed picking and dropping slots in the stated bus termini and routes to the 5th Respondent. On the contrary, the only decision annexed by the ex parte Applicant is the 1st Respondent’s response to their complaint in the letter dated 19th June 2020 which stated as follows

“The allocation of slots to Metro Trans Ltd at the General Post Office (GPO) and Kencom bus terminus was made by the Nairobi City County Government (NCCG) pursuant to an application by the said Company on 23 April2020 vide their Advocates, S. Kuloba & Wangila Advocates.

Following the transfer of functions, the mandate to perform County Transport Services vested in the Nairobi Metropolitan Services (NMS) with effect from 18 March 2020. Consequently, it was irregular for NCCG to purport to perform a function that was already transferred.

NMS reviewed the matter and observed that the order in question prohibited the NCCG from interfering with operations of Metro Trans Limited on the routes and picking/dropping points as per the Road Service License issued by the National Transport and Safety Authority (NTSA). The company did not have a Road Service Licence that permits it to operate in GPO and Kencom bus terminus and hence, it was immediately stopped from operating in the said points without a valid licence. In view of the above, NMS considers the complaint settled.”

41. The 1st Respondent in the said letter is categorical that the 5th Respondent was stopped from operating on the contested bus termini, and is therefore not evidence of a decision on the part of the Respondents to allot the slots to the 5th Respondents as alleged. Therefore, if the 5th Respondent was acting contrary to the said decision, the ex parte Applicant needed to pursue the appropriate criminal and civil remedies which are not within the purview of this Court’s jurisdiction.

42. In addition, the jurisdiction to hear a grievance of this nature against the Respondents in the first instance is granted to another entity under section 38 of the National Transport and Safety Act as follows:

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 the revocation or suspension thereof, may within the time and in the manner prescribed appeal to the Appeals Board established under section 39.

43. The said Appeals Board established under section 39 is the Transport Licensing Appeals Board. An available adequate alternative remedy is a material consideration in the competence of an application for judicial review, for the reasons that judicial review is a remedy of last resort, and Courts require other avenues of redress to be first utilised in relation to the actions or decisions of a public body. In addition, the exhaustion of alternative remedies is now both a constitutional and legal imperative under Article 159 (2)(c) of the Constitution and section 9(2) and (3) of the Fair Administrative Action Act, and as exemplified by emerging jurisprudence on the subject. Article 159(2)(c) of the Constitution in this regard obliges this Court to observe the principle of alternative dispute resolution.

44. Specifically, with respect to the exercise of the judicial review jurisdiction of this Court, sections 9(2) (3) and (4) of the Fair Administrative Action Act state as follows:

“(2) The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.

(3) The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).

(4) Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.”

45. The Court of Appeal first embodied the doctrine of exhaustion in Speaker of National Assembly vs Karume(1992) KLR 21,and further clarified the doctrine under the current constitutional dispensation in Geoffrey Muthinja Kabiru & 2 Others vs Samuel Munga Henry & 1756 Others (2015) eKLRas follows:

“It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews….. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”

46. In the present case, it is also notable that the ex parte Applicant relies on the road service licenses issued by the 3rd Respondent to illustrate its case against the 5th Respondent, and its demand letter dated 2nd June 2020 was also addressed to the 3rd Respondent, which is the Authority that is given powers under section 4 of the National Transport and Safety Act to regulate public service vehicles. Likewise, the question of whether the 5th Respondent is licenced to operate at the disputed bus termini and routes as required by the decision in Milimani Misc (JR) Application No. 13 of 2013 - Republic vs City Council of Nairobi Town Clerk & 3 Others Ex parte Metro Trans Limitedis one that can only be answered by the 3rd Respondent.

47. 1f for any reason the ex parte Applicant was dissatisfied with any action or inaction on the part of the 1st, 2nd and 3rd Respondents as regards regulation and operations of the 5th Respondent, which is a public service transport provider, its first port of call should have been the Transport Licensing Appeals Board before approaching this Court. The ex parte Applicant’s application is accordingly incompetently filed for the foregoing reasons, and the outstanding issues are accordingly moot.

The Orders

48. Arising from the foregoing findings, this Court orders as follows:

i. The ex parte Applicant’s Notice of Motion application dated 16th June 2020 is incompetently filed before this Court and is hereby struck out.

ii. There shall be no order as to the costs of the Notice of Motion application dated 16th June2020.

49. Orders accordingly.

DATED AND SIGNED AT NAIROBI THIS 17TH DAY OF MARCH 2021

P. NYAMWEYA

JUDGE

FURTHER ORDERS ON THE MODE OF DELIVERY OF THIS JUDGMENT

Pursuant to the Practice Directions for the Protection of Judges, Judicial Officers, Judiciary Staff, Other Court Users and the General Public from Risks Associated with the Global Corona Virus Pandemic dated 17th March 2020 and published 17th April 2020 in Kenya Gazette Notice No. 3137 by the Honourable Chief Justice, this judgment was delivered electronically by transmission to the email addresses ofthe ex parte Applicant’s and Respondents’ Advocates on record.

P. NYAMWEYA

JUDGE