[2022] KEHC 13023 (KLR)

Republic v Nairobi Metropolitan Services (NMS) & 5 others; Metro Trans EA Ltd (Interested Party); Kaka Travellers Cooperative Savings and Credit Society Limited (Exparte) (Judicial Review E131 of 2022) [2022] KEHC 13023 (KLR) (Judicial Review) (19 September 2022) (Ruling)

Neutral citation: [2022] KEHC 13023 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review E131 of 2022

AK Ndung'u, J

September 19, 2022

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF MANDAMUS & PROHIBITION

IN THE MATTER OF THE CITY COUNTY OF NAIROBI (MATATU TERMINI) BY LAWS 2007, PART III CLAUSE 12(2) & 12(3)

IN THE MATTER OF SECTION 53(1) OF THE TRAFFIC ACT, CAP 403 OF THE LAWS OF KENYA

IN THE MATTER OF ARTICLE 27(4), 46(1)(c) AND (d), OF THE CONSTITUTION OF KENYA

IN THE MATTER OF A JUDICIAL REVIEW APPLICATION

Between

Republic

Applicant

and

Nairobi Metropolitan Services (NMS)

1st Respondent

Director of Roads, Public Works & Transport, NMS

2nd Respondent

Director of Enforcement, NMS

3rd Respondent

Inspector General of Police

4th Respondent

DTO Central Police Station

5th Respondent

Attorney General

6th Respondent

and

Metro Trans EA Ltd

Interested Party

and

Kaka Travellers Cooperative Savings and Credit Society Limited

Exparte

Ruling

1. The applicant approached this court vide a Chamber Summons application dated August 29, 2022 seeking the following orders;1. That this application be certified as urgent and service thereof on the respondents and the interested party be dispensed with in the first instance, on account of the demonstrated urgency.2. That leave be granted to the ex parte applicant to seek by way of Judicial Review, that an order of an order of mandamus do issue, compelling the 3rd and 4th respondents to jointly and/or severally forthwith remove and cause to be forthwith removed, or towed off the interested party's (Metro Trans EA Ltd) bus and/or buses blocking and obstructing the ex parte applicants and its members' PSV vehicles operating as such PSVs along the Githunguri - Nairobi CBD route, access to, from, and at the applicant's designated Tom Mboya slated passenger-picking and dropping off bay, as a designated PSV bus stop, bus layby and terminus along the applicant's stated licensed route, or any other place within the applicant's licensed Road Service Licensed route.3. That leave be granted to the ex parte applicant to seek by way of Judicial Review, that an order of prohibition do issue, prohibiting the respondents and the interested party (Metro Trans EA Ltd, or any other party or entity acting at their behest and/ or agency), from unlawfully blocking the ex parte applicant's and its members' PSV vehicles operating as such PSV along the Githunguri Nairobi CBD route, access to, from (and at) the applicant's designated Tom Mboya slated passenger-picking and dropping off bay, or any other place within their licensed Road Service Licensed (RSL) route.4. That owing to the monumental losses and the severe suffering by the 166 members of the ex applicant on account of the grounding of their PSV buses in consequence of the inaccessibility of their passenger pick-up and drop off point along Tom Mboya street unlawfully taken up by the interested party herein as complained of, these proceedings be fast tracked and the time within which to lodge the substantive Notice of Motion upon the grant of leave herein be truncated to the minimum time prescribed.5. That the costs of these proceedings be to the applicant in any event.

2. By a ruling dated August 31, 2022 this court granted leave to the applicant to institute judicial review proceedings in terms of prayers 2 and 3 of the Chamber Summons.

3. Pursuant to the leave granted, the applicant filed a substantive motion dated August 31, 2022 for orders;1. That by way of Judicial Review, an order of mandamus do issue, compelling the 3rd and 4th respondents to jointly and/or severally forthwith remove and cause to be forthwith removed, or towed off the interested party's (Metro Trans EA Ltd) bus and/or buses blocking and obstructing the ex parte applicant's and its members' PSV vehicles operating as such PSVs along the Githunguri -Nairobi CBD route, access to, from, and at the applicant's designated Tom Mboya slated passenger-picking and dropping off bay, as a designated PSV bus stop, bus lay-by and terminus along the applicant's stated licensed route, or any other place within the applicant's licensed Road Service Licensed route.2. That by way of Judicial Review, an order of prohibition do issue, prohibiting the respondents and the interested party (Metro Trans EA Ltd, or any other party or entity acting at their behest and/or agency), from unlawfully blocking the ex parte applicant's and its members' PSV vehicles operating as such PSV along the Githunguri - Nairobi CBD route, access to, from (and at) the applicant's designated Tom Mboya slated passenger-picking and dropping off bay, or any other place within their licensed Road Service Licensed (RSL) route.3. That the costs of these proceedings be to the applicant in any event.

4. On September 14, 2022, the applicant’s counsel on record made an oral application for the grant of a mandatory order by way of temporary relief requiring that the interested party be ordered to remove their vehicles from the subject location and prohibiting the continued use of the slot. It was urged that the applicant is suffering losses to the tune of shillings three million (Sh 3000,000) a day due to the infringement by the interested party.

5. I have considered the oral application. What is sought is a mandatory order at an interlocutory stage. The principles for the grant of such relief are well settled. The law is clearly set out in Halsburys Laws of England (4th edition) paragraph 948 which states that:“A mandatory injunction can be granted on an interlocutory application as well as at the hearing but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and which the court thinks ought to be decided at once, or if the act done is simple and summary one which can be remedied, or if the defendant attempted to steal a match on the plaintiff…a mandatory injunction will be granted on an interlocutory application.’’

6. My considered view is that in the circumstances of this case, there is need to have the issues before court ventilated before any such order or relief can be given. The case before me has not reached the threshold of a clear case which ought to be decided at once and the act complained of is not a simple and summary one which can be remedied. To the contrary, issues the orders at this stage is likely to invite disorder and further convolute the issues herein.

7. The interests of justice commend that the prayer for interim relief be denied and the matter herein be expedited.

8. I dismiss the oral application for temporary relief.

DATED SIGNED AND DELIVERED THIS 19TH DAY OF SEPTEMBER 2022…………………AK NDUNGUJUDGE