[2008] KEHC 2758 (KLR)
The court found that the applicants/respondents failed to disclose material facts, specifically the existence and publication of the City of Nairobi (Omnibus Stations) Amendment Bylaws 2008, which were central to the dispute. The court held that publication of the bylaws was sufficient notice to all, and the...
Source-derived case information.
- Citation
- [2008] KEHC 2758 (KLR)
- Parties
- Applicant: Mike Musa Munga; Applicant: James Nyarangi; Applicant: Maureen Ngumi; Applicant: Hilda Indakwa; Applicant: Andrew Muthee; Applicant: Peter Kariuki; Applicant: Samwel Mwaura; Applicant: Andrew Bwoge; Respondent: Transport Licensing Board; Respondent: The Commissioner of Police; Respondent: The Honourable Attorney General; Respondent: Permanent Secretary, Ministry of Local Government; Applicant: City Council of Nairobi; Respondent: Kenya Bus Service Ltd; Respondent: City Hopper Ltd; Respondent: Double Auto Tech Ltd; Respondent: Permanent Secretary, Ministry of Transport; Respondent: Registrar of Motor Vehicle
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 130 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Vacate or Set Aside Ex Parte Orders
- Outcome
- Ex parte stay order vacated; leave for judicial review remains; costs awarded to applicant, respondents, and 3rd interested party.
- Judges
- JW Nyamu
- Legal Topics
- Judicial Review, Non Disclosure of Material Facts, Public Interest, Municipal Bylaws, Stay of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mike Musa Munga
Applicant
James Nyarangi
Applicant
Maureen Ngumi
Applicant
Hilda Indakwa
Applicant
Andrew Muthee
Applicant
Peter Kariuki
Applicant
Samwel Mwaura
Applicant
Andrew Bwoge
Applicant
Transport Licensing Board
Respondent
The Commissioner of Police
Respondent
The Honourable Attorney General
Respondent
Permanent Secretary, Ministry of Local Government
Respondent
City Council of Nairobi
Applicant
Kenya Bus Service Ltd
Respondent
City Hopper Ltd
Respondent
Double Auto Tech Ltd
Respondent
Permanent Secretary, Ministry of Transport
Respondent
Registrar of Motor Vehicle
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Vacate or Set Aside Ex Parte Orders
Legal Issues
- 1 Whether the ex parte orders granted on 27th March 2008 should be vacated or set aside due to non-disclosure of material facts.
- 2 Whether the applicants/respondents were aware or ought to have been aware of the City of Nairobi (Omnibus Stations) Amendment Bylaws 2008.
- 3 Whether there was discrimination in the implementation of the Bylaws.
Ratio Decidendi
The court found that the applicants/respondents failed to disclose material facts, specifically the existence and publication of the City of Nairobi (Omnibus Stations) Amendment Bylaws 2008, which were central to the dispute. The court held that publication of the bylaws was sufficient notice to all, and the applicants/respondents were deemed to have been aware of them. The court also determined that the claim of lack of notification was a concealment of a material fact, as there had been a public notice and opportunity for objection. On the issue of discrimination, the court held that differentiation in treatment was justified by the legitimate purpose of decongesting the city. Public...
Court Disposition
Ex parte stay order vacated; leave for judicial review remains; costs awarded to applicant, respondents, and 3rd interested party.
Orders
- The ex parte order granted on 27th March 2008, in so far as it ordered that leave operates as stay, is vacated.
- The order for leave to apply for judicial review remains intact.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Misc. Civ. Appli. 130 of 2008
REPUBLIC
VERUS
TRANSPORT LICENSING BOARD ................................................................................ 1ST RESPONDENT
THE COMMISSIONER OF POLICE ................................................................................ 2ND RESPONDENT
THE HONOURABLE ATTORNEY GENERAL .............................................................. 3RD RESPONDENT
PERMANENT SECRETARY
MINISTRY OF LOCAL GOVERNMENT ..................................................................... 4TH RESPONDENT
EX-PARTE
MIKE MUSA MUNGA ............................................................................ 1ST APPLICANT/RESPONDENT
JAMES NYARANGI …………..…………………..……………….….. 2ND APPLICANT/RESPONDENT
MAUREEN NGUMI …..................................................................……. 3RD APPLICANT/RESPONDENT
HILDA INDAKWA ……….................................................................… 4TH APPLICANT/RESPONDENT
ANDREW MUTHEE ……............................................................…….. 5TH APPLICANT/RESPONDENT
PETER KARIUKI ................................................................................... 6TH APPLICANT/RESPONDENT
SAMWEL MWAURA ............................................................................ 7TH APPLICNT/RESPONDETNT
ANDREW BWOGE .............................................................................. 8TH APPLICANT/RESPONDENT
AND
THE CITY COUNCIL OF NAIROBI .......................................... 1ST INTERESTED PARTY/APPLICANT
THE KENYA BUS SERVICE LTD ................................................ 2ND AFFECTED/INTEESTED PARTY
THE CITY HOPPER LTD ........................................................... 3RD AFFECTED/INTERESTED PARTY
THE DOUBLE AUTO TECH LTD .............................................. 4TH AFFECTED/INTERESTED PARTY
THE PERMANENT SECRETARY
MINISTRY OF TRANSPORT ................................................... 5TH AFFECTED/INTERESTED PARTY
THE REGISTRAR OF
MOTOR VEHICLE .......................................................................... AFFECTED/INTERESTED PARTY
RULING
I have considered the arguments of the Applicant, 1st Interested Party Counsel, and the arguments of the 1st to 4th Respondents’ Counsel and 5th and 6th Interested Party including the arguments of the 3rd Interested Party Counsel concerning the Application to vacate or set aside the exparte orders of the 27th March 2008 made by the then Vacation Judge.
Counsel for the Applicant/Respondents has declined to respond to the arguments of the applicant Interested Party and the other two Counsel.
It is not controverted that the decision to reorganise parking and routes in the City of Nairobi, is the subject matter of the Bylaws entitled the City of Nairobi (Omnibus Stations) Amendment Bylaws 2008 which were not in turn, disclosed or availed to the Vacation Judge when he gave the exparte order.
Pursuant to s 69 of the Interpretation and General Provisions Act Cap 2, the publication of the Bylaws is a notice to all. The Applicants respondents are therefore deemed to have been aware of the Bylaws upon their publication on 20th March 2008.
It is also clear to the Court that on the issue that the Applicants/Respondents had not been notified - this was also a concealment of a material fact in that there was a public notice of the making of the Bylaws on 6th October, 2006 and objection to them had been invited within 12 days of the Notice.
I therefore rule that on a prima facie basis, there was a serious nondisclosure of material facts which could have materially affected the granting of the order.
On the issue of public interest I reiterate what I observed on a tentative basis in HCMS 133/2008 R v PERMANENT SECRETARY MINISTRY OF LOCAL GOVERNMENT ex-parte Immaculate Transporters & 18 othersthat in traffic matters there cannot be greater public interest than the smooth flow of traffic, order and discipline.
On the issue of the alleged discrimination I rule on a tentative basis that there cannot be discrimination in law unless the difference in treatment is not based on a legitimate purpose. In this case the differentiation in treatment is apparently based on the need to decongest the City by having few operators and defined routes.
For the above reasons I vacate the order granted on 27th March 2007 in so far as it ordered that leave operates as stay, but I leave the order for leave intact. I award costs to the Applicant 1st the Respondents and 3rd Interested Party to the extent of participation.
It is so ordered 14th day of May 2008.
J.G. NYAMU
JUDGE