[2019] KEHC 3417 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT EMBU

CONSTITUTIONAL PETITION NO. 3 OF 2019

SPACE GEO ENTERPRISES LTD……..…PETITIONER/APPLICANT

VERSUS

KENYA NATIONAL HIGHWAYS AUTHORITY……….RESPONDENT

R U L I N G

A.Introduction

1. This ruling pertains to the application dated 29th April 2019 seeking release of the insurance sticker and number plates for motor vehicle registration number KBH 024Y belonging to the applicant. The application also seeks restraining orders against the respondent from acting arbitrary in respect of the petitioner’s motor vehicle.

2. It is the applicant’s case that the respondent removed the insurance sticker and number plates from his motor vehicle number KBH 024Y on the 8th April 2019 on allegations that it was overloaded. The applicant asserts that the respondent failed to establish that the motor vehicle was overloaded as it was not weighed at any fixed or mobile weighbridge.

3. The applicant further asserts that the respondent has not preferred any charges against the petitioner or his driver since the date of seizing the sticker and number plates. The applicant asserts that as a result of the respondent’s illegal, malicious arbitrary and unjustified actions, the applicant cannot use the truck for commercial purposes and as such he is exposed to economic loss thus infringing on his constitutional rights to property as well as the right to a fair and just administrative action.

4. The respondent did not file a response to the application however in their oral arguments before court, Mr. Maruti opposed the application whilst stating that the motor vehicle was impounded for overloading contrary to section 36 of the Act and further that the number plates were removed in accordance with section 106 of the Traffic Act. Mr. Maruti further asserted that the petitioner had not proved economic loss.

B. Analysis & Determination

5. The issue for determination is whether the applicant is entitled to the grant of the conservatory orders sought. I do note that the orders being sought are prohibitory in nature. In the celebrated case of Giella v Cassman Brown [1973] EACA at pg 358-360, an injunction order can only issue upon proof of a prima facie case with a probability or likelihood of success, proof of irreparable damage that cannot be compensated in monetary terms and, assessment on a balance of convenience on which side does justice tilt in favour.See also Nguruman Ltd v Jan Bonde Nielsen and 2 others CA No. 77/2012 and Kenya Commercial Finance Co. Ltd v Afraha Education Society [2001] Vol 1 EA 86 where the court held that all the three conditions and stages must be applied as separate, distinct and logical hurdles which must be surmounted sequentially.

6. However, I am alive to the fact that exercise of such powers is a matter of judicial discretion which must be executed judicially and in a manner that promotes the integrity of the court bearing in mind that judicial power is donated by the people of Kenya through the Constitution. The court of appeal alluded to the application of discretionary powers by the courts while issuing injunctive orders in the case of Abel Salim & 4 others v SF Okong’o & 2 others (1976)eKLR

7. As stated above, it is the applicant’s case that the respondent removed the insurance sticker and number plates from his motor vehicle on allegations that it was overloaded whereas the said motor vehicle was not weighed at a weighbridge or on a mobile weighbridge. It is not in dispute that the respondent has not preferred any charges against the applicant or his driver since the 8/04/2019. The respondent on his part insists without tendering any evidence that the motor vehicle was overloaded and that the insurance sticker and number plates were removed in accordance with the law. It is trite law in evidence that he who asserts must prove his case. Despite these assertions by the counsel for the respondent did not find it necessary to file a replying affidavit. In such cases, the burden of proof lies with whoever wants the court to find in his favour in support of what he claims.

8. Section 107 of Evidence Act succinctly states:

“Whosever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”

9. And Section 108 of Evidence Act, further states thus:

“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”

10. I do note that this court has twice informally issued orders for the release of the insurance sticker and number plates of motor vehicle registration number KBH 042 Y which have not been complied with on 27/05/2019 and on the 11/07/2019. The respondent whose counsels seemed to consent to the orders has continued to disobey them without any reason being given. The respondent is thus in breach of court orders and ought to show cause why they should not be found in contempt. However, the applicant has not moved the court on the issue. I have reason to believe that the applicant wanted to prosecute his application first and obtain the orders he felt would serve his cause.

11. The evidence presented and the conduct of the two partiesprima faciepresents and makes a revelation of some form of inarbitrarily actions undertaken by the respondent which will only be proved or disapproved upon hearing the application. On that account, there is prima facie evidence with a probability of success especially upon proof that the respondent acted inarbitrarily in removing the sticker and number plates of the suit motor vehicle and further that the applicant continues to suffer economic loss as a result of the respondent’s actions.

12. The issue here is whether the applicant is likely to suffer irreparable damage if the orders sought are not granted. It is common knowledge that if the property is not preserved, the applicant will definitely suffer irreparable damage should the same continue to deteriorate.

13. It is not in dispute that the applicant’s vehicle cannot move on the road without number plates and without a sticker. The vehicle is a commercial one and it cannot be used as intended by the applicant. As stated by the applicant, he has incurred economic loss since 8/04/2019 when the vehicle was immobilized.

14. It is also incomprehensible why the respondent never charged the applicant, if he had evidence that he had committed a traffic offence.

15. I reach a conclusion that it is not be in the interest of justice to expose the applicant to further economic loss since it has been shown that conservatory orders are necessary pending the hearing and determination of the petition.

16. I find the application dated 29/04/2019 merited and I allow it in terms of prayers (b) and (c) with costs to the applicant.

17. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 16TH DAY OF OCTOBER, 2019.

F. MUCHEMI

JUDGE

In the presence of: -

Mr. Okwaro for Petitioner/Applicant