https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13069

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **JUDICIAL REVIEW NO. E160 OF 2026** **SUPER METRO LIMITED………………………………………………..………. APPLICANT** **VERSUS** **COUNTY GOVERNMENT OF NAIROBI……………………………...1ST RESPONDENT** **THE CHIEF OFFICER MOBILITY, NAIROBI COUNTY……...….2ND RESPONDENT** **JUDGEMENT** 1. The applicant moved this court by way of an originating motion, dated 25th May 2026, supported by an affidavit, sworn by Mr. Josphat Peter Mukuria, of even date. The application seeks orders of *certiorari*, *mandamus*, prohibition, declaration and a permanent injunction, with respect to a decision made by the respondents, which barred vehicles belonging to the applicant from accessing the Moi Avenue Lane Kenya Cinema terminus, contrary to a letter of authority that had been issued to it by the respondents, dated 13th March 2024. 2. The case, by the applicant, is that the respondents made a unilateral decision, in the night of 25th May 2026, blocking access to vehicles belonging to the applicant, to the said *matatu* terminus, and it is contended that that decision was arrived at through a procedure that was manifestly unjust and unfair. It is contended that the respondents did not give the applicant a notice of any charge against it, nor a hearing or a chance to deliberate between it and them, before making the decision. It is further contended that there was no legitimate reason to revoke the licence or authority to access the said terminus, for the applicant had always complied with the relevant provisions of the law as required of it by the 1st respondent. 3. The respondents were served, and filed a notice of appointment, by Mr. Fredrick Achola, Advocate, dated 8th June 2026. They, however, did not file a response of any kind, to the originating motion. 4. The matter was initially placed before me on 26th May 2026, under certificate of urgency, and I gave directions on service, a hearing *inter partes*, on 9th June 2026, with respect to prayers 2 and 3 of the originating motion, which sought temporary orders of injunction. On 9th June 2026, Mr. Akhulia appeared for the applicant and Mr. Achola for the respondents. Mr. Achola pleaded for time to file responses, while Mr. Akhulia prayed for temporary orders pending disposal of the prayers for temporary injunctions. I granted the respondents 14 days to file and serve responses, but declined to grant temporary relief. The matter was fixed for hearing, on prayers 2 and 3, on 1st July 2026. 5. Come 1st July 2026, only Mr. Akhulia, for the applicant, attended court. It transpired that the respondents had not filed any responses to the application, generally, or with respect to prayers 2 and 3. In that event, I allowed the said prayers 2 and 3 of the originating motion, to subsist pending final disposal of the originating motion. I also directed that the rest of the prayers of the originating motion be subjected to written submissions, to be filed and exchanged within 14 days, with a mention slated for 29th July 2026. 6. On 29th July 2026, only Mr. Akhulia attended court. He indicated that written submissions for either side had not been filed, and pleaded for 3 days to comply. I granted to him the 3 days requested for, and fixed the matter for judgement on 21st August 2026, to be delivered via CTS. 7. The applicant has filed written submissions, dated 15th July 2026. It submits that it was not heard before the administrative decision of 25th May 2026 was made, or the action of that date was taken, and the respondents had not expressly indicated whether they had cancelled or suspended the operation of the authority, earlier given to it by them, but had admitted to closing the terminus arbitrarily. It is submitted that the closure of the terminus, while the licence was operative, was unwarranted. 8. The decisions in *Kenya National Examinations Council; GGN & 9 others (Ex parte) vs. Republic* [1997] KECA 58 (KLR), *Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd* [2002] eKLR, *Judicial Service Commission & another vs. Lucy Muthoni Njora* [2021] eKLR, *Zachariah Wagunza & another vs. Office of the Registrar Academic Kenyatta University & 2 others* [2013] eKLR [2013] KEHC 6908 (KLR), *Commissioner of Lands vs. Kunste Hotel Limited* [1997] eKLR, *Onyango Oloo vs. Attorney General* [1987] eKLR [1987] KECA 56 (KLR) [1989] EA, *Sceneries Limited vs. National Land Commission* [2017] KEHC 8460 (KLR), *Makori vs. Kenya National Highways Authority* [2025] KEHC 4443 (KLR) and *Super Metro Limited vs. National Transport and Safety Authority and Nairobi City County and others* HCMISC No. E017 of 2023 (unreported) and *Republic vs. Principal Kadhi, Mombasa, Ex parte Alibhai Adamali Dar & 2 others, Murtaza Turabali Patel (Interested Party)* [2022] eKLR [2022] KEELC 371 (KLR) are cited, and so are Articles 47 and 50(1) of the Constitution, section 7(2) of the Fair Administrative Action Act, Cap. 7C, Laws of Kenya and *Halsbury Laws of England* 5th Edition 2021 Vol. 61 para 639. 9. The respondents have not filed written submissions. 10. From my reading of the filings by the applicant, I am persuaded that what I am bound to consider is whether the originating motion herein has merits. 11. I am guided by *Pastoli vs. Kabale District Local Government Council & Others* [2008] EA 300, on what I should look out for when confronted with a judicial review application, which is whether the applicant has demonstrated that the decision or the act complained of is tainted with illegality, irrationality or procedural impropriety. These would turn around error of law, acting without jurisdiction, *ultra vires* or contrary to the provisions of the law, gross unreasonableness, failure to act fairly, non-observance of the rules of natural justice or failure to act with procedural fairness. 12. The principal complaint, by the applicant, is that it was not heard, before the decision or action against or affecting it was made or taken by the respondents. The rules of natural justice require that no one is to be condemned unheard, and no adverse decision or action is to be made or taken against anyone before that person is heard. There is constitutional basis for that, under Articles 47 and 50 of the Constitution. Section 4(3) of the Fair Administrative Action Act elaborates on Article 47, where it emphasizes on prior and adequate notice of the nature and reasons for the proposed administrative action, and an opportunity to be heard and to make representations. 13. So, what happened here? Was there adherence to section 4(3) of the Fair Administrative Action Act? 14. There is material demonstrating that the applicant had been authorised by the respondents, through a permit dated 13th March 2024, to have its vehicles operate from the Kenya Cinema *matatu* terminus, until further notice, subject to payment of seasonal tickets, with a caveat that the permit was liable to revocation for violation of any laws, rules or regulations relating to it. There is material demonstrating that the applicant made the requisite seasonal payments. There is also material demonstrating that the applicant put up a notice blocking *matatus* from using that terminus, allegedly as from the night of 25th May 2026. The applicant contends that it was not given any prior notice and reasons before that action was taken on 25th May 2026, neither was it given an opportunity to be heard or to make representations before the decision was made or the action taken. 15. The respondents were served with the process in this cause, as narrated above. They appointed an Advocate, who duly filed a notice of appointment. That Advocate attended court on 9th June 2026. He sought time to file a response, which request was granted. He never, thereafter, filed the response, and he, apparently, kept away from the subsequent court appearances, on 1st July 2026 and 29th July 2026. No responses were ever filed, to controvert the allegations made in the originating motion herein, dated 25th May 2026. As it is, the said application is unopposed, and the allegations made in it are uncontroverted. 16. Based on the above, the only conclusion that I can make is that the applicant herein was not given prior notice and reasons, before the decision or action to block its vehicles from accessing the terminus, which it had been permitted prior to access, and for which it had paid the requisite fees, was made or taken; and it was not given an opportunity to be heard and to make representations on the matter, before that decision was made or the action taken. Consequently, a case has been made out, for grant of the orders sought, as the impugned decision was procedurally unfair, for the rules of natural justice were breached. The decision or action was made or taken abruptly and arbitrarily, without consideration of the inconvenience or disruption that it would or could cause or occasion on those affected, and its making or taking was, therefore, irrational and unreasonable. 17. Overall, in view of everything discussed hereabove, I hereby allow the originating motion, dated 25th May 2026, in terms of prayers 4, 5, 6 and 10 thereof. Prayers 7, 8 and 9 are superfluous, for they are subsumed in the prayers granted above. On costs, I order that the applicant shall have the costs of the application. Orders accordingly.. **DELIVERED VIA CTS, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 21ST DAY OF AUGUST 2026.** **W MUSYOKA** **JUDGE** **Mr. Abdirahman, Court Assistant.** **Advocates** **Mr. Akhulia, instructed by Mwathi Wanyaga Advocates, for the applicant.** **Mr. Fredrick Achola, Advocate, for the respondents.**