Case Metadata |
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| Case Number: | Judicial Review 27 of 2018 |
|---|---|
| Parties: | Charles Kanyi Njagua v Nairobi County Government & Governor of Nairobi |
| Date Delivered: | 26 Mar 2018 |
| Case Class: | Civil |
| Court: | High Court at Nairobi (Milimani Law Courts) |
| Case Action: | Ruling |
| Judge(s): | Roselyne Ekirapa Aburili |
| Citation: | Charles Kanyi Njagua v Nairobi County Government & another [2018] eKLR |
| Court Division: | Judicial Review |
| County: | Nairobi |
| Case Outcome: | Application dismissed |
| Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
JUDICIAL REVIEW NO. 27 OF 2018
IN THE MATER OF AN APPLICATION FOR JUDICIAL REVIEW ORDER OF CERTIORARI AND MANDAMUS
AND
IN THE MATTER OF THE DECISION MADE BY THE COUNTY GOVERNMENT O NAIROBI TO ISSUE A BAN OF THE FERRYING OF PASSENGERS ON MOTOR CYCLES IN AND OUT OF NAIROBI CENTRAL BUSINESS DISTRICT KNOWN AS THE “BODABODA BAN”
AND
IN THE MATTER OF THE IMPOUNDING OF MOTOR CYCLES IN NAIROBI CENTRAL BUSINESS DISTRICT AND ARRESTING OF MOTOR CYCLISTS PURSUANT TO THE “BODABODA BAN”
BETWEEN
CHARLES KANYI NJAGUA………………….........APPLICANT
-VERSUS-
NAIROBI COUNTY GOVERNMENT…...….1ST RESPONDENT
GOVERNOR OF NAIROBI ………………..2ND RESPONDENT
RULING
1. By a chamber summons dated 24th January 2018 the exparte applicant Charles Kanyi Njagua seeks from this court leave to apply for the following orders:
1. Certiorari to quash the notice and decision made on the 22nd January 2017 by the respondents Nairobi County Government and the Governor Nairobi to ban the ferrying of passengers on motor cycles in the Nairobi Central Business District herein after referred to as the ‘Boda boda ban.’
2. Mandamus be issued to compel the respondents to release the motor cycles they have impounded and motor cyclists they have arrested pursuant to the ‘boda boda ban’.
3. The grant of leave to apply for the Judicial Review orders sought herein do operate as a stay against the respondents, their agents and servants from implementing and or proceeding on with the said decision made on 22nd January 2018 to ban the ferrying of passengers on motor cycles in the Nairobi Central Business District and to stop any inference with their ordinary mode of business.
4. Costs of this application and requests for review be awarded to the applicant to be paid by the interested parties (sic).
2. The chamber summons is predicated on the statutory statement and verifying affidavit sworn by the applicant Charles Kanyi Njagua.
3. The exparte applicant’s case is that he is an elected Member of Parliament for Starehe Constituency in Nairobi County. That on 22nd January 2018 the respondents issued a ban on ferrying of passengers on motor cycles in Nairobi Central Business District popularly known as the ‘boda boda ban,’ on account that there was rampant and raising rates of crime perpetrated and or aided by criminals on motor cycles.
4. It was alleged that the decision to ban the ferrying of passengers on motor cycles in the Nairobi Central Business District was unilaterally made by the respondents and without any consultations of the key stakeholders.
5. The applicant claims that the decision to ban the boda boda riders is ill informed and unproportioned as the acts of some individuals should not be visited upon the rest generally as this is equivalent to issuing of blanket blame.
6. According to the applicant, the ‘boda boda ban’ may result in a rise in crime as the ban strips many individuals and families of their source of livelihood and may therefore lead to those individuals resorting to crime for survival due to frustrations.
7. Further, it is claimed that on 23rd January 2018, the respondents impounded motor cycles and arrested cyclists in the Nairobi Central Business District (NCBD) pursuant to the ban which actions, in the applicant’s view, are curtailing the economic rights of the many citizens who rely on the ferrying of passengers on motor cycles in the City Centre of Nairobi as a source of livelihood hence the orders sought should be granted as the ban has caused a public outcry due to loss of livelihood. The applicant annexed to the application a faint newspaper ( Daily Nation copy of Wednesday January 24th, 2018 titled “Sonko kicks boda bodas out of CBD)” and a further annexture CKNI, is an enlarged version of the said newspaper publication.
8. The respondents filed grounds of opposition dated 30th January 2018 and filed on the same day contending that the subject matter herein is Resjudicata, as the same was previously litigated against the respondent and conclusively determined by this court vide Petition No. 521/2015 in City Riders Sacco & 11 Others vs County Government of Nairobi & 3 Others [2016]e KLR and Nairobi JR Miscellaneous Application No. 553 of 2016, County Government of Nairobi & 2 Others Exparte Boda boda Welfare Association suing through its Chairman Kimani Wa Nduthi [2016] e KLR; that the application is incompetent and fatally defective in so far as it purports to seek the prayer for certiorari yet it fails to demonstrate the decision sought to be quashed;
9. It was contended that the applicant had not demonstrated that he has an arguable case which should warrant the issuance of the orders sought. Further, that the application is abstract, vague and fails to illustrate the legal and factual threshold for grant of the orders sought; that the subject of the application flies in the face of the Section 118 A of the Traffic Act Cap 403 of 2014 which confers on the 1st respondent power to make laws to regulate taxi cabs and by extension motor cycle taxi and hence grant of leave to institute Judicial Review is frivolous, ineffectual and contrary to public policy. Finally, it was contended by the respondents that the application is contrary to the overriding objective of the court, waste of judicial time and otherwise an abuse of court process and the same should be dismisses with costs.
10. The respondents also filed a replying affidavit sworn by Leboo Ole Morintat, the Acting County Secretary of the Nairobi County Government reiterating the grounds of opposition and adding that on 11th November 2015 the 1st respondent issued a notice through the National Daily Newspapers titled “Ban of motor cycles (Boda boda) operators from Central Business District,” as shown by an annexed copy of the notice banning all motor cycle operators ferrying passengers to and from the Nairobi Central Business District from continuing with such operations. That following the said ban, the affected operators filed Petition No. 521/2015(supra) and also sought for conservatory orders which application was dismissed and the main Petition( as per annexed judgment) was also dismissed on 31st October 2016, which judgment was neither set aside nor vacated.
11. That again on 30th May 2017 this court rendered a judgment in Nairobi HC JR Miscellaneous No.553/2016 (supra) over the same subject matter which judgment has never been set aside or renewed and that the judgment is over the same subject matter.
12. That despite the notice issued in 2015 the motor cycle operators have continued to carry out their businesses in the Central Business District with impunity and blatant disregard of the law hence the notice of 22nd January 2018 was just, in addition to the notice issued on 11th November 2015 reinstating the respondent’s stand on ferrying of passengers within the Central Business District by motor cyclists, which notices the 1st respondent has a mandate to issue, to regulate traffic with the Central Business District.
13. It was further contended that the court having already deliberated on the issue on whether motor cyclists should be allowed to operate within the Central Business District, the same issue cannot be reopened by filing a new suit and without disclosing the previous suit on the same subject matter.
14. Further, that nonetheless, the ban is in the public interest because of immense confusion created to both pedestrians and other car drivers in that many pedestrians have been knocked down by motor cycle riders who blatantly fail to observe traffic rules and regulations; that there have been incidences of criminals using motor cycles to commit crime within the Central Business District and take off; that there has been increased air and noise pollution within the Central Business District as motor cycles are noisy and often make lives of those who operate within the Central Business District unbearable due to the noise of their engines; and that by issuing the notices, the 1st respondent has been performing its functions under the law by regulating transport in the County and in accordance with paragraph 60 of the decision in Petition No. 521/2015.
15. The respondents further contended that they were not aware of any motor cycles which had been impounded or any motor cyclist who had been unlawfully arrested by the agents of the 1st respondent County Government, and that no particulars or evidence of such actions had been supplied to this court.
16. Further, it was contended that albeit the applicant was a Member of Parliament, he had not stated how he had been affected by the ban and that neither had he disclosed any specific persons who had been affected by the ban hence the public interest militates against grant of the orders sought as the same if granted would prejudice millions of Kenyans who have suffered inconvenience brought about by motor cycle operators in the City’s CBD.
17. It was further deposed in contention that the ongoing relocation of motor cyclists from the CBD was going to affect other traders including hawkers hence it was not true that only motor cycle operators are being targeted.
18. It was therefore contended that the applicant had not demonstrated that he had a prima facie arguable case to merit grant of the orders sought and therefore this court was urged to dismiss the application for leave and stay for being vexatious and waste of judicial time over the same subject matter which the court has on previous occasions rendered itself.
Oral Submissions
19. The parties’ advocates urged the application orally with Mr Okatch counsel for the applicant submitting that there was no consultation with the applicant or motor cycle riders before the ban was issued.
20. Further, that this was not the first time the County Government had banned the riders from the Central Business District but that the respondent having allowed the riders to operate within the Central Business District without interference, and without charging them with any offence, it is the duty of the court to curb haphazard implantation of decisions that do not afford parties any notice. That it is only humane that the applicants are given notice hence they should be granted leave to ventilate their grievances.
21. In opposition to the application, Miss Gladys Mwangi counsel for the respondents submitted on behalf of the respondents, quite vigourously, contending on behalf of her clients that this application is an abuse of the court process because this matter is Resjudicata Petition No. 521/2015 which concerned the same parties /applicants who are now litigating under the Starehe member of Parliament. That in the previous Petition No. 521/2015 the applicants motor cyclists challenged the notice of 11th November 2015 but that the court declined to issue any conservatory orders and finally when the full decision was rendered, the court found that the 1st respondent had jurisdiction to regulate transport within the Central Business District.
22. Further it was submitted that in 2016 vide JR No. 553/2016, the same group filed a Judicial Review matter which Odunga J dismissed for being Resjudicata.
23. Counsel for the respondents charged at the applicant for failure to disclose the above material facts of previous similar litigation affecting the same people. She relied on the case of James Muiruri Gichango vs Resident Magistrate Mavoko Law Courts on the need to demonstrate good faith.
24. Further reliance was placed on JR 435/2017 Republic vs Kenyatta University & Muema vs Exparte Awersome Kenya Ltd on the importance of seeking leave and argued that this application is not arguable.
25. Further, it was argued that there is no evidence of impounding motor cycles or arrests and that newspapers cuttings are not decisions for filing of Judicial Review proceedings.
26. The respondent’s counsel further submitted relying on Republic vs County Assembly of Nakuru & 2 Others exparte Samuel Waithuko Njanne & 21 Others (where the court held that failure to annex the impugned decision was fatal.
27. It was further submitted that the applicant Member of Parliament had not disclosed who he was acting on behalf and how he had been affected by such alleged directives.
28. Relying on Republic vs Kenya Revenue Authority Exparte Paul Makokha Okoiti[2016] e KLR it was submitted that multiplicity of suits amounts to abuse of court process and waste of judicial time.
29. In a rejoinder, Mr Okatch counsel for the applicant submitted that the parties to this litigation are different because the earlier pleadings were through a petition whereas this is a Judicial Review application and secondly that his client is protecting economic rights of his constituents as their Member of Parliament.
30. On non-disclosure of previous litigation, it was submitted that the applicant was not a party to the earlier proceeding and that his client had an arguable case because the subsequent impugned decision was made without notice to the applicant and the riders who are allowed to operate in the City and who must therefore be given time to vacate the CBD.
31. It was urged that this was a matter of public notoriety yet no notice was issued by the respondents.
DETERMINATION
32. I have carefully and conscientiously considered the applicant’s application for leave and stay. I have also considered the opposition by the respondents and their respective advocate’s submissions for and against the application and the authorities cited.
33. The main issues for determination in this matter are:
a. Whether failure to annex the impugned decision is fatal to the application for leave?
b. Whether the application is Resjudicata previous decisions in Petition No. Petition No. 521/2015 and JR No553/2016.
c. Whether there was material disclosure of existence of decisions involving the same subject matter and parties.
d. What orders should this court make with regard to leave and stay.
e. Who should bear costs of these proceedings.
34. On the first issue, in this case, albeit the respondent contended that there was no decision made to ban the motor cycle riders from the Central Business District, there was joining of issues when a deposition and submission was made that it was in the public interest that riders be removed from the Central Business District.
35. It must also be understood from the onset that the requirement for leave to apply for the judicial review remedies of prohibition, mandamus and prohibitions as stipulated in Sections 8 & 9 of the Law Reform Act and Order 53 of the Civil Procedures Rules is statutory requirement with a substantive purpose and not a procedural technicality. It is intended to, as was espoused in Republic vs County Council of Kwale & Another Exparte Kondo & 57 Others Mombasa HC MCA 384/1996 to eliminate at an early stage any applications for Judicial Review which are frivolous or hopeless and secondly to ensure that the applicant is only allowed to proceed to substantive hearing if the court is satisfied that there is a case fit for further consideration.
36. The requirement that leave must be obtained before making an applications for Judicial Review is designed to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safety proceed with administrative action while proceedings for Judicial Review of it were actually pending even though misconceived. Leave may only be granted therefore if on the material available the court is of the view, without going into the matter in-depth, that there is an arguable case for granting relief claimed by the applicant; the test being whether there is a case fit for further investigation at a full inter parties hearing of the substantive application for Judicial Review. It is an exercise of the court’s discretion but always it has to be exercised judicially. See Republic vs. County Council of Kwale & Another Ex Parte Kondo & 57 Others Mombasa HCMCA No. 384 of 1996; Bosire, Mbogholi-Msagha & Oguk, JJ in Matiba vs. Attorney General Nairobi H.C. Misc. Application No. 790 of 1993; and Republic vs. The P/S Ministry of Planning and National Development Ex Parte Kaimenyi [2006] 1 EA 353.
37. What emerges from the above decisions which have gained judicial notoriety is that leave is not automatic. It goes to the very substance of the main application as intended. The leave once granted is what vests in the court judicial review power or jurisdiction and secondly it is at the leave stage that the court will establish whether there indeed exists a prima facie arguable case for in-depth investigation at the substantive stage.
38. It therefore follows that failure to annex a decision which is impugned where issues are joined is not fatal to the proceedings and the court must therefore proceed to determine the chamber summons on its very merit on the basis of the other issues as framed above.
39. On the second issue of whether this application is Resjudicata the previous petition and judicial review matters cited above, the respondents strongly contended and annexed decisions in Petition No. 521/2015 and JR 553/2016 to demonstrate that these proceedings are a replica of the proceedings in the above decisions where this court dismissed similar conservatory prayers both at the interlocutory and at the substantive hearing stage.
40. On the part of the applicant it was submitted that in any event, the applicant is different and that the riders had been left to operate within the Central Business District without interference even after those two decisions were made hence they should be treated humanely by being given notice and time to vacate from the Central Business District.
41. In addition, the applicant asserted that the earlier case was a petition whereas this is a Judicial Review matter and that the applicant seeks to protect the economic rights of the motor cycle riders.
42. The applicant has clearly brought the application under Sections 8 & 9 of the Law Reform Act Cap 26 Laws of Kenya and Order 53 of the Civil Procedure Rules among other provisions of the law hence he considers that leave to apply for certiorari and mandamus is a critical to initiation of judicial review proceedings under the stipulated provisions.
43. However where there is a preliminary point of law raised on account that the proceedings are Resjudicata other proceedings or decisions of courts of competent jurisdiction or that this court has no jurisdiction to hear and determine the matter, the court must of necessity first and foremost pause and inquire into those preliminary issues before progressing onto the merits of whether or not leave to institute judicial review proceedings is available to the applicant.
44. Case law has tended to suggest that Resjudicata does not apply to judicial review proceedings. This is what was held in Re National Hospital Insurance Fund and Central Organization of Trade Unions (K) [2006] 1 EA 47. However, the courts have over time made it clear that this does not mean that the court is powerless where it is clear that by bringing proceedings, a party is clearly abusing the court process.
45. Thus, whereas Resjudicata may not be invoked in Judicial Review, the courts remain with the inherent jurisdiction to terminate proceedings where the same amount to an abuse of its process. This is so because one of the cardinal principles of law is that litigation must come to an end and that therefore where a court of competent jurisdiction has pronounced a final decision on a matter which decision has not been challenged or upset by a superior court, to bring fresh proceedings whether as Judicial Review or constitutional petition or otherwise would no doubt amount to an abuse of the court process and therefore the court would not hesitate to decline sitting on appeal of decisions that have concluded such former disputes, by invoking its inherent power, as long as that inherent power is consistent with the Constitution or any other written law.
46. Inherent jurisdiction as stated by Kimaru J in Stephen Somek Takwenyi vs David Mbuthia Githare & 2 Others HCC (Milimani) 363/2009 is “the power inherent in the court but which should only be used in cases which bring conviction to the mind of the court that it has been deceived.”
47. It follows that this court may in appropriate cases invoke its inherent jurisdiction to make such orders as may be necessary for the ends of justice or to prevent abuse of its process and this may be done where the doctrine of Resjudicata would be applicable.
48. This court’s attention was drawn to Petition No. 521/2015 City Riders Sacco & 11 Others vs County Government of Nairobi & 3 Others [2016] e KLR where several motor cycle rider Saccos petitioned the court against the 1st respondents herein, the National Police Service Commission, the Inspector General of Police and the Honourable Attorney General seeking for several orders including declarations, and injunctions, on the account of a notice issued on 11th November 2015 by the County Government of Nairobi, banning of motor cycles (Boda Boda) operators from Central Business District.
49. The petitioners in the constitutional petition described themselves as “boda boda riders,” registered pursuant to the Transport Act and the Co-operatives Societies Act, Cap 490 Laws of Kenya and that they were members of the two wheeled taxi operators within the Central Business District of Nairobi. They claimed that they were aggrieved by the decision to stop them from operating their motor cycles within the Central Business District of the 1st respondent herein as such decision affects then and their families likelihood and that it was discriminatory.
50. The court (Mumbi Ngugi J) after hearing an interlocutory application for conservatory orders rendered her decision/ruling on 19th February 2016 dismissing the application for conservatory orders and observed that the material placed before her suggested that “the 1st respondent was carrying out its constitutional and statutory mandate with regard to regulation of road transport within the City of Nairobi hence the public interest consideration is in favour of allowing it to do that which the law, on the face of it, allows it to do.”
51. In the final decision rendered on 31st October 2016 by Honourable J.L. Onguto J ( RIP) ( as he then was), agreeing with the earlier decision in a ruling by Mumbi Ngugi J, the learned, recently departed brother judge dismissed the petition. He did not find any violation of the petitioner’s rights or any contravention of the law by the respondents. The learned judge wholly adopted the reasoning of Mumbi Ngugi J when pronouncing herself in the application for conservatory orders. That judgment which is pretty detailed was clear that the public transport issue as well as parking within the Central Business District was to be registered by the County Government.
52. Again in JR 553/2016 Republic vs County Government of Nairobi, Inspector General & Honourable Attorney General exparte United Boda Boda Welfare Association suing through their Chairman Kimani Wa Nduthi [2017] e KLR decided on 30th July 2017 by Odunga J, the same applicants in the latter Judicial Review application challenged a notice by the 1st respondent herein banning with immediate effect at boda boda (motor cycle) operators from ferrying passengers to and from the Central Business District. The 1st respondent raised a preliminary objection on account that the matter was Resjudicata constitutional Petition No. 521/2015 dated 20th November 2015 (supra) which had been dismissed by Onguto J(RIP) on 31st October 2016.
53. The applicant had argued that the specifities and parties in the constitutional petition were distinguishable from those before the court under the Judicial Review application for leave.
54. The learned judge Odunga J after hearing the preliminary objection in the Judicial Review matter upheld the preliminary objection and struck out the application for leave with costs on account of its being Resjudicata Petition 521/2015.
55. As was stated in Omondi vs NBK Ltd & Others [2001] KLR 579, this court when called upon to determine whether proceedings are Resjudicata other proceedings and therefore an abuse of account process must, as I have done, look at the pleadings and other relevant matter in its records and it is not necessary to file affidavit evidence on those matters, albeit in this matter there is an affidavit annexing decisions on the earlier proceedings.
56. In Gurbachan Singh Kabi vs Yowani Ekori CA 62/1958, the then EACA stated:
“ Where a given matter becomes the subject of litigations in, and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not, except under special circumstances, permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of Resjudicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties exercising reasonable diligence, might have brought forward at the time…..No more actions that one can be brought for the same cause of action and the principle is that where there is but one cause of action, damages must be assessed once and for all…
A cause of action is every fact which it would be necessary for the plaintiff to prove, if traversed. In order to support his right to the judgment of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.”
57. Waki JAC had this to say in Apondi vs Canuald Metal Packaging [2005] EA 12:
“ A party is at liberty to choose a forum which has the jurisdiction to adjudicate his claim, or choose to forego part of his claim and he cannot be heard to complain about that choice after the event and it would be otherwise oppressive and prejudicial to other parties and an abuse of the court processes to allow litigation by installments.
58. From the above decisions and the facts of this case and the previous cases namely Petition 521/2015 and JR 553/2016, I am persuaded that what has changed is the name of the applicant who, though not specifically pleading that he is suing on behalf of the boda boda riders of Nairobi Central Business District, but the facts of the case clearly show that the applicant member of Parliament for Starehe Constituency is reviving the same claim that petitioners and applicants in the previous cases had before the court and which were dismissed by the courts of competent jurisdiction.
59. What the applicant has done is to give this case and the aggrieved parties who are non-parties to these proceedings a complexion of a member of Parliament suing on behalf of the same boda boda riders who had initially approached the court using different names, and or organizations, for the fact that there is a renewed threat to get rid of the motor cycle riders from the City, by way of implementation of the 1st respondent’s constitutional and statutory obligations to regulate public transport within the City County’s CBD.
60. What this court has observed is that there has been impunity of the highest order, where the City County tries to implement policies and perform their constitutional mandates, it is held hostage by politicized litigation( safely call it politigation )because the riders are potential voters at every election and so they are left to operate within the Central Business District during the electioneering period, for purposes of voting but immediately after the elections, they are told to move out. They however resist their eviction, approach their city fathers for protection and with impunity, they continue operating from the Central Business District undisturbed for some time. The matter is then forgotten until a life or limb is lost through criminal activities perpetrated by some of the motor cycle operators is when a bell is rung to awaken city fathers to enforce the law on regulation of transport in the City. No decisive action is ever taken to rid the City of this menace and reorganize it to its lost glory of being the Green City in the Sun. informal traders and motor cycle riders have for a long time been pawned by our politicians and it is high time that this pawning stopped.
61. Today the riders are a menace but come general elections they will become necessary evils. This is trite unfortunate that the law is enforced conveniently.
62. There must nevertheless be an end to litigation and to impunity. The same persons of interest cannot be left to oscillate around the courts in different colours of right where today they sue as a Sacco, tomorrow as a Welfare Association and a day after they come as a Member of Parliament with the latter trying to protect their voters’ interests. People must learn to respect the rule of law and accept verdicts of the courts and move on or challenge those verdicts to higher courts. People cannot be allowed to abuse the court process by appearing and disappearing as and when it is convenient, with different types of pleadings but the same cause of action.
63. On the part of the respondents, they must enforce the law. They must not pawn the riders for political gain. They must not create any legitimate expectation in the minds of the riders who are not law abiding that the law will not be enforced and after elections, the City fathers find it convenient to enforce the law. In my view, the conduct of both the applicants and respondents is to mutilate the rule of law and create a lawless society.
64. The respondents are not a toothless dog. They have the means to enforce the law within legal parameters. They must do so and be seen to do so decisively. The public interest is in favour of public order and security of persons in the Central Business District. There are many ways of doing business for the riders. There is no legitimate expectation that they must violate the law and court orders in order to eke a living and make economic sense of their business. Law and order enforcement can only be achieved if the respondents undertake their duties and mandate diligently. They have nonetheless left this city to rot in filth which then overshadows the wealth that this once beautiful City had the potential to generate. The City fathers have abdicated their mandate. They have remained merely defensive whenever such issues as these arise. They must be awakened.
65. For those reasons, I find that there is no arguable prima facie case disclosed herein for the court’s in depth investigation at the substantive stage. There is nothing new being propagated by the Honourable Member of Parliament. His application, however well intended, is, unfortunately an abuse of court process. It is a replica of previous litigation which this very court differently constituted dismissed. There is nothing on record that is a semblance of violation or threatened violation of the applicant’s rights or rights of the riders. The application is intended to perpetuate impunity and to make enforcement of City by-laws impossible. This application is accordingly hereby dismissed with no orders as to costs.
Dated, signed and delivered in open court at Nairobi this 26th day of March, 2018.
R.E. ABURILI
JUDGE
In the presence of
N/A for the applicant
N/A for the Respondents
CA: Kombo
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