JUDGMENT
INTRODUCTION
1. The Petitioners filed a Petition dated 23rd February 2018 seeking the following reliefs:
a) A declaration that the Respondents violated, infringed and/or threatened the Petitioners' fundamental rights under the Bill of Rights by seizing and detaining the Petitioners' coin-slot machines;
b) An order for compensation for the loss and damage allegedly suffered by the Petitioners arising from the unlawful and illegal acts of the Respondents; and
c) Costs and interest.
2. The Petitioners' case is that on diverse dates between June 2017 and 11th February 2018, police officers from Kisii Police Station, Gesonso Police Station and Masimba Police Station unlawfully and without notice seized and detained coin-slot machines used for betting and gaming. They averred that the seizure was done without sufficient or reasonable cause and that it completely disrupted their business.
3. The Petitioners further averred that during the seizure and detention of the coin-slot machines, some of their employees were arrested. In particular, the 1st Petitioner stated that he was arrested on 12th February 2018 at about 7.30 p.m. and released at midnight on the same day, without any charge being preferred against him and without any explanation for his arrest. The Petitioners also stated that an employee of the 2nd Petitioner was arrested on 29th January 2018 and released on the same day.
4. The Petitioners complained that despite the arrests and seizure of the machines, no charges have ever been preferred against them or their employees. They stated that they have never been served with any notice to attend court and have never been notified of any offence allegedly committed to justify the detention of the coin-slot machines.
5. It was also the Petitioners' case that when the machines were seized, the police officers stated that they had been ordered by the Minister for Interior and Co-ordination of National Government to seize them. The Petitioners contended that the said instructions were unlawfully and unconstitutionally carried out. They further averred that the machines were seized together with the money inside them.
6. The Petitioners stated that despite making several visits and requests to the police stations, the police officers refused to release the coin-slot machines. They contended that the Respondents' actions caused them irreparable loss and severe consequential loss, as they were arbitrarily deprived of the use of the said machines. They therefore pleaded that the Respondents' actions violated their rights under Articles 40 and 47 of the Constitution.
RESPONSES
7. The Attorney General filed Grounds of Opposition dated 5th May 2022, contending that:
a) The Petition does not specifically set out how the Respondents violated the Petitioners' constitutional rights as required by the decision in Anarita Karimi Njeru v Republic (1979) eKLR;
b) The issues raised in the Petition were judicially determined by a court of competent jurisdiction in Samwel Kahiu and 373 others v Betting Control and Licensing Board and 6 others; Association of Gaming Operators-Kenya & another (Interested Parties) [2019] eKLR, and the Petition is therefore barred by the doctrine of res judicata and/or issue estoppel;
c) The Petition does not disclose any acts of omission or commission by the Respondents in the performance of their constitutional and statutory duties under Articles 243 and 244 of the Constitution, the National Police Service Act, 2011 and the National Government Co-ordination Act, 2013;
d) The Petitioners have not come to court with clean hands and cannot seek to enjoy equitable reliefs;
e) The reliefs sought against the Respondents are misconceived, untenable and unsupported by factual evidence or law; and
f) The Petition lacks merit and amounts to an abuse of the court process.
8. The 8th Respondent, the County Government of Nyamira, filed a Preliminary Objection on the ground that it had been wrongly joined in the suit, as no reasonable cause of action had been disclosed against it. It urged the court to dismiss the claim against it with costs.
9. The 11th Respondent, the County Commissioner, Kisii, Godfrey Kegochi, filed a Replying Affidavit dated 4th May 2018. He deposed that the police in Kisii and in Kenya generally had been ordered by the Cabinet Secretary for Interior and Co-ordination of National Government to close all betting businesses operating without licences, without permits, or with illegal permits. He stated that in compliance with the said order, the Petitioners' businesses were closed and the machines confiscated.
10. The 11th Respondent contended that the Petitioners ought to have sued the Principal Secretary for Interior and not him personally. He further averred that the Petitioners did not attach any licences to the Petition, which, in his view, demonstrated that they were operating illegal businesses.
11. The 11th Respondent also averred that the Petitioners had been operating their businesses in hidden places, including rural areas, contrary to the provisions of the Betting, Lotteries and Gaming Act. He stated that the Petitioners' businesses had caused more harm than good to society and that the Petitioners had allowed children to participate in lotto and betting activities, thereby necessitating the immediate closure of their businesses.
12. The 11th Respondent denied that the Petitioners' rights had been infringed. He contended instead that it was the Petitioners' businesses that were infringing on the rights of members of the public. He further claimed that the confiscated machines had not been legally imported into the country. He urged the court not to rely on Nairobi High Court Constitutional Petition No. 447 of 2016 as a basis for releasing the machines, stating that there had been public outcry regarding the said business.
13. The court directed that the Petition be canvassed by way of written submissions. The court notes that the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 9th, 10th and 11th Respondents filed written submissions dated 1st July 2024.
DETERMINATION
14. Having considered the Petition, the responses, the Preliminary Objection and the written submissions filed by the parties, I find that the following issues arise for determination:
a) Whether the Petition is barred by the doctrine of res judicata and/or issue estoppel;
b) Whether the 8th Respondent was properly joined in these proceedings;
c) Whether the Petition meets the threshold of a constitutional petition;
d) Whether the Petitioners' rights under Articles 40 and 47 of the Constitution were violated; and
e) Whether the Petitioners are entitled to the reliefs sought.
Whether the Petition is barred by the doctrine of res judicata and/or issue estoppel
15. The Respondents argued that the issues raised by the Petitioners were judicially determined by a court of competent jurisdiction in Samwel Kahiu and 373 others v Betting Control and Licensing Board and 6 others; Association of Gaming Operators-Kenya & another (Interested Parties) [2019] eKLR. They therefore contended that the Petition is barred by the doctrine of res judicata and/or issue estoppel.
16. The Supreme Court in John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR) set out the elements that must be demonstrated for the doctrine of res judicata to apply. The Court held that:
For res judicata to be invoked in a civil matter, the following elements must be demonstrated:
a) There is a former judgment or order which was final;
b) The judgment or order was on the merits;
c) The judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and
d) There must be, between the first and the second action, identical parties, subject matter and cause of action.
17. The question is whether the Respondents have established the above elements. On whether there was a former final judgment rendered by a court of competent jurisdiction, it is clear that judgment in Samwel Kahiu and 373 others v Betting Control and Licensing Board and 6 others; Association of Gaming Operators-Kenya & another (Interested Parties) [2019] eKLR was delivered on 25th June 2019, whereas the present Petition was filed on 23rd February 2018.
18. It follows that by the time this Petition was filed, there was no final judgment on merit in the Samwel Kahiu matter capable of rendering the present Petition res judicata. The Respondents have therefore not established that the issues raised herein had already been finally determined by a court of competent jurisdiction at the time this Petition was filed.
19. On whether the two matters involve the same parties, the Respondents have not demonstrated that the Petitioners herein were parties in Samwel Kahiu and 373 others v Betting Control and Licensing Board and 6 others; Association of Gaming Operators-Kenya & another (Interested Parties) [2019] eKLR.
20. As to whether the cause of action and subject matter are similar, it is apparent that both matters relate to a crackdown on alleged illegal gambling businesses in 2018, during which gaming machines were confiscated. In Samwel Kahiu, the High Court found that the Respondents had violated the Petitioners' rights to fair administrative action and fair hearing under Articles 47 and 50 of the Constitution in the manner in which the gaming machines were confiscated.
21. However, a review of the judgment in Samwel Kahiu shows that the determination related to the 373 petitioners in that matter and to the specific machines that were the subject of that suit. The Petitioners herein were not parties to that matter.
22. I therefore find that the present Petition is not barred by the doctrine of res judicata or issue estoppel, the Respondents having failed to establish all the requisite elements.
Whether the 8th Respondent was properly joined
23. The 8th Respondent contended that it was wrongly joined in these proceedings as no reasonable cause of action had been disclosed against it. The Petitioners did not respond to this allegation. Upon perusal of the Petition, I do not find any cause of action disclosed against the 8th Respondent.
24. The 8th Respondent is the County Government of Nyamira, which neighbours Kisii County, where the cause of action is alleged to have arisen. No specific act or omission has been pleaded against the 8th Respondent. I therefore find that the 8th Respondent was wrongly joined in these proceedings and I accordingly strike out its name from the Petition.
Whether the Petition meets the threshold of a constitutional petition
25. The Respondents urged the court to find that the Petition does not set out the alleged constitutional violations with reasonable precision.
26. The principle on specificity and precision in constitutional petitions was established in Anarita Karimi Njeru v Republic (1979) KLR 154, where the court stated:
"We would however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important, if only to ensure that justice is done to his case, that he should set out with a reasonable degree of precision that of which he complains, the provision said to be infringed and the manner in which they are alleged to be infringed."
27. The Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR reaffirmed that principle and stated that a petitioner must provide sufficient particulars to enable the respondent to know the case it is required to answer.
28. The Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR also emphasized that although Article 22(1) of the Constitution gives every person the right to institute proceedings claiming that a fundamental right or freedom has been denied, violated, infringed or threatened, the party invoking the Article must show the rights said to have been infringed and the basis of the grievance. The Court underscored the need for a link between the aggrieved party, the constitutional provision alleged to have been contravened and the manifestation of the alleged contravention.
29. From the above authorities, it is clear that a constitutional petition must disclose the constitutional provisions alleged to have been violated, the manner in which they were violated, and the factual nexus between the complained-of conduct and the alleged violation.
30. In the Petition before me, the Petitioners claim that on diverse dates between June 2017 and 11th February 2018, police officers from Kisii Police Station, Gesonso Police Station and Masimba Police Station unlawfully seized and detained coin-slot machines used for betting and gaming, thereby disrupting their businesses. They further claim that they and their employees were arrested and released without any charges being preferred against them or any explanation being given for their arrest.
31. The Petitioners further aver that the police officers informed them that they had been ordered by the Minister for Interior and Co-ordination of National Government to seize the machines, which instructions they contend were unlawfully and unconstitutionally carried out. They also state that despite several visits and requests, the police officers refused to release the coin-slot machines. They contend that the Respondents' actions violated their rights under Articles 40 and 47 of the Constitution.
32. As will be seen from the analysis below, the Petitioners have not proved violation of their rights under Article 40 of the Constitution. Further, save for the 1st Petitioner, who alleges that he was arrested and released without being charged, the Petitioners have not established a factual basis upon which violation of Article 47 can be founded. The Petitioners also did not plead a specific declaration regarding the alleged violation of Article 47 arising from the arrest and release of the 1st Petitioner.
33. Parties are bound by their pleadings. The court cannot grant reliefs that have not been properly pleaded or proved. I therefore find that the Petition does not meet the threshold of a constitutional petition as set out in Anarita Karimi Njeru and the subsequent authorities cited above.
Whether the Petitioners' right to property under Article 40 was violated
34. Article 40 of the Constitution protects the right to property. The Petitioners allege that the Respondents violated this right by seizing and detaining their coin-slot machines.
35. Through the Replying Affidavit of the 11th Respondent, the Respondents admitted that the machines were seized. Their justification was that the Petitioners were allegedly running betting businesses without permits or with illegal permits, and that there was public outcry that the businesses were infringing on the rights of members of the public.
36. The Respondents submitted that the Petitioners did not prove ownership of the machines. Upon perusal of the Petition, I note that the Petitioners did not annex any ownership documents for the machines. They also did not annex any county licences or permits for the premises where the machines were allegedly operating.
37. It is trite that where there is a right, there is a remedy. However, a party alleging violation of the right to property must first establish the existence of the property right alleged to have been violated. In this case, the Petitioners have not placed before the court sufficient material to prove ownership of the machines or lawful entitlement to operate them. I therefore find that violation of Article 40 of the Constitution has not been proved.
Whether the Petitioners' right to fair administrative action under Article 47 was violated
38. The Petitioners complained that they were arrested, detained, their machines were confiscated, and they were released without being arraigned in court. This factual assertion was not substantively challenged.
39. Article 47 of the Constitution guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Where a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, that person has the right to be given written reasons for the action.
40. The 11th Respondent did not dispute the Petitioners' claim that after the coin-slot machines were confiscated, the Petitioners were never charged in court to justify the allegation that they were operating without permits or with illegal permits. The police officers are said to have acted on the Ministry's instructions, yet no due process was observed.
41. In Samwel Kahiu and 373 others v Betting Control and Licensing Board and 6 others; Association of Gaming Operators-Kenya & another (Interested Parties) [2019] eKLR, the court observed that administrative action flowing from statute must meet the constitutional test of legality, reasonableness and procedural fairness. The court held that while the State was entitled to curb illegal betting activities, the execution of such action had to conform to the Constitution, particularly Articles 47, 48 and 50. The court further held that alleged illegality in the operation of gaming machines could not justify confiscation without due process.
42. I am persuaded by that reasoning. If the Petitioners were operating betting businesses without licences or permits, the proper course was to subject them to the due process of law. The alleged illegality of the business could not, by itself, justify seizure and detention of the machines without notice, reasons or an opportunity to be heard.
43. However, the persons who allegedly ordered the arrest of the Petitioners, the confiscation of the machines and the release of the Petitioners without charge are not parties to this case. Further, the employee of the 2nd Petitioner who was allegedly arrested is not a party to these proceedings.
44. Save for the 1st Petitioner, the other Petitioners have not proved that their rights under Article 47 were violated. Their Article 47 claim is substantially anchored on the alleged confiscation of the machines, yet the Petitioners have not proved ownership or lawful entitlement to the machines, as already found under Article 40.
45. In respect of the 1st Petitioner, the facts disclose that he was arrested and released without being charged. Nevertheless, the Petitioners did not seek a specific declaration that the rights of the 1st Petitioner were violated by reason of his arrest and subsequent release without arraignment in court. Court orders do not issue in a vacuum. In the absence of a properly pleaded relief, I decline to issue such a declaration.
Whether the Petitioners are entitled to compensation
46. The Petitioners seek compensation for loss and damage allegedly suffered as a result of the Respondents' actions.
47. It is trite law that special damages must be specifically pleaded and strictly proved. The Petitioners alleged loss of profits ranging between Kshs. 3,000 and Kshs. 9,000 per day. However, they did not tender documentary or other cogent evidence to prove those specific claims.
48. Having found that the Petitioners have not proved violation of Article 40 of the Constitution, and having further found that the Petition does not meet the threshold of a constitutional petition, I find that the claim for compensation has not been proved.
CONCLUSION
49. In the final analysis, I find as follows:
a) The Petition is not barred by the doctrine of res judicata or issue estoppel;
b) The 8th Respondent was wrongly joined in these proceedings and is hereby struck out from the Petition;
c) The Petitioners have not proved violation of their rights under Article 40 of the Constitution;
d) The Petition does not meet the threshold of a constitutional petition; and
e) The Petitioners are not entitled to the reliefs sought.
50. Consequently, the Petition is devoid of merit and is hereby dismissed.
51. Each party shall bear its own costs.
52. It is so ordered.
T.A. ODERA
JUDGE
25.2.25
Delivered virtually in the presence of:
Miss Opiyo for the Respondents
Court Assistant: Oigo
INTRODUCTION
1. The Petitioners filed a Petition dated 23rd February 2018 seeking the following reliefs:
a) A declaration that the Respondents violated, infringed and/or threatened the Petitioners' fundamental rights under the Bill of Rights by seizing and detaining the Petitioners' coin-slot machines;
b) An order for compensation for the loss and damage allegedly suffered by the Petitioners arising from the unlawful and illegal acts of the Respondents; and
c) Costs and interest.
2. The Petitioners' case is that on diverse dates between June 2017 and 11th February 2018, police officers from Kisii Police Station, Gesonso Police Station and Masimba Police Station unlawfully and without notice seized and detained coin-slot machines used for betting and gaming. They averred that the seizure was done without sufficient or reasonable cause and that it completely disrupted their business.
3. The Petitioners further averred that during the seizure and detention of the coin-slot machines, some of their employees were arrested. In particular, the 1st Petitioner stated that he was arrested on 12th February 2018 at about 7.30 p.m. and released at midnight on the same day, without any charge being preferred against him and without any explanation for his arrest. The Petitioners also stated that an employee of the 2nd Petitioner was arrested on 29th January 2018 and released on the same day.
4. The Petitioners complained that despite the arrests and seizure of the machines, no charges have ever been preferred against them or their employees. They stated that they have never been served with any notice to attend court and have never been notified of any offence allegedly committed to justify the detention of the coin-slot machines.
5. It was also the Petitioners' case that when the machines were seized, the police officers stated that they had been ordered by the Minister for Interior and Co-ordination of National Government to seize them. The Petitioners contended that the said instructions were unlawfully and unconstitutionally carried out. They further averred that the machines were seized together with the money inside them.
6. The Petitioners stated that despite making several visits and requests to the police stations, the police officers refused to release the coin-slot machines. They contended that the Respondents' actions caused them irreparable loss and severe consequential loss, as they were arbitrarily deprived of the use of the said machines. They therefore pleaded that the Respondents' actions violated their rights under Articles 40 and 47 of the Constitution.
RESPONSES
7. The Attorney General filed Grounds of Opposition dated 5th May 2022, contending that:
a) The Petition does not specifically set out how the Respondents violated the Petitioners' constitutional rights as required by the decision in Anarita Karimi Njeru v Republic (1979) eKLR;
b) The issues raised in the Petition were judicially determined by a court of competent jurisdiction in Samwel Kahiu and 373 others v Betting Control and Licensing Board and 6 others; Association of Gaming Operators-Kenya & another (Interested Parties) [2019] eKLR, and the Petition is therefore barred by the doctrine of res judicata and/or issue estoppel;
c) The Petition does not disclose any acts of omission or commission by the Respondents in the performance of their constitutional and statutory duties under Articles 243 and 244 of the Constitution, the National Police Service Act, 2011 and the National Government Co-ordination Act, 2013;
d) The Petitioners have not come to court with clean hands and cannot seek to enjoy equitable reliefs;
e) The reliefs sought against the Respondents are misconceived, untenable and unsupported by factual evidence or law; and
f) The Petition lacks merit and amounts to an abuse of the court process.
8. The 8th Respondent, the County Government of Nyamira, filed a Preliminary Objection on the ground that it had been wrongly joined in the suit, as no reasonable cause of action had been disclosed against it. It urged the court to dismiss the claim against it with costs.
9. The 11th Respondent, the County Commissioner, Kisii, Godfrey Kegochi, filed a Replying Affidavit dated 4th May 2018. He deposed that the police in Kisii and in Kenya generally had been ordered by the Cabinet Secretary for Interior and Co-ordination of National Government to close all betting businesses operating without licences, without permits, or with illegal permits. He stated that in compliance with the said order, the Petitioners' businesses were closed and the machines confiscated.
10. The 11th Respondent contended that the Petitioners ought to have sued the Principal Secretary for Interior and not him personally. He further averred that the Petitioners did not attach any licences to the Petition, which, in his view, demonstrated that they were operating illegal businesses.
11. The 11th Respondent also averred that the Petitioners had been operating their businesses in hidden places, including rural areas, contrary to the provisions of the Betting, Lotteries and Gaming Act. He stated that the Petitioners' businesses had caused more harm than good to society and that the Petitioners had allowed children to participate in lotto and betting activities, thereby necessitating the immediate closure of their businesses.
12. The 11th Respondent denied that the Petitioners' rights had been infringed. He contended instead that it was the Petitioners' businesses that were infringing on the rights of members of the public. He further claimed that the confiscated machines had not been legally imported into the country. He urged the court not to rely on Nairobi High Court Constitutional Petition No. 447 of 2016 as a basis for releasing the machines, stating that there had been public outcry regarding the said business.
13. The court directed that the Petition be canvassed by way of written submissions. The court notes that the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 9th, 10th and 11th Respondents filed written submissions dated 1st July 2024.
DETERMINATION
14. Having considered the Petition, the responses, the Preliminary Objection and the written submissions filed by the parties, I find that the following issues arise for determination:
a) Whether the Petition is barred by the doctrine of res judicata and/or issue estoppel;
b) Whether the 8th Respondent was properly joined in these proceedings;
c) Whether the Petition meets the threshold of a constitutional petition;
d) Whether the Petitioners' rights under Articles 40 and 47 of the Constitution were violated; and
e) Whether the Petitioners are entitled to the reliefs sought.
Whether the Petition is barred by the doctrine of res judicata and/or issue estoppel
15. The Respondents argued that the issues raised by the Petitioners were judicially determined by a court of competent jurisdiction in Samwel Kahiu and 373 others v Betting Control and Licensing Board and 6 others; Association of Gaming Operators-Kenya & another (Interested Parties) [2019] eKLR. They therefore contended that the Petition is barred by the doctrine of res judicata and/or issue estoppel.
16. The Supreme Court in John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR) set out the elements that must be demonstrated for the doctrine of res judicata to apply. The Court held that:
For res judicata to be invoked in a civil matter, the following elements must be demonstrated:
a) There is a former judgment or order which was final;
b) The judgment or order was on the merits;
c) The judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and
d) There must be, between the first and the second action, identical parties, subject matter and cause of action.
17. The question is whether the Respondents have established the above elements. On whether there was a former final judgment rendered by a court of competent jurisdiction, it is clear that judgment in Samwel Kahiu and 373 others v Betting Control and Licensing Board and 6 others; Association of Gaming Operators-Kenya & another (Interested Parties) [2019] eKLR was delivered on 25th June 2019, whereas the present Petition was filed on 23rd February 2018.
18. It follows that by the time this Petition was filed, there was no final judgment on merit in the Samwel Kahiu matter capable of rendering the present Petition res judicata. The Respondents have therefore not established that the issues raised herein had already been finally determined by a court of competent jurisdiction at the time this Petition was filed.
19. On whether the two matters involve the same parties, the Respondents have not demonstrated that the Petitioners herein were parties in Samwel Kahiu and 373 others v Betting Control and Licensing Board and 6 others; Association of Gaming Operators-Kenya & another (Interested Parties) [2019] eKLR.
20. As to whether the cause of action and subject matter are similar, it is apparent that both matters relate to a crackdown on alleged illegal gambling businesses in 2018, during which gaming machines were confiscated. In Samwel Kahiu, the High Court found that the Respondents had violated the Petitioners' rights to fair administrative action and fair hearing under Articles 47 and 50 of the Constitution in the manner in which the gaming machines were confiscated.
21. However, a review of the judgment in Samwel Kahiu shows that the determination related to the 373 petitioners in that matter and to the specific machines that were the subject of that suit. The Petitioners herein were not parties to that matter.
22. I therefore find that the present Petition is not barred by the doctrine of res judicata or issue estoppel, the Respondents having failed to establish all the requisite elements.
Whether the 8th Respondent was properly joined
23. The 8th Respondent contended that it was wrongly joined in these proceedings as no reasonable cause of action had been disclosed against it. The Petitioners did not respond to this allegation. Upon perusal of the Petition, I do not find any cause of action disclosed against the 8th Respondent.
24. The 8th Respondent is the County Government of Nyamira, which neighbours Kisii County, where the cause of action is alleged to have arisen. No specific act or omission has been pleaded against the 8th Respondent. I therefore find that the 8th Respondent was wrongly joined in these proceedings and I accordingly strike out its name from the Petition.
Whether the Petition meets the threshold of a constitutional petition
25. The Respondents urged the court to find that the Petition does not set out the alleged constitutional violations with reasonable precision.
26. The principle on specificity and precision in constitutional petitions was established in Anarita Karimi Njeru v Republic (1979) KLR 154, where the court stated:
"We would however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important, if only to ensure that justice is done to his case, that he should set out with a reasonable degree of precision that of which he complains, the provision said to be infringed and the manner in which they are alleged to be infringed."
27. The Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR reaffirmed that principle and stated that a petitioner must provide sufficient particulars to enable the respondent to know the case it is required to answer.
28. The Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR also emphasized that although Article 22(1) of the Constitution gives every person the right to institute proceedings claiming that a fundamental right or freedom has been denied, violated, infringed or threatened, the party invoking the Article must show the rights said to have been infringed and the basis of the grievance. The Court underscored the need for a link between the aggrieved party, the constitutional provision alleged to have been contravened and the manifestation of the alleged contravention.
29. From the above authorities, it is clear that a constitutional petition must disclose the constitutional provisions alleged to have been violated, the manner in which they were violated, and the factual nexus between the complained-of conduct and the alleged violation.
30. In the Petition before me, the Petitioners claim that on diverse dates between June 2017 and 11th February 2018, police officers from Kisii Police Station, Gesonso Police Station and Masimba Police Station unlawfully seized and detained coin-slot machines used for betting and gaming, thereby disrupting their businesses. They further claim that they and their employees were arrested and released without any charges being preferred against them or any explanation being given for their arrest.
31. The Petitioners further aver that the police officers informed them that they had been ordered by the Minister for Interior and Co-ordination of National Government to seize the machines, which instructions they contend were unlawfully and unconstitutionally carried out. They also state that despite several visits and requests, the police officers refused to release the coin-slot machines. They contend that the Respondents' actions violated their rights under Articles 40 and 47 of the Constitution.
32. As will be seen from the analysis below, the Petitioners have not proved violation of their rights under Article 40 of the Constitution. Further, save for the 1st Petitioner, who alleges that he was arrested and released without being charged, the Petitioners have not established a factual basis upon which violation of Article 47 can be founded. The Petitioners also did not plead a specific declaration regarding the alleged violation of Article 47 arising from the arrest and release of the 1st Petitioner.
33. Parties are bound by their pleadings. The court cannot grant reliefs that have not been properly pleaded or proved. I therefore find that the Petition does not meet the threshold of a constitutional petition as set out in Anarita Karimi Njeru and the subsequent authorities cited above.
Whether the Petitioners' right to property under Article 40 was violated
34. Article 40 of the Constitution protects the right to property. The Petitioners allege that the Respondents violated this right by seizing and detaining their coin-slot machines.
35. Through the Replying Affidavit of the 11th Respondent, the Respondents admitted that the machines were seized. Their justification was that the Petitioners were allegedly running betting businesses without permits or with illegal permits, and that there was public outcry that the businesses were infringing on the rights of members of the public.
36. The Respondents submitted that the Petitioners did not prove ownership of the machines. Upon perusal of the Petition, I note that the Petitioners did not annex any ownership documents for the machines. They also did not annex any county licences or permits for the premises where the machines were allegedly operating.
37. It is trite that where there is a right, there is a remedy. However, a party alleging violation of the right to property must first establish the existence of the property right alleged to have been violated. In this case, the Petitioners have not placed before the court sufficient material to prove ownership of the machines or lawful entitlement to operate them. I therefore find that violation of Article 40 of the Constitution has not been proved.
Whether the Petitioners' right to fair administrative action under Article 47 was violated
38. The Petitioners complained that they were arrested, detained, their machines were confiscated, and they were released without being arraigned in court. This factual assertion was not substantively challenged.
39. Article 47 of the Constitution guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Where a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, that person has the right to be given written reasons for the action.
40. The 11th Respondent did not dispute the Petitioners' claim that after the coin-slot machines were confiscated, the Petitioners were never charged in court to justify the allegation that they were operating without permits or with illegal permits. The police officers are said to have acted on the Ministry's instructions, yet no due process was observed.
41. In Samwel Kahiu and 373 others v Betting Control and Licensing Board and 6 others; Association of Gaming Operators-Kenya & another (Interested Parties) [2019] eKLR, the court observed that administrative action flowing from statute must meet the constitutional test of legality, reasonableness and procedural fairness. The court held that while the State was entitled to curb illegal betting activities, the execution of such action had to conform to the Constitution, particularly Articles 47, 48 and 50. The court further held that alleged illegality in the operation of gaming machines could not justify confiscation without due process.
42. I am persuaded by that reasoning. If the Petitioners were operating betting businesses without licences or permits, the proper course was to subject them to the due process of law. The alleged illegality of the business could not, by itself, justify seizure and detention of the machines without notice, reasons or an opportunity to be heard.
43. However, the persons who allegedly ordered the arrest of the Petitioners, the confiscation of the machines and the release of the Petitioners without charge are not parties to this case. Further, the employee of the 2nd Petitioner who was allegedly arrested is not a party to these proceedings.
44. Save for the 1st Petitioner, the other Petitioners have not proved that their rights under Article 47 were violated. Their Article 47 claim is substantially anchored on the alleged confiscation of the machines, yet the Petitioners have not proved ownership or lawful entitlement to the machines, as already found under Article 40.
45. In respect of the 1st Petitioner, the facts disclose that he was arrested and released without being charged. Nevertheless, the Petitioners did not seek a specific declaration that the rights of the 1st Petitioner were violated by reason of his arrest and subsequent release without arraignment in court. Court orders do not issue in a vacuum. In the absence of a properly pleaded relief, I decline to issue such a declaration.
Whether the Petitioners are entitled to compensation
46. The Petitioners seek compensation for loss and damage allegedly suffered as a result of the Respondents' actions.
47. It is trite law that special damages must be specifically pleaded and strictly proved. The Petitioners alleged loss of profits ranging between Kshs. 3,000 and Kshs. 9,000 per day. However, they did not tender documentary or other cogent evidence to prove those specific claims.
48. Having found that the Petitioners have not proved violation of Article 40 of the Constitution, and having further found that the Petition does not meet the threshold of a constitutional petition, I find that the claim for compensation has not been proved.
CONCLUSION
49. In the final analysis, I find as follows:
a) The Petition is not barred by the doctrine of res judicata or issue estoppel;
b) The 8th Respondent was wrongly joined in these proceedings and is hereby struck out from the Petition;
c) The Petitioners have not proved violation of their rights under Article 40 of the Constitution;
d) The Petition does not meet the threshold of a constitutional petition; and
e) The Petitioners are not entitled to the reliefs sought.
50. Consequently, the Petition is devoid of merit and is hereby dismissed.
51. Each party shall bear its own costs.
52. It is so ordered.
T.A. ODERA
JUDGE
25.2.25
Delivered virtually in the presence of:
Miss Opiyo for the Respondents
Court Assistant: Oigo