Introduction
1. By a Petition dated and filed on 13th December 2024, the Petitioner, the Car Importers Association of Kenya (“CIAK” or “the Petitioner”), invokes the jurisdiction of this Court under Articles 1, 10, 20, 28, 40, 43 and 47 of the Constitution of Kenya, 2010, together with the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, challenging an undated notice issued by the Respondent, the National Transport and Safety Authority (“NTSA” or “the Respondent”), titled “Public Notice on Unregistered Vehicles by Motor Vehicle Dealers” (“the impugned Notice”).
2. The Petition is supported by the affidavit of Peter Otieno, sworn on 13th December 2024, who describes himself as the National Chairman of the Petitioner and as being duly authorised, by a resolution of the Petitioner's members dated 4th December 2024, to swear the affidavit and to represent the Petitioner in these proceedings. The Petition was accompanied by a Notice of Motion of even date seeking interim conservatory/injunctive orders pending the hearing and determination of the Petition, supported by a further affidavit of Mr Otieno in substantially similar terms.
3. The Respondent opposed both the Petition and the application by a Replying Affidavit sworn on 12th February 2025 by Collins Kipkorir Kieng, who describes himself as the Manager in charge of Registration at the Respondent and as duly authorised to swear the affidavit on the Respondent's behalf.
Parties
4. The Petitioner is a society registered under the Societies Act (Certificate of Registration No. 38267), representing car importers and dealers in Kenya. It pleads that it represents seventy-three (73) members (though the list annexed to the supporting affidavit as “PO-2” appears to enumerate seventy-five (75) entries), being owners of motor vehicle showrooms spread across the country, and that one of its objects is to promote and protect the legitimate trade of car importation.
5. The Respondent is a statutory body established under the National Transport and Safety Authority Act, No. 33 of 2012, charged, among other things, with the registration, licensing and inspection of motor vehicles for use on Kenyan roads, and with the licensing and regulation of motor vehicle and motorcycle dealers pursuant to sections 23(1) and 24(c) of the Traffic Act (Cap. 403).
Petitioner's case
6. The Petitioner's case, as pleaded in the Petition and elaborated in the supporting affidavit, may be summarised as follows.
7. The Petitioner's members are engaged in the business of importing second-hand motor vehicles, principally from Japan and Dubai, which are cleared through the Port of Mombasa and thereafter sold to clients across Kenya from showrooms owned by the members. The importation, clearance and registration of such vehicles is stated to involve three Government agencies acting in tandem, namely the Kenya Revenue Authority (“KRA”), which assesses and collects duty; the Kenya Bureau of Standards (“KBS”), which certifies compliance with quality standards; and the Respondent, which registers the vehicles and issues logbooks and number plates.
8. The Petitioner avers that, over a lengthy period, the Respondent and the other relevant agencies permitted its members to clear imported vehicles, pay all applicable duty, and remove such vehicles from the customs areas (the Kenya Ports Authority and Container Freight Stations) into their showrooms without prior registration, on the footing that registration and issuance of logbooks and number plates would occur only upon the sale of a given unit to an eventual buyer. The Petitioner contends that no vehicle could lawfully have exited a customs area without the sanction of all the relevant agencies, including the Respondent, and that this practice was accordingly undertaken with the Respondent's knowledge and approval.
9. The commercial rationale advanced for this arrangement is that a vehicle imported and registered immediately upon clearance will, by the time it is sold, said to average some six months later, bear a number plate on a series that a prospective buyer will perceive as comparatively old, prejudicing its resale value irrespective of its true condition or mileage. In support of this contention, the Petitioner annexes a valuation report by Strategic Automobile Valuers and Loss Assessors Limited said to demonstrate depreciation attributable to vehicles remaining registered but unsold over an extended period.
10. The Petitioner further contends that franchise dealers of new motor vehicles (naming, by way of example, DT Dobbie and CMC Motors) are permitted by the same regulatory agencies to import and hold their stock without payment of duty or registration until the point of sale, and that the Respondent's insistence on upfront registration of used vehicles, while affording new-vehicle franchise dealers the latitude to register only at the point of sale, amounts to differential and, in the Petitioner's characterisation, discriminatory treatment as between the two classes of dealer.
11. On or about 7th December 2024, the Petitioner became aware of the impugned Notice on the Respondent's website. The Notice recites that it is issued pursuant to sections 23(1) and 24(c) of the Traffic Act, and that a multi-agency revalidation exercise (comprising the Respondent, KRA, the Financial Reporting Centre, the Directorate of Immigration Services and unspecified security agencies) had established that several motor vehicle dealers were holding unregistered vehicles within their showrooms and yards, contrary to the Traffic Act. The Notice directed all motor vehicle dealers to complete pending registration applications by Monday, 16th December 2024, failing which law enforcement agencies were advised to impound vehicles operating without registration plates or using Kenya Dealer (“KD”) plates unlawfully, and to charge the dealers and owners concerned.
12. Alarmed by the Notice, the Petitioner convened a meeting with representatives of the Respondent on 10th December 2024 at Al Waris Restaurant, Kizingo, Mombasa, attended by, among others, the Respondent's Deputy Director General, Mr Cosmas Ngeso (said to have represented the Director General), the Coast Regional Manager, Ms Carolyne Naisiaye, and the Assistant Coast Regional Manager, Mr John Parteroi. The Petitioner states that it was advised at that meeting to reduce its concerns to writing, and did so by a memorandum dated 10th December 2024 addressed to the Respondent's Director General, in which it, among other things: (a) disputed the practical adequacy of the compliance window, given weekends and the intervening public holiday; (b) proposed an extension of three months within which to complete registration; (c) proposed, in the alternative, an official per-vehicle release fee graduated by engine capacity, ranging from Kshs. 2,000 to Kshs. 5,000; and (d) requested the discontinuation of a stated Kshs. 750 charge for a service (identified in the memorandum as “FRID”) said no longer to be rendered.
13. The Petitioner pleads that, as at the date of the Petition, the Respondent had not formally responded to the memorandum, and that it apprehended that, with effect from 16th December 2024, its members' unregistered vehicles would be impounded and its members charged in criminal proceedings for dealing in unregistered motor vehicles. (ii) The Petitioner's written submissions
14. In its written submissions, the Petitioner elaborates on, and in some respects supplements, its pleaded case.
15. The Petitioner draws attention to the Traffic Act (Registration Plate) Rules, contained in Legal Notice No. 62 of 2016, which it submits distinguish two classes of dealer: under Rule 13A, dealers in used motor vehicles are issued with a dealer's registration plate bearing the prefix “KD”, enabling them to move such vehicles, in particular from customs areas to their showrooms or warehouses; and under Rule 13, dealers in new motor vehicles are issued with a dealer's registration plate bearing the prefix “KG” for the equivalent purpose. The Petitioner submits that the material difference lies not in the availability of a dealer plate as such — both classes have one — but in the point at which full duty must be settled: used-vehicle dealers, it submits, must settle the full revenue payable before their vehicles may be moved to their showrooms, whereas new-vehicle franchise dealers may remove their vehicles to their showrooms and settle duty only upon effecting a sale.
16. Relying on section 60 of the Evidence Act (Cap. 80), the Petitioner invites the Court to take judicial notice that a second-hand motor vehicle cannot exit a Container Freight Station without the sanction of KRA, KBS and the Respondent, and submits that it is not now open to the Respondent to treat its own prior sanction of the practice as having been of no legal consequence. For this proposition the Petitioner invokes section 120 of the Evidence Act and the doctrine of estoppel, citing Pickard v Sears (1837) 112 ER 179, John Mburu v Consolidated Bank of Kenya Limited [2015] eKLR, and Carol Construction Engineers Limited & another v National Bank of Kenya, Nakuru HCCS No. 20 of 2020, [2020] eKLR, for the proposition that a party who by words or conduct causes another to believe in a particular state of affairs, and to act on that belief, will not be permitted to resile from it to that other's detriment. It also relies on Stanley Munga Githunguri v Republic [1986] eKLR, a decision of a three-judge bench of the former High Court, for the proposition that an assurance given by a public office, once relied upon, ought ordinarily to be honoured absent fresh circumstances justifying departure from it, as an incident of the accountability and transparency values now reflected in Articles 10 and 47 of the Constitution.
17. As to the question of a hearing, the Petitioner submits that the compliance window afforded by the impugned Notice — some seven days, spanning an intervening weekend and public holiday — did not accord its members any real opportunity to be heard before the adverse decision to threaten impoundment and prosecution was taken. It relies on the observations of Lord Denning MR in Kanda v Government of Malaya [1962] AC 322, of Nyarangi JA in Nyongesa & 4 others v Egerton University College [1990] eKLR, and on Martin Nyaga Wambora & 4 others v Speaker of the Senate & 6 others, as cited in County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others [2015] eKLR, for the proposition that a fair hearing encompasses the affording of sufficient time to respond.
18. Regarding discrimination, the Petitioner relies on Car Importers Association of Kenya v Kenya Revenue Authority & 3 others, HCCHR Petition No. 190 of 2018, [2019] eKLR, in which this Court (Ogolla J) found, in a different context concerning the valuation of imported motor vehicles for customs purposes, that the Kenya Revenue Authority had acted unfairly and inconsistently as against members of the Petitioner association. The Petitioner submits that the present differential treatment as between used-vehicle and new-vehicle dealers is of the same character, and adds that the consequences of impoundment and prosecution would fall with particular severity on its members' livelihoods, many of whom it describes as being of Pakistani nationality.
19. The Petitioner submits, finally, that the Respondent's failure to respond to its memorandum of 10th December 2024, before proceeding to threaten enforcement, is itself indicative of a want of good faith, and asks the Court to allow the Petition as prayed.
The constitutional and legal grounds pleaded
20. The Petitioner particularises the alleged violations substantially as follows:
21. Legitimate expectation and estoppel – that by permitting the release of vehicles from customs areas without prior registration over a lengthy period, on payment of the applicable revenue, the Respondent (jointly with KRA and KBS) created a reasonable and legitimate expectation that the Petitioner's members were at liberty to trade in and hold such vehicles and to register them only upon securing a buyer; and that, by section 120 of the Evidence Act (Cap. 80) and the doctrine of estoppel by representation, the Respondent cannot now resile from that representation to the detriment of the Petitioner's members;
22. Article 10 and Article 47 – that the Respondent's issuance of the impugned Notice, without engaging the Petitioner or its members in any form of public participation, and without prior notice reasonably sufficient to permit compliance, offends the national values of accountability specified in Article 10(2)(c) and the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair under Article 47;
23. Articles 40 and 43 – that the threatened impounding of the vehicles, and the associated threat of criminal prosecution, would deprive the Petitioner's members of the use and enjoyment of their property and imperil their means of livelihood and that of their employees, contrary to the right to property under Article 40 and the economic dimension of the rights protected under Article 43;
24. Article 28 – that the differential treatment of used-vehicle dealers as against new-vehicle franchise dealers, in the respects pleaded at paragraph 6 above, is discriminatory and an affront to the guarantee of dignity under Article 28, read together with the equality and non-discrimination guarantee under Article 27.
Reliefs sought
25. The Petitioner prays for the following orders:
(a) A declaration that the Respondent's undated notice titled “Public Notice on Unregistered Vehicles by Motor Vehicle Dealers” violates the Petitioner's fundamental rights under Articles 10, 28, 40, 43 and 47 of the Constitution;
(b) An order declaring the said Notice null and void for all purposes;
(c) An order restraining the Respondent from interfering with any of the imported motor vehicles lying in any of the Petitioner's members' showrooms on the ground only of non-registration of the same; and
(d) Any other order that the Court may deem just.
Respondent's case
26. The Respondent's case, as set out in the Replying Affidavit of Collins Kipkorir Kieng, may be summarised as follows.
27. The Respondent confirms that it is a State Corporation established under the National Transport and Safety Authority Act, No. 33 of 2012, mandated, among other things, to plan, manage and regulate the road transport system and to implement policies relating to road transport and safety, and that its functions include the registration of motor vehicles, motor vehicle inspection and certification, regulation of public service vehicles, and the development and implementation of road safety strategies.
28. The Respondent's central legal position is that its conduct in requiring registration of the Petitioner's members' vehicles is not a matter of administrative discretion capable of being displaced by an alleged prior practice, but the exercise of a statutory duty. In this regard, the Respondent relies on section 6(1) of the Traffic Act (Cap. 403), which it states provides that no person shall possess a motor vehicle or trailer, other than a vehicle exempted from that Part of the Act, unless the vehicle is registered under the Act, and on section 6(1A), which it states provides that no motor vehicle imported for home use shall be used on a road unless it is registered.
29. On the comparator advanced by the Petitioner as between used-vehicle dealers and other categories of importer, the Respondent's answer, as deposed to, is directed to locally-assembled motor vehicles: it avers that assemblers import component parts, which are not vehicles in the completed sense, and that such persons apply for registration only once assembly is complete, the assembled units remaining in their garages and off the road until registered. The Respondent does not, in the Replying Affidavit, specifically address the Petitioner's distinct example of new-vehicle franchise dealers (such as DT Dobbie and CMC Motors) said to hold completed, imported new vehicles without registration pending sale.
30. The Respondent further avers that an unknown number of unregistered vehicles in the country poses a significant security risk, though no further particulars of this averment are given.
31. As far as the application for interim injunctive relief is concerned, the Respondent avers, on the advice of its advocate which the deponent states he verily believes to be true, that the Petitioner has not demonstrated the three conditions ordinarily required before an interlocutory injunction may issue.
32. As for the substantive Petition, the Respondent avers, again on advice: (a) that the Petitioner has not demonstrated how the alleged discrimination arises; (b) that, applying the principle in Anarita Karimi Njeru v Republic [1979] eKLR, the Petitioner has not pleaded with the requisite precision the specific constitutional provisions said to have been violated and the manner of their violation; and (c) that the Petitioner has not discharged the burden of proving a clear and unambiguous threat of, or actual, violation of the Constitution sufficient to warrant the orders sought.
Respondent's written submissions
33. In its written submissions, filed after those of the Petitioner, the Respondent for the first time squarely engages with the Petitioner's principal comparator, namely new-vehicle franchise dealers, doing so by reference to the East African Community Customs Management Act, 2004 (“EACCMA”). The Respondent submits that franchise owners of new motor vehicles import under the warehousing, re-warehousing or removal-to-another-warehouse regime provided for in section 34 of the EACCMA, whereas the Petitioner's members import used motor vehicles under the home consumption regime provided for in section 50(1) of the EACCMA, and that it is this difference in the applicable customs regime, and not any impermissible ground, that accounts for the difference in the point at which duty falls due and, correspondingly, the point at which registration may practically follow.
34. The Respondent submits, citing the definition of discrimination in Black's Law Dictionary (10th edn) and the three-stage inquiry commended in Mbona v Shepstone and Wylie [2015] ZACC 11 — namely, whether the impugned measure differentiates between persons, whether that differentiation amounts to discrimination, and, if so, whether the discrimination is unfair — that the Petitioner has not shown the differentiation to be founded on any of the grounds ordinarily recognised as prohibited (race, age, sex, nationality, religion or similar hardship-based classifications), and has, in any event, not demonstrated that a differentiation between two lawfully distinct customs regimes is irrational or unfair.
35. Applying Anarita Karimi Njeru v Republic, the Respondent maintains that the Petitioner has not demonstrated, with the requisite precision, the manner and extent to which each of the pleaded Articles has been violated. The Respondent further submits that the impugned Notice was not issued “out of the blue” but was a courteous reminder of an existing statutory obligation which the Respondent was, in any event, entitled to enforce directly without prior notice; that the Petition is animated by the Petitioner's own commercial interest in avoiding registration-related depreciation rather than any true constitutional grievance; and that the franchise dealers, whose treatment forms the comparator on which the discrimination claim depends, ought to have been joined as parties, since any order made in their absence would unfairly affect their interests.
36. The Respondent also submits that a materially similar petition, Car and Importers Association v Kenya Revenue Authority and National Transport and Safety Authority, Mombasa High Court Petition No. E035 of 2021, raising similar issues, was dismissed; that the Petitioner did not appeal that decision; and that the present Petition, framed by omitting the Kenya Revenue Authority as a party, is in substance a re-agitation of the same grievance and an abuse of the process of the Court.
37. On the foregoing basis, the Respondent urges the Court to find the Petition baseless, misconceived and devoid of merit, and to dismiss it with costs.
38. Issues for determination
39. Arising from the pleadings, the affidavit evidence and the submissions now on record, the following issues fall for determination:
(a) whether the Petitioner has locus standi to institute and maintain this Petition on behalf of its members;
(b) whether the Petition meets the threshold of precision in pleading constitutional violations required by Anarita Karimi Njeru v Republic;
(c) whether the present Petition is barred, in whole or in part, as an abuse of the process of the Court by reason of the earlier decision in Mombasa High Court Petition No. E035 of 2021;
(d) whether the Respondent's earlier practice of permitting release of imported used motor vehicles from customs areas without prior registration is capable, consistently with sections 6(1) and 6(1A) of the Traffic Act, of founding a legitimate expectation or estoppel binding on the Respondent, and, if so, of what content and effect;
(e) whether the manner and timeline of the issuance and intended enforcement of the impugned Notice complied with the requirements of fair administrative action under Article 47 of the Constitution and the Fair Administrative Action Act, 2015;
(f) whether the differential treatment of used-vehicle dealers as against new-vehicle franchise dealers discloses unlawful discrimination contrary to Articles 27 and 28 of the Constitution, having regard, in particular, to the customs regimes said by the Respondent to govern each category;
(g) whether the threatened impoundment of vehicles and prosecution of the Petitioner's members would, independently of issue (e), violate Articles 40 and 43 of the Constitution; and
(h) what reliefs, if any, the Petitioner is entitled to, and on what terms as to costs.
Analaysis
(i) Locus standi
40. The Respondent does not, in either the Replying Affidavit or its written submissions, take issue with the Petitioner's standing to bring this Petition on behalf of its members. Given the Petitioner's registration as a society, the authority of its members to Mr Otieno to swear the affidavit and represent the Petitioner, and Article 22(2) of the Constitution, which permits a person to institute proceedings on behalf of a group or class of persons and an association acting in the interest of its members, I am satisfied that the Petitioner has the requisite standing.
(ii) Precision of pleading — the Anarita Karimi Njeru threshold
41. The Respondent's reliance on Anarita Karimi Njeru v Republic requires consideration at the threshold, since if well founded it would dispose of the constitutional claims without recourse to their merits. The rule in that case, as since refined in later authority, requires a party alleging violation of the Constitution to set out with reasonable precision the provision said to be infringed and the manner of its infringement, so as to enable the respondent to know the case it has to meet. The Petition here identifies specific articles (10, 28, 40, 43 and 47) and, at paragraphs 17 to 19 of the affidavit in support, links each to a discrete factual complaint — want of public participation and reliance on a representation later resiled from (Articles 10 and 47), differential treatment as against franchise dealers (Article 28, read with Article 27), and the threat to property and livelihood from impoundment and prosecution (Articles 40 and 43). This connects each article to a specific factual foundation rather than pleading violation of the Constitution in the abstract. Whether that connection is ultimately made out on the merits is a different question from whether it is pleaded with sufficient precision to pass the Anarita Karimi Njeru threshold, and I decline to conflate the two. I find that the Petition meets the required threshold and I decline to dismiss it on this preliminary ground.
(iii) The alleged prior petition — Mombasa High Court Petition No. E035 of 2021
42. I deal next, out of the order in which it arises in the Respondent's submissions, with the contention that this Petition is barred as an abuse of the process of the Court by reason of the decision in Mombasa High Court Petition No. E035 of 2021. This objection was raised for the first time in the Respondent's written submissions. No copy — certified or otherwise — of the pleadings, judgment or order said to have disposed of that petition has been placed before the Court, whether by affidavit evidence or annexure, and neither the parties, the issues framed, nor the basis of dismissal in that matter have been particularised beyond the bare assertion that “similar issues” were raised and “the same was dismissed”. Submissions of counsel, however persuasively advanced, are not a substitute for evidence, and a plea of res judicata or abuse of process requires the party raising it to place before the Court sufficient material to enable it to test whether the parties, subject matter and issues in the two proceedings are indeed the same. On the record as it stands, I am unable to make any finding as to the existence, content or effect of the decision relied upon, and I decline to uphold this objection. This is without prejudice to the Respondent's ability to plead and establish such a defence, with appropriate evidentiary support, in an appropriate case.
(iv) Legitimate expectation and estoppel
43. The Respondent's answer to the legitimate expectation and estoppel case is, in substance, that the registration of motor vehicles is not a matter of administrative grace but a statutory duty imposed by section 6(1) of the Traffic Act, reinforced by section 6(1A) in respect of vehicles imported for home use, and that no representation, however consistently made or relied upon, can estop a public body from performing a duty imposed on it by statute. That is a sound statement of the law. It is well established, both at common law and in this jurisdiction, that estoppel cannot be raised so as to relieve a public body of a duty imposed on it by statute, or to invest it with a power it does not in law possess: see, generally, Southend-on-Sea Corporation v Hodgson (Wickford) Ltd [1962] 1 QB 416. Sections 6(1) and 6(1A) of the Traffic Act are framed in mandatory terms (“no person shall possess… unless… registered”; “no motor vehicle… shall be used on a road unless… registered”), and no representation by an officer of the Respondent, however made, could have had the legal effect of permanently exempting the Petitioner's members from that duty.
44. The authorities on which the Petitioner relies do not, on examination, assist it to the contrary. Stanley Munga Githunguri v Republic concerned the exercise of the Attorney-General's discretionary power under the former section 26(3) of the Constitution to institute or decline to institute criminal proceedings — a discretionary power, the exercise of which the Court held could, in the circumstances of that case, give rise to a legitimate expectation binding the office. It did not concern, and does not assist in the analysis of, a mandatory statutory duty of the kind imposed by section 6(1) and 6(1A) of the Traffic Act. John Mburu v Consolidated Bank of Kenya Limited and Carol Construction Engineers Limited & another v National Bank of Kenya were, in turn, private commercial disputes between a bank and its customers, decided on ordinary principles of estoppel in pais as between private parties; indeed, in Mburu, the doctrine was applied against, rather than in favour of, the party seeking to reopen a settled account. More fundamentally, each of those authorities, faithfully applying Moorgate Mercantile Co Ltd v Twitchings [1976] 1 QB 225 and Pickard v Sears, confirms that equitable estoppel “is not a cause of action” and operates only to preclude a party from asserting something inconsistent with an earlier representation; it does not, in itself, create a substantive entitlement to be excused from an independent statutory obligation. I therefore find that the Petitioner cannot succeed on a substantive legitimate expectation or estoppel claim of the kind that would exempt its members, indefinitely or otherwise, from the registration requirement in sections 6(1) and 6(1A) of the Traffic Act.
45. That conclusion does not, however, dispose of the matter entirely. It is well recognised that, distinct from any substantive legitimate expectation of exemption from a statutory duty (which the law does not permit), a person may have a procedural legitimate expectation which is that, where a public body has, over a substantial period and without demur, permitted a settled commercial practice to continue, any decision materially to alter or terminate that practice will ordinarily be preceded by reasonable notice and, where practicable, engagement with those affected, before adverse consequences are visited upon them. The Respondent's evidence does not controvert the Petitioner's account that the practice of permitting release of used vehicles from customs areas without prior registration, pending sale, was of long standing and was undertaken with the knowledge of the Respondent and the other implicated agencies. That unrebutted history is directly relevant not to whether the Respondent may enforce the registration duty at all — it plainly may — but to what procedural fairness required of it in doing so, which I address next.
(v) Fair administrative action — Article 47
46. The impugned Notice was issued without any pleaded prior consultation with the Petitioner or its members, and required com
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1. By a Petition dated and filed on 13th December 2024, the Petitioner, the Car Importers Association of Kenya (“CIAK” or “the Petitioner”), invokes the jurisdiction of this Court under Articles 1, 10, 20, 28, 40, 43 and 47 of the Constitution of Kenya, 2010, together with the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, challenging an undated notice issued by the Respondent, the National Transport and Safety Authority (“NTSA” or “the Respondent”), titled “Public Notice on Unregistered Vehicles by Motor Vehicle Dealers” (“the impugned Notice”).
2. The Petition is supported by the affidavit of Peter Otieno, sworn on 13th December 2024, who describes himself as the National Chairman of the Petitioner and as being duly authorised, by a resolution of the Petitioner's members dated 4th December 2024, to swear the affidavit and to represent the Petitioner in these proceedings. The Petition was accompanied by a Notice of Motion of even date seeking interim conservatory/injunctive orders pending the hearing and determination of the Petition, supported by a further affidavit of Mr Otieno in substantially similar terms.
3. The Respondent opposed both the Petition and the application by a Replying Affidavit sworn on 12th February 2025 by Collins Kipkorir Kieng, who describes himself as the Manager in charge of Registration at the Respondent and as duly authorised to swear the affidavit on the Respondent's behalf.
Parties
4. The Petitioner is a society registered under the Societies Act (Certificate of Registration No. 38267), representing car importers and dealers in Kenya. It pleads that it represents seventy-three (73) members (though the list annexed to the supporting affidavit as “PO-2” appears to enumerate seventy-five (75) entries), being owners of motor vehicle showrooms spread across the country, and that one of its objects is to promote and protect the legitimate trade of car importation.
5. The Respondent is a statutory body established under the National Transport and Safety Authority Act, No. 33 of 2012, charged, among other things, with the registration, licensing and inspection of motor vehicles for use on Kenyan roads, and with the licensing and regulation of motor vehicle and motorcycle dealers pursuant to sections 23(1) and 24(c) of the Traffic Act (Cap. 403).
Petitioner's case
6. The Petitioner's case, as pleaded in the Petition and elaborated in the supporting affidavit, may be summarised as follows.
7. The Petitioner's members are engaged in the business of importing second-hand motor vehicles, principally from Japan and Dubai, which are cleared through the Port of Mombasa and thereafter sold to clients across Kenya from showrooms owned by the members. The importation, clearance and registration of such vehicles is stated to involve three Government agencies acting in tandem, namely the Kenya Revenue Authority (“KRA”), which assesses and collects duty; the Kenya Bureau of Standards (“KBS”), which certifies compliance with quality standards; and the Respondent, which registers the vehicles and issues logbooks and number plates.
8. The Petitioner avers that, over a lengthy period, the Respondent and the other relevant agencies permitted its members to clear imported vehicles, pay all applicable duty, and remove such vehicles from the customs areas (the Kenya Ports Authority and Container Freight Stations) into their showrooms without prior registration, on the footing that registration and issuance of logbooks and number plates would occur only upon the sale of a given unit to an eventual buyer. The Petitioner contends that no vehicle could lawfully have exited a customs area without the sanction of all the relevant agencies, including the Respondent, and that this practice was accordingly undertaken with the Respondent's knowledge and approval.
9. The commercial rationale advanced for this arrangement is that a vehicle imported and registered immediately upon clearance will, by the time it is sold, said to average some six months later, bear a number plate on a series that a prospective buyer will perceive as comparatively old, prejudicing its resale value irrespective of its true condition or mileage. In support of this contention, the Petitioner annexes a valuation report by Strategic Automobile Valuers and Loss Assessors Limited said to demonstrate depreciation attributable to vehicles remaining registered but unsold over an extended period.
10. The Petitioner further contends that franchise dealers of new motor vehicles (naming, by way of example, DT Dobbie and CMC Motors) are permitted by the same regulatory agencies to import and hold their stock without payment of duty or registration until the point of sale, and that the Respondent's insistence on upfront registration of used vehicles, while affording new-vehicle franchise dealers the latitude to register only at the point of sale, amounts to differential and, in the Petitioner's characterisation, discriminatory treatment as between the two classes of dealer.
11. On or about 7th December 2024, the Petitioner became aware of the impugned Notice on the Respondent's website. The Notice recites that it is issued pursuant to sections 23(1) and 24(c) of the Traffic Act, and that a multi-agency revalidation exercise (comprising the Respondent, KRA, the Financial Reporting Centre, the Directorate of Immigration Services and unspecified security agencies) had established that several motor vehicle dealers were holding unregistered vehicles within their showrooms and yards, contrary to the Traffic Act. The Notice directed all motor vehicle dealers to complete pending registration applications by Monday, 16th December 2024, failing which law enforcement agencies were advised to impound vehicles operating without registration plates or using Kenya Dealer (“KD”) plates unlawfully, and to charge the dealers and owners concerned.
12. Alarmed by the Notice, the Petitioner convened a meeting with representatives of the Respondent on 10th December 2024 at Al Waris Restaurant, Kizingo, Mombasa, attended by, among others, the Respondent's Deputy Director General, Mr Cosmas Ngeso (said to have represented the Director General), the Coast Regional Manager, Ms Carolyne Naisiaye, and the Assistant Coast Regional Manager, Mr John Parteroi. The Petitioner states that it was advised at that meeting to reduce its concerns to writing, and did so by a memorandum dated 10th December 2024 addressed to the Respondent's Director General, in which it, among other things: (a) disputed the practical adequacy of the compliance window, given weekends and the intervening public holiday; (b) proposed an extension of three months within which to complete registration; (c) proposed, in the alternative, an official per-vehicle release fee graduated by engine capacity, ranging from Kshs. 2,000 to Kshs. 5,000; and (d) requested the discontinuation of a stated Kshs. 750 charge for a service (identified in the memorandum as “FRID”) said no longer to be rendered.
13. The Petitioner pleads that, as at the date of the Petition, the Respondent had not formally responded to the memorandum, and that it apprehended that, with effect from 16th December 2024, its members' unregistered vehicles would be impounded and its members charged in criminal proceedings for dealing in unregistered motor vehicles. (ii) The Petitioner's written submissions
14. In its written submissions, the Petitioner elaborates on, and in some respects supplements, its pleaded case.
15. The Petitioner draws attention to the Traffic Act (Registration Plate) Rules, contained in Legal Notice No. 62 of 2016, which it submits distinguish two classes of dealer: under Rule 13A, dealers in used motor vehicles are issued with a dealer's registration plate bearing the prefix “KD”, enabling them to move such vehicles, in particular from customs areas to their showrooms or warehouses; and under Rule 13, dealers in new motor vehicles are issued with a dealer's registration plate bearing the prefix “KG” for the equivalent purpose. The Petitioner submits that the material difference lies not in the availability of a dealer plate as such — both classes have one — but in the point at which full duty must be settled: used-vehicle dealers, it submits, must settle the full revenue payable before their vehicles may be moved to their showrooms, whereas new-vehicle franchise dealers may remove their vehicles to their showrooms and settle duty only upon effecting a sale.
16. Relying on section 60 of the Evidence Act (Cap. 80), the Petitioner invites the Court to take judicial notice that a second-hand motor vehicle cannot exit a Container Freight Station without the sanction of KRA, KBS and the Respondent, and submits that it is not now open to the Respondent to treat its own prior sanction of the practice as having been of no legal consequence. For this proposition the Petitioner invokes section 120 of the Evidence Act and the doctrine of estoppel, citing Pickard v Sears (1837) 112 ER 179, John Mburu v Consolidated Bank of Kenya Limited [2015] eKLR, and Carol Construction Engineers Limited & another v National Bank of Kenya, Nakuru HCCS No. 20 of 2020, [2020] eKLR, for the proposition that a party who by words or conduct causes another to believe in a particular state of affairs, and to act on that belief, will not be permitted to resile from it to that other's detriment. It also relies on Stanley Munga Githunguri v Republic [1986] eKLR, a decision of a three-judge bench of the former High Court, for the proposition that an assurance given by a public office, once relied upon, ought ordinarily to be honoured absent fresh circumstances justifying departure from it, as an incident of the accountability and transparency values now reflected in Articles 10 and 47 of the Constitution.
17. As to the question of a hearing, the Petitioner submits that the compliance window afforded by the impugned Notice — some seven days, spanning an intervening weekend and public holiday — did not accord its members any real opportunity to be heard before the adverse decision to threaten impoundment and prosecution was taken. It relies on the observations of Lord Denning MR in Kanda v Government of Malaya [1962] AC 322, of Nyarangi JA in Nyongesa & 4 others v Egerton University College [1990] eKLR, and on Martin Nyaga Wambora & 4 others v Speaker of the Senate & 6 others, as cited in County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others [2015] eKLR, for the proposition that a fair hearing encompasses the affording of sufficient time to respond.
18. Regarding discrimination, the Petitioner relies on Car Importers Association of Kenya v Kenya Revenue Authority & 3 others, HCCHR Petition No. 190 of 2018, [2019] eKLR, in which this Court (Ogolla J) found, in a different context concerning the valuation of imported motor vehicles for customs purposes, that the Kenya Revenue Authority had acted unfairly and inconsistently as against members of the Petitioner association. The Petitioner submits that the present differential treatment as between used-vehicle and new-vehicle dealers is of the same character, and adds that the consequences of impoundment and prosecution would fall with particular severity on its members' livelihoods, many of whom it describes as being of Pakistani nationality.
19. The Petitioner submits, finally, that the Respondent's failure to respond to its memorandum of 10th December 2024, before proceeding to threaten enforcement, is itself indicative of a want of good faith, and asks the Court to allow the Petition as prayed.
The constitutional and legal grounds pleaded
20. The Petitioner particularises the alleged violations substantially as follows:
21. Legitimate expectation and estoppel – that by permitting the release of vehicles from customs areas without prior registration over a lengthy period, on payment of the applicable revenue, the Respondent (jointly with KRA and KBS) created a reasonable and legitimate expectation that the Petitioner's members were at liberty to trade in and hold such vehicles and to register them only upon securing a buyer; and that, by section 120 of the Evidence Act (Cap. 80) and the doctrine of estoppel by representation, the Respondent cannot now resile from that representation to the detriment of the Petitioner's members;
22. Article 10 and Article 47 – that the Respondent's issuance of the impugned Notice, without engaging the Petitioner or its members in any form of public participation, and without prior notice reasonably sufficient to permit compliance, offends the national values of accountability specified in Article 10(2)(c) and the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair under Article 47;
23. Articles 40 and 43 – that the threatened impounding of the vehicles, and the associated threat of criminal prosecution, would deprive the Petitioner's members of the use and enjoyment of their property and imperil their means of livelihood and that of their employees, contrary to the right to property under Article 40 and the economic dimension of the rights protected under Article 43;
24. Article 28 – that the differential treatment of used-vehicle dealers as against new-vehicle franchise dealers, in the respects pleaded at paragraph 6 above, is discriminatory and an affront to the guarantee of dignity under Article 28, read together with the equality and non-discrimination guarantee under Article 27.
Reliefs sought
25. The Petitioner prays for the following orders:
(a) A declaration that the Respondent's undated notice titled “Public Notice on Unregistered Vehicles by Motor Vehicle Dealers” violates the Petitioner's fundamental rights under Articles 10, 28, 40, 43 and 47 of the Constitution;
(b) An order declaring the said Notice null and void for all purposes;
(c) An order restraining the Respondent from interfering with any of the imported motor vehicles lying in any of the Petitioner's members' showrooms on the ground only of non-registration of the same; and
(d) Any other order that the Court may deem just.
Respondent's case
26. The Respondent's case, as set out in the Replying Affidavit of Collins Kipkorir Kieng, may be summarised as follows.
27. The Respondent confirms that it is a State Corporation established under the National Transport and Safety Authority Act, No. 33 of 2012, mandated, among other things, to plan, manage and regulate the road transport system and to implement policies relating to road transport and safety, and that its functions include the registration of motor vehicles, motor vehicle inspection and certification, regulation of public service vehicles, and the development and implementation of road safety strategies.
28. The Respondent's central legal position is that its conduct in requiring registration of the Petitioner's members' vehicles is not a matter of administrative discretion capable of being displaced by an alleged prior practice, but the exercise of a statutory duty. In this regard, the Respondent relies on section 6(1) of the Traffic Act (Cap. 403), which it states provides that no person shall possess a motor vehicle or trailer, other than a vehicle exempted from that Part of the Act, unless the vehicle is registered under the Act, and on section 6(1A), which it states provides that no motor vehicle imported for home use shall be used on a road unless it is registered.
29. On the comparator advanced by the Petitioner as between used-vehicle dealers and other categories of importer, the Respondent's answer, as deposed to, is directed to locally-assembled motor vehicles: it avers that assemblers import component parts, which are not vehicles in the completed sense, and that such persons apply for registration only once assembly is complete, the assembled units remaining in their garages and off the road until registered. The Respondent does not, in the Replying Affidavit, specifically address the Petitioner's distinct example of new-vehicle franchise dealers (such as DT Dobbie and CMC Motors) said to hold completed, imported new vehicles without registration pending sale.
30. The Respondent further avers that an unknown number of unregistered vehicles in the country poses a significant security risk, though no further particulars of this averment are given.
31. As far as the application for interim injunctive relief is concerned, the Respondent avers, on the advice of its advocate which the deponent states he verily believes to be true, that the Petitioner has not demonstrated the three conditions ordinarily required before an interlocutory injunction may issue.
32. As for the substantive Petition, the Respondent avers, again on advice: (a) that the Petitioner has not demonstrated how the alleged discrimination arises; (b) that, applying the principle in Anarita Karimi Njeru v Republic [1979] eKLR, the Petitioner has not pleaded with the requisite precision the specific constitutional provisions said to have been violated and the manner of their violation; and (c) that the Petitioner has not discharged the burden of proving a clear and unambiguous threat of, or actual, violation of the Constitution sufficient to warrant the orders sought.
Respondent's written submissions
33. In its written submissions, filed after those of the Petitioner, the Respondent for the first time squarely engages with the Petitioner's principal comparator, namely new-vehicle franchise dealers, doing so by reference to the East African Community Customs Management Act, 2004 (“EACCMA”). The Respondent submits that franchise owners of new motor vehicles import under the warehousing, re-warehousing or removal-to-another-warehouse regime provided for in section 34 of the EACCMA, whereas the Petitioner's members import used motor vehicles under the home consumption regime provided for in section 50(1) of the EACCMA, and that it is this difference in the applicable customs regime, and not any impermissible ground, that accounts for the difference in the point at which duty falls due and, correspondingly, the point at which registration may practically follow.
34. The Respondent submits, citing the definition of discrimination in Black's Law Dictionary (10th edn) and the three-stage inquiry commended in Mbona v Shepstone and Wylie [2015] ZACC 11 — namely, whether the impugned measure differentiates between persons, whether that differentiation amounts to discrimination, and, if so, whether the discrimination is unfair — that the Petitioner has not shown the differentiation to be founded on any of the grounds ordinarily recognised as prohibited (race, age, sex, nationality, religion or similar hardship-based classifications), and has, in any event, not demonstrated that a differentiation between two lawfully distinct customs regimes is irrational or unfair.
35. Applying Anarita Karimi Njeru v Republic, the Respondent maintains that the Petitioner has not demonstrated, with the requisite precision, the manner and extent to which each of the pleaded Articles has been violated. The Respondent further submits that the impugned Notice was not issued “out of the blue” but was a courteous reminder of an existing statutory obligation which the Respondent was, in any event, entitled to enforce directly without prior notice; that the Petition is animated by the Petitioner's own commercial interest in avoiding registration-related depreciation rather than any true constitutional grievance; and that the franchise dealers, whose treatment forms the comparator on which the discrimination claim depends, ought to have been joined as parties, since any order made in their absence would unfairly affect their interests.
36. The Respondent also submits that a materially similar petition, Car and Importers Association v Kenya Revenue Authority and National Transport and Safety Authority, Mombasa High Court Petition No. E035 of 2021, raising similar issues, was dismissed; that the Petitioner did not appeal that decision; and that the present Petition, framed by omitting the Kenya Revenue Authority as a party, is in substance a re-agitation of the same grievance and an abuse of the process of the Court.
37. On the foregoing basis, the Respondent urges the Court to find the Petition baseless, misconceived and devoid of merit, and to dismiss it with costs.
38. Issues for determination
39. Arising from the pleadings, the affidavit evidence and the submissions now on record, the following issues fall for determination:
(a) whether the Petitioner has locus standi to institute and maintain this Petition on behalf of its members;
(b) whether the Petition meets the threshold of precision in pleading constitutional violations required by Anarita Karimi Njeru v Republic;
(c) whether the present Petition is barred, in whole or in part, as an abuse of the process of the Court by reason of the earlier decision in Mombasa High Court Petition No. E035 of 2021;
(d) whether the Respondent's earlier practice of permitting release of imported used motor vehicles from customs areas without prior registration is capable, consistently with sections 6(1) and 6(1A) of the Traffic Act, of founding a legitimate expectation or estoppel binding on the Respondent, and, if so, of what content and effect;
(e) whether the manner and timeline of the issuance and intended enforcement of the impugned Notice complied with the requirements of fair administrative action under Article 47 of the Constitution and the Fair Administrative Action Act, 2015;
(f) whether the differential treatment of used-vehicle dealers as against new-vehicle franchise dealers discloses unlawful discrimination contrary to Articles 27 and 28 of the Constitution, having regard, in particular, to the customs regimes said by the Respondent to govern each category;
(g) whether the threatened impoundment of vehicles and prosecution of the Petitioner's members would, independently of issue (e), violate Articles 40 and 43 of the Constitution; and
(h) what reliefs, if any, the Petitioner is entitled to, and on what terms as to costs.
Analaysis
(i) Locus standi
40. The Respondent does not, in either the Replying Affidavit or its written submissions, take issue with the Petitioner's standing to bring this Petition on behalf of its members. Given the Petitioner's registration as a society, the authority of its members to Mr Otieno to swear the affidavit and represent the Petitioner, and Article 22(2) of the Constitution, which permits a person to institute proceedings on behalf of a group or class of persons and an association acting in the interest of its members, I am satisfied that the Petitioner has the requisite standing.
(ii) Precision of pleading — the Anarita Karimi Njeru threshold
41. The Respondent's reliance on Anarita Karimi Njeru v Republic requires consideration at the threshold, since if well founded it would dispose of the constitutional claims without recourse to their merits. The rule in that case, as since refined in later authority, requires a party alleging violation of the Constitution to set out with reasonable precision the provision said to be infringed and the manner of its infringement, so as to enable the respondent to know the case it has to meet. The Petition here identifies specific articles (10, 28, 40, 43 and 47) and, at paragraphs 17 to 19 of the affidavit in support, links each to a discrete factual complaint — want of public participation and reliance on a representation later resiled from (Articles 10 and 47), differential treatment as against franchise dealers (Article 28, read with Article 27), and the threat to property and livelihood from impoundment and prosecution (Articles 40 and 43). This connects each article to a specific factual foundation rather than pleading violation of the Constitution in the abstract. Whether that connection is ultimately made out on the merits is a different question from whether it is pleaded with sufficient precision to pass the Anarita Karimi Njeru threshold, and I decline to conflate the two. I find that the Petition meets the required threshold and I decline to dismiss it on this preliminary ground.
(iii) The alleged prior petition — Mombasa High Court Petition No. E035 of 2021
42. I deal next, out of the order in which it arises in the Respondent's submissions, with the contention that this Petition is barred as an abuse of the process of the Court by reason of the decision in Mombasa High Court Petition No. E035 of 2021. This objection was raised for the first time in the Respondent's written submissions. No copy — certified or otherwise — of the pleadings, judgment or order said to have disposed of that petition has been placed before the Court, whether by affidavit evidence or annexure, and neither the parties, the issues framed, nor the basis of dismissal in that matter have been particularised beyond the bare assertion that “similar issues” were raised and “the same was dismissed”. Submissions of counsel, however persuasively advanced, are not a substitute for evidence, and a plea of res judicata or abuse of process requires the party raising it to place before the Court sufficient material to enable it to test whether the parties, subject matter and issues in the two proceedings are indeed the same. On the record as it stands, I am unable to make any finding as to the existence, content or effect of the decision relied upon, and I decline to uphold this objection. This is without prejudice to the Respondent's ability to plead and establish such a defence, with appropriate evidentiary support, in an appropriate case.
(iv) Legitimate expectation and estoppel
43. The Respondent's answer to the legitimate expectation and estoppel case is, in substance, that the registration of motor vehicles is not a matter of administrative grace but a statutory duty imposed by section 6(1) of the Traffic Act, reinforced by section 6(1A) in respect of vehicles imported for home use, and that no representation, however consistently made or relied upon, can estop a public body from performing a duty imposed on it by statute. That is a sound statement of the law. It is well established, both at common law and in this jurisdiction, that estoppel cannot be raised so as to relieve a public body of a duty imposed on it by statute, or to invest it with a power it does not in law possess: see, generally, Southend-on-Sea Corporation v Hodgson (Wickford) Ltd [1962] 1 QB 416. Sections 6(1) and 6(1A) of the Traffic Act are framed in mandatory terms (“no person shall possess… unless… registered”; “no motor vehicle… shall be used on a road unless… registered”), and no representation by an officer of the Respondent, however made, could have had the legal effect of permanently exempting the Petitioner's members from that duty.
44. The authorities on which the Petitioner relies do not, on examination, assist it to the contrary. Stanley Munga Githunguri v Republic concerned the exercise of the Attorney-General's discretionary power under the former section 26(3) of the Constitution to institute or decline to institute criminal proceedings — a discretionary power, the exercise of which the Court held could, in the circumstances of that case, give rise to a legitimate expectation binding the office. It did not concern, and does not assist in the analysis of, a mandatory statutory duty of the kind imposed by section 6(1) and 6(1A) of the Traffic Act. John Mburu v Consolidated Bank of Kenya Limited and Carol Construction Engineers Limited & another v National Bank of Kenya were, in turn, private commercial disputes between a bank and its customers, decided on ordinary principles of estoppel in pais as between private parties; indeed, in Mburu, the doctrine was applied against, rather than in favour of, the party seeking to reopen a settled account. More fundamentally, each of those authorities, faithfully applying Moorgate Mercantile Co Ltd v Twitchings [1976] 1 QB 225 and Pickard v Sears, confirms that equitable estoppel “is not a cause of action” and operates only to preclude a party from asserting something inconsistent with an earlier representation; it does not, in itself, create a substantive entitlement to be excused from an independent statutory obligation. I therefore find that the Petitioner cannot succeed on a substantive legitimate expectation or estoppel claim of the kind that would exempt its members, indefinitely or otherwise, from the registration requirement in sections 6(1) and 6(1A) of the Traffic Act.
45. That conclusion does not, however, dispose of the matter entirely. It is well recognised that, distinct from any substantive legitimate expectation of exemption from a statutory duty (which the law does not permit), a person may have a procedural legitimate expectation which is that, where a public body has, over a substantial period and without demur, permitted a settled commercial practice to continue, any decision materially to alter or terminate that practice will ordinarily be preceded by reasonable notice and, where practicable, engagement with those affected, before adverse consequences are visited upon them. The Respondent's evidence does not controvert the Petitioner's account that the practice of permitting release of used vehicles from customs areas without prior registration, pending sale, was of long standing and was undertaken with the knowledge of the Respondent and the other implicated agencies. That unrebutted history is directly relevant not to whether the Respondent may enforce the registration duty at all — it plainly may — but to what procedural fairness required of it in doing so, which I address next.
(v) Fair administrative action — Article 47
46. The impugned Notice was issued without any pleaded prior consultation with the Petitioner or its members, and required com
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