'
[1] This Petition was brought by the two petitioners, Roy Transmotors Limited and East African Petroleum Transporters Association . It seeks the following reliefs against the County Government of Mombasa (hereinafter, “the respondent”):
[a] A declaration that the decision of the respondent to order for the arrest and detention of the 1 st petitioner’s Motor Vehicles Registration Numbers KCP 819F/ZD 4057, KCP 821F/ZD 1790 and KCP 823F/ZD 6506 and any other motor vehicle belonging to the 1 st petitioner and 2 nd petitioners’ members is against their constitutional rights.
[b] An order of certiorari to quash the decision of the respondent to arrest, clamp, detain, prosecute and deal with the 1 st petitioner’s Motor Vehicles Registration Numbers KCP 819F/ZD 4057, KCP 821F/ZD 1790 and KCP 823F/ZD 6506 on account of alleged failure to take out a fire department clearance certificate from the respondent.
[c] An order restraining the respondent from effecting arrest, clamping, detaining, prosecuting or dealing with the 1 st petitioner’s motor vehicles Registration Numbers KCP 819F/ZD 4057, KCP 821F/ZD 1790 and KCP 823F/ZD 6506 and any other motor vehicle belonging to the 1 st petitioner on account of alleged failure to take out a fire clearance certificate from the respondent.
[d] An order for compensation against the respondent for loss of business occasioned to the 1 st petitioner at the rate of Kshs. 90,000/= per day totalling Kshs. 360,000/= as well as parking fees at the rate of Kshs. 1,000/= totalling Kshs. 6,000/= and Kshs. 21,000/= paid by the 1 st petitioner for the release of the three motor vehicles.
[e] An order for injunction against the respondent restraining the respondent either by itself, its agents, employees, directors or any persons or officers acting under its directions from further holding, clamping, restraining movement, sanctioning, prosecuting and/or dealing in any way with motor vehicles Registration Numbers KCP 819F/ZD 4057, KCP 821F/ZD 1790 and KCP 823F/ZD 6506.
[f] An order that the 1 st petitioner’s motor vehicles Registration Numbers KCP 819F/ZD 4057, KCP 821F/ZD 1790 and KCP 823F/ZD 6506 be released to the 1 st petitioner unconditionally.
[g] Costs of the Petition.
[2] The petitioners averred that the 1 st petitioner is a limited liability company and transporter within the East African region, and the owner of motor vehicles, Registration Numbers KCP 819F/ZD 4057, KCP 821F/ZD 1790 and KCP 823F/ZD 6506. It is a member of the 2 nd petitioner, an association of transporters within the East African region.
[3] The petitioners also averred that the 1 st petitioner’s county of domicile is the Nairobi City County and that the subject motor vehicles have Clearance Certificates Nos. 4012, 4013 and 55582 respectively, issued by the Fire Department of the Nairobi City County which were all set to expire on 31 st December 2022. The petitioners explained that the 2 nd petitioner, in collaboration with the Commission on Revenue Allocation came up with a policy to ensure that once an organization obtained a Certificate of Clearance from its county of domicile, such a Certificate would apply across the other 46 counties to avoid double taxation in the event of transit.
[4] The 1 st petitioner was therefore aggrieved that on the 21 st November 2022, its motor vehicles Registration Numbers KCP 819F/ZD 4057, KCP 821F/ZD 1790 and KCP 823F/ZD 6506 were clamped in Mombasa by the respondent’s officers around the Mombasa Joint Depot in Changamwe. This was after the 1 st petitioner’s drivers were required to produce Clearance Certificates issued by the respondent and not from any other county. They added that, as a result the 1 st petitioner suffered loss to the tune of Kshs. 90,000/= per day in addition to being required to pay parking fees at the rate of Kshs. 1,500/= per day as well as other unnecessary charges.
[5] The petitioners further stated that, in the foregoing circumstances, the 1 st petitioner was forced to pay for the Fire Certificates to avoid further loss of business. Consequently, the motor vehicles were released on the 24 th November 2022. They reiterated that the 1 st petitioner suffered immense loss as its clients threatened adverse action; hence the Petition.
[6] The 1 st petitioner relied on the affidavit of its Administrative Manager, Ms. Nairuti Fridah Makena , sworn on 22 nd November 2021 as well as the Further Affidavit sworn on 30 th November 2022. The affiant reiterated the averments set out in the body of the Amended Petition. Annexed to the said affidavits, were copies of the Fire Certificates issued by the Nairobi City County and the receipts for the expenses incurred following the clamping of the subject motor vehicles, among other documents.
[7] The 1 st petitioner further averred that, as a transporter, it is a member of the 2 nd petitioner, through which members engaged the interested parties with a view of resolving challenges in trans-county operations. At paragraph J of its Supporting Affidavit, the 1 st petitioner explained that, in collaboration with the Commission on Revenue Allocation, the 2 nd interested party formulated a policy to ensure that once an organization obtains a Fire Certificate from its County of business, such Certificate would apply across the other 46 Counties for vehicles in transit so as to curb double taxation. Copies of letters to that effect, dated 9 th February 2018 and 18 th June 2018 from the 1 st and 2 nd interested parties were annexed to the 1 st petitioner’s Supporting Affidavit as Annexure ‘NFM-5’ ‘NFM-6’.
[8] It was therefore the assertion of the 1 st petitioner that the respondent acted wrongfully in clamping the subject motor vehicles; and that as a direct result of the wrongful act, its constitutional right to the enjoyment and benefit of its property was infringed. The 1 st petitioner also averred that it lost revenue to the tune of Kshs. 90,000/= per day; and had to also pay parking fees to the respondent for the period in question. It accordingly prayed that the orders sought in the Petition be granted in the interest of justice.
[9] On behalf of the 2 nd petitioner, an additional Supporting Affidavit was sworn by Mohamed Abdulle , the Secretary General of the Association. The 2 nd petitioner thereby confirmed that the 1 st petitioner is a transporter within the East African region and is one of its members. The 2 nd respondent also confirmed that the 1 st petitioner is the registered owner of the subject motor vehicles. The 2 nd petitioner further confirmed that the 1 st petitioner’s county of domicile and primary operations is Nairobi City County. It otherwise reiterated the averments of the 1 st petitioner as regards what they consider to be the wrongful clamping of the 1 st petitioner’s motor vehicles and the impact thereof.
[10] In response to the Petition as amended, the respondent relied on the Replying Affidavit sworn by Affan Mohammed, its officer in charge of Revenue. The respondent thereby averred that its chief concern is to ensure compliance with fire safety in accordance with the functions and powers of County Governments as set out in Section 12 in Part 2 of the Fourth Schedule of the Constitution.
[11] The respondent further deposed that, for it to provide the residents of the County of Mombasa with firefighting and other services, it must collect revenue and mobilize resources for efficient service delivery. It denied having detained the 1 st petitioner’s motor vehicles. The respondent averred that it has the right to charge for firefighting services, granted that the 1 st petitioner’s trucks collect volatile petroleum products from Mombasa County.
[12] Regarding the policy directive issued by the 1 st and 2 nd interested parties, the respondent averred that the 1 st interested party has not mandate, within the constitutional framework of Kenya, to issue such a directive to the respondent. The respondent pointed out that the payment of Fire Certificates is provided for in the Mombasa County Finance Act, 2021/2022 in accordance with Article 209 of the Constitution.
[13] The Petition was canvassed by way of written submissions. The petitioners relied on their written submissions dated 13 th March 2023. They submitted that one of the principles guiding the management of public finance is that the burden of taxation should be shared fairly; and that a system of taxation that lends itself to the possibility of double taxation cannot be said to be fair as such a system would amount to a breach of Article 201(b)(i) of the Constitution. The petitioners cited the case of Waweru & 3 others (suing as officials of Kitengela Bar Owners Association & another v National Assembly & 2 others; Institute of Certified Public Accountants of Kenya (ICPAK) & 2 others (Interested Parties) [2021] KEHC 9748 (KLR) (20 September 2021) (Judgment) to buttress their submissions.
[14] The petitioners also made reference to Article 191(2) of the Constitution contending that, where there is conflict between the National legislation and the County legislation then the National legislation would prevail in the circumstances set out in Sub-Articles (2) and (3) thereof. It was therefore their submission that the clamping of the 1 st petitioner’s motor vehicles by the respondent was unlawful and unjustified and therefore urged the Court to award the reliefs prayed for in their Amended Petition.
[15] The Court was unable to access the document filed herein on 27 th April 2024 and therefore did not have the benefit of respondent’s written submissions. I have nevertheless taken into consideration the averments in the Amended Petition, its Supporting Affidavit, the Replying Affidavit filed by the respondent and the Supplementary Affidavit in addition to the written submissions filed by counsel for the petitioners.
[16] There is no dispute that the petitioner is a limited liability company engaged in the business of transportation of petroleum products within the East African Region. There is further no dispute that the 1 st petitioner is the owner of the subject motor vehicles, namely, Motor Vehicles Registration Numbers KCP 819F/ZD 4057, KCP 821F/ZD 1790 and KCP 823F/ZD 6506. The Registration Certificates in proof thereof were exhibited as annexures to the Supporting Affidavit of Nairuti Fridah Makena and marked Annexure ‘NFM-3’.
[17] The respondent vehemently denied the petitioners’ allegations. It contended in its Replying Affidavit that no evidence was placed before the Court by the petitioners in support of their allegations. In particular, the respondent averred that:
[a] The source of the petroleum products was Mombasa; and therefore the products were not in transit as alleged by the petitioners.
[b] The policy relied on by the petitioners has not been produced before the Court or attached to the Petition.
[c] A policy document is not binding on the respondent.
[d] The aspect of double taxation does not apply in this context as the 1 st petitioner’s motor vehicles move from one county to another, enjoying services provided by those counties; and therefore the licence issued by the 1 st interested party has nothing to do with the firefighting services it provides.
[18] In the light of the foregoing, the issues for determination in the matter are:
[a] Whether the respondent clamped/detained the 1 st petitioner’s motor vehicles as alleged and if so, whether the same amounts to a violation of the 1 st petitioner’s constitutional rights.
[b] Whether, in the circumstances the 1 st petitioner is entitled to the reliefs sought.
A. Whether the respondent clamped/detained the 1 st petitioner’s motor vehicles as alleged and if so, whether the same amounts to a violation of the 1 st petitioner’s constitutional rights:
[19] The respondent having denied that it clamped or detained the 1 st petitioner’s motor vehicles, the burden of proof was on the petitioners to prove their allegations to the requisite standard. This point was made by the Supreme Court in Odinga & 5 others v Independent Electoral and Boundaries Commission & 3 others (Petition 5, 3 & 4 of 2013 (Consolidated)) [2013] KESC 6 (KLR) (16 April 2013) (Judgment) , as follows:
“…a petitioner should be under obligation to discharge the initial burden of proof, before the respondents are invited to bear the evidential burden…”
[20] Likewise, in Leonard Otieno v Airtel Kenya Limited [2018] eKLR it was emphasized that:
“65. It is a fundamental principle of law that a litigant bears the burden (or onus) of proof in respect of the propositions he asserts to prove his claim. Decisions on violation of constitutional rights should not and must not be made in a factual vacuum. To attempt to do so would trivialize the constitution and inevitably result in ill-considered opinions. The presentation of clear evidence in support of violation of constitutional rights is not, a mere technicality; rather, it is essential to a proper consideration of constitutional issues. Decisions on violation of constitutional rights cannot be based upon the unsupported hypotheses.”
[21] The Supreme Court reiterated the position in Wamwere & 5 Others v Attorney General (Petition 26, 34 & 35 of 2019 (Consolidated)) [2023] KESC 3 (KLR) (Constitutional and Human Rights) (27 January 2023) (Judgment) and held:
66. The two superior courts below were of the unanimous view that a petitioner bears the burden to prove his/her claim of alleged threat or violation of rights and freedoms to the requisite standard of proof, which is on a balance of probabilities. We affirm this juridical standpoint bearing in mind that such claims are by nature civil causes. See Deynes Muriithi & 4 others v Law Society of Kenya & another , SC Application No 12 of 2015; [2016] eKLR.
67. In this case, the onus of proof was on the 1 st appellant to adduce sufficient evidence to demonstrate that firstly, she owned or erected or lived in the alleged properties; and secondly, that state agents interfered or deprived her of the subject properties. This, as was aptly appreciated by the superior courts, is the import of section 107 of the Evidence Act on the burden of proof. The provision stipulates:
107. 1.Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
2.When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
In addition, section 109 of the Evidence Act elaborates on the onus of proof by stipulating that:
“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
[22] The petitioners deposed that the subject motor vehicles were impounded by the respondent’s officers around Mombasa Joint Depot in Changamwe. In proof thereof, they relied on the photographs marked Annexures NFM-7. I have looked at those images and note that there is no indication that the motor vehicles were clamped when the photographs were taken. The 1 st photograph is a close up view of the windscreen area of a truck. It gives no indication as to the exact motor vehicle photographed. The 2 nd photographs shows a clamped wheel but do not necessarily help identify the motor vehicle concerned.
[23] Moreover, the photographs do not have a time stamp. This omission is critical. A time stamp would have enabled the Court ascertain when and at what time the photographs were taken vis-à-vis the time and date of the alleged violations. Indeed, there is no evidence at all as to whether the photographs were generated digitally or whether they were transmitted from one information system to another. It can only be presumed that the photographs were photocopied from some original source, which is not good enough. In Samwel Kazungu Kambi v Nelly Ilongo & 2 Others [2017] eKLR such evidence was discredited by the Court thus:
“22. The source of the photocopies of the photographs annexed to the affidavit sworn by the Petitioner in support of the Petition was not disclosed. The device used to capture the images was unknown. The person who took the photographs was not named. The person who processed the images was not named. The Petitioner was not an eyewitness to the incident and he could not therefore tell the court that the photographs were a true reflection of the incident he witnessed.”
[24] Having found that none of the photographs had any indication as to the clamping of Motor Vehicle KCP 819F/ZD 4057, KCP 821F/ZD 1790 and KCP 823F/ZD 6506, the inescapable conclusion is that the petitioners have not proved their allegations to the requisite standard and are therefore not entitled to the reliefs sought in this Petition.
[25] In the result, the Amended Petition dated 30 th November 2022 is hereby dismissed with an order that each party shall bear own costs thereof.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 15 TH DAY OF SEPTEMBER 2025
'
[1] This Petition was brought by the two petitioners, Roy Transmotors Limited and East African Petroleum Transporters Association . It seeks the following reliefs against the County Government of Mombasa (hereinafter, “the respondent”):
[a] A declaration that the decision of the respondent to order for the arrest and detention of the 1 st petitioner’s Motor Vehicles Registration Numbers KCP 819F/ZD 4057, KCP 821F/ZD 1790 and KCP 823F/ZD 6506 and any other motor vehicle belonging to the 1 st petitioner and 2 nd petitioners’ members is against their constitutional rights.
[b] An order of certiorari to quash the decision of the respondent to arrest, clamp, detain, prosecute and deal with the 1 st petitioner’s Motor Vehicles Registration Numbers KCP 819F/ZD 4057, KCP 821F/ZD 1790 and KCP 823F/ZD 6506 on account of alleged failure to take out a fire department clearance certificate from the respondent.
[c] An order restraining the respondent from effecting arrest, clamping, detaining, prosecuting or dealing with the 1 st petitioner’s motor vehicles Registration Numbers KCP 819F/ZD 4057, KCP 821F/ZD 1790 and KCP 823F/ZD 6506 and any other motor vehicle belonging to the 1 st petitioner on account of alleged failure to take out a fire clearance certificate from the respondent.
[d] An order for compensation against the respondent for loss of business occasioned to the 1 st petitioner at the rate of Kshs. 90,000/= per day totalling Kshs. 360,000/= as well as parking fees at the rate of Kshs. 1,000/= totalling Kshs. 6,000/= and Kshs. 21,000/= paid by the 1 st petitioner for the release of the three motor vehicles.
[e] An order for injunction against the respondent restraining the respondent either by itself, its agents, employees, directors or any persons or officers acting under its directions from further holding, clamping, restraining movement, sanctioning, prosecuting and/or dealing in any way with motor vehicles Registration Numbers KCP 819F/ZD 4057, KCP 821F/ZD 1790 and KCP 823F/ZD 6506.
[f] An order that the 1 st petitioner’s motor vehicles Registration Numbers KCP 819F/ZD 4057, KCP 821F/ZD 1790 and KCP 823F/ZD 6506 be released to the 1 st petitioner unconditionally.
[g] Costs of the Petition.
[2] The petitioners averred that the 1 st petitioner is a limited liability company and transporter within the East African region, and the owner of motor vehicles, Registration Numbers KCP 819F/ZD 4057, KCP 821F/ZD 1790 and KCP 823F/ZD 6506. It is a member of the 2 nd petitioner, an association of transporters within the East African region.
[3] The petitioners also averred that the 1 st petitioner’s county of domicile is the Nairobi City County and that the subject motor vehicles have Clearance Certificates Nos. 4012, 4013 and 55582 respectively, issued by the Fire Department of the Nairobi City County which were all set to expire on 31 st December 2022. The petitioners explained that the 2 nd petitioner, in collaboration with the Commission on Revenue Allocation came up with a policy to ensure that once an organization obtained a Certificate of Clearance from its county of domicile, such a Certificate would apply across the other 46 counties to avoid double taxation in the event of transit.
[4] The 1 st petitioner was therefore aggrieved that on the 21 st November 2022, its motor vehicles Registration Numbers KCP 819F/ZD 4057, KCP 821F/ZD 1790 and KCP 823F/ZD 6506 were clamped in Mombasa by the respondent’s officers around the Mombasa Joint Depot in Changamwe. This was after the 1 st petitioner’s drivers were required to produce Clearance Certificates issued by the respondent and not from any other county. They added that, as a result the 1 st petitioner suffered loss to the tune of Kshs. 90,000/= per day in addition to being required to pay parking fees at the rate of Kshs. 1,500/= per day as well as other unnecessary charges.
[5] The petitioners further stated that, in the foregoing circumstances, the 1 st petitioner was forced to pay for the Fire Certificates to avoid further loss of business. Consequently, the motor vehicles were released on the 24 th November 2022. They reiterated that the 1 st petitioner suffered immense loss as its clients threatened adverse action; hence the Petition.
[6] The 1 st petitioner relied on the affidavit of its Administrative Manager, Ms. Nairuti Fridah Makena , sworn on 22 nd November 2021 as well as the Further Affidavit sworn on 30 th November 2022. The affiant reiterated the averments set out in the body of the Amended Petition. Annexed to the said affidavits, were copies of the Fire Certificates issued by the Nairobi City County and the receipts for the expenses incurred following the clamping of the subject motor vehicles, among other documents.
[7] The 1 st petitioner further averred that, as a transporter, it is a member of the 2 nd petitioner, through which members engaged the interested parties with a view of resolving challenges in trans-county operations. At paragraph J of its Supporting Affidavit, the 1 st petitioner explained that, in collaboration with the Commission on Revenue Allocation, the 2 nd interested party formulated a policy to ensure that once an organization obtains a Fire Certificate from its County of business, such Certificate would apply across the other 46 Counties for vehicles in transit so as to curb double taxation. Copies of letters to that effect, dated 9 th February 2018 and 18 th June 2018 from the 1 st and 2 nd interested parties were annexed to the 1 st petitioner’s Supporting Affidavit as Annexure ‘NFM-5’ ‘NFM-6’.
[8] It was therefore the assertion of the 1 st petitioner that the respondent acted wrongfully in clamping the subject motor vehicles; and that as a direct result of the wrongful act, its constitutional right to the enjoyment and benefit of its property was infringed. The 1 st petitioner also averred that it lost revenue to the tune of Kshs. 90,000/= per day; and had to also pay parking fees to the respondent for the period in question. It accordingly prayed that the orders sought in the Petition be granted in the interest of justice.
[9] On behalf of the 2 nd petitioner, an additional Supporting Affidavit was sworn by Mohamed Abdulle , the Secretary General of the Association. The 2 nd petitioner thereby confirmed that the 1 st petitioner is a transporter within the East African region and is one of its members. The 2 nd respondent also confirmed that the 1 st petitioner is the registered owner of the subject motor vehicles. The 2 nd petitioner further confirmed that the 1 st petitioner’s county of domicile and primary operations is Nairobi City County. It otherwise reiterated the averments of the 1 st petitioner as regards what they consider to be the wrongful clamping of the 1 st petitioner’s motor vehicles and the impact thereof.
[10] In response to the Petition as amended, the respondent relied on the Replying Affidavit sworn by Affan Mohammed, its officer in charge of Revenue. The respondent thereby averred that its chief concern is to ensure compliance with fire safety in accordance with the functions and powers of County Governments as set out in Section 12 in Part 2 of the Fourth Schedule of the Constitution.
[11] The respondent further deposed that, for it to provide the residents of the County of Mombasa with firefighting and other services, it must collect revenue and mobilize resources for efficient service delivery. It denied having detained the 1 st petitioner’s motor vehicles. The respondent averred that it has the right to charge for firefighting services, granted that the 1 st petitioner’s trucks collect volatile petroleum products from Mombasa County.
[12] Regarding the policy directive issued by the 1 st and 2 nd interested parties, the respondent averred that the 1 st interested party has not mandate, within the constitutional framework of Kenya, to issue such a directive to the respondent. The respondent pointed out that the payment of Fire Certificates is provided for in the Mombasa County Finance Act, 2021/2022 in accordance with Article 209 of the Constitution.
[13] The Petition was canvassed by way of written submissions. The petitioners relied on their written submissions dated 13 th March 2023. They submitted that one of the principles guiding the management of public finance is that the burden of taxation should be shared fairly; and that a system of taxation that lends itself to the possibility of double taxation cannot be said to be fair as such a system would amount to a breach of Article 201(b)(i) of the Constitution. The petitioners cited the case of Waweru & 3 others (suing as officials of Kitengela Bar Owners Association & another v National Assembly & 2 others; Institute of Certified Public Accountants of Kenya (ICPAK) & 2 others (Interested Parties) [2021] KEHC 9748 (KLR) (20 September 2021) (Judgment) to buttress their submissions.
[14] The petitioners also made reference to Article 191(2) of the Constitution contending that, where there is conflict between the National legislation and the County legislation then the National legislation would prevail in the circumstances set out in Sub-Articles (2) and (3) thereof. It was therefore their submission that the clamping of the 1 st petitioner’s motor vehicles by the respondent was unlawful and unjustified and therefore urged the Court to award the reliefs prayed for in their Amended Petition.
[15] The Court was unable to access the document filed herein on 27 th April 2024 and therefore did not have the benefit of respondent’s written submissions. I have nevertheless taken into consideration the averments in the Amended Petition, its Supporting Affidavit, the Replying Affidavit filed by the respondent and the Supplementary Affidavit in addition to the written submissions filed by counsel for the petitioners.
[16] There is no dispute that the petitioner is a limited liability company engaged in the business of transportation of petroleum products within the East African Region. There is further no dispute that the 1 st petitioner is the owner of the subject motor vehicles, namely, Motor Vehicles Registration Numbers KCP 819F/ZD 4057, KCP 821F/ZD 1790 and KCP 823F/ZD 6506. The Registration Certificates in proof thereof were exhibited as annexures to the Supporting Affidavit of Nairuti Fridah Makena and marked Annexure ‘NFM-3’.
[17] The respondent vehemently denied the petitioners’ allegations. It contended in its Replying Affidavit that no evidence was placed before the Court by the petitioners in support of their allegations. In particular, the respondent averred that:
[a] The source of the petroleum products was Mombasa; and therefore the products were not in transit as alleged by the petitioners.
[b] The policy relied on by the petitioners has not been produced before the Court or attached to the Petition.
[c] A policy document is not binding on the respondent.
[d] The aspect of double taxation does not apply in this context as the 1 st petitioner’s motor vehicles move from one county to another, enjoying services provided by those counties; and therefore the licence issued by the 1 st interested party has nothing to do with the firefighting services it provides.
[18] In the light of the foregoing, the issues for determination in the matter are:
[a] Whether the respondent clamped/detained the 1 st petitioner’s motor vehicles as alleged and if so, whether the same amounts to a violation of the 1 st petitioner’s constitutional rights.
[b] Whether, in the circumstances the 1 st petitioner is entitled to the reliefs sought.
A. Whether the respondent clamped/detained the 1 st petitioner’s motor vehicles as alleged and if so, whether the same amounts to a violation of the 1 st petitioner’s constitutional rights:
[19] The respondent having denied that it clamped or detained the 1 st petitioner’s motor vehicles, the burden of proof was on the petitioners to prove their allegations to the requisite standard. This point was made by the Supreme Court in Odinga & 5 others v Independent Electoral and Boundaries Commission & 3 others (Petition 5, 3 & 4 of 2013 (Consolidated)) [2013] KESC 6 (KLR) (16 April 2013) (Judgment) , as follows:
“…a petitioner should be under obligation to discharge the initial burden of proof, before the respondents are invited to bear the evidential burden…”
[20] Likewise, in Leonard Otieno v Airtel Kenya Limited [2018] eKLR it was emphasized that:
“65. It is a fundamental principle of law that a litigant bears the burden (or onus) of proof in respect of the propositions he asserts to prove his claim. Decisions on violation of constitutional rights should not and must not be made in a factual vacuum. To attempt to do so would trivialize the constitution and inevitably result in ill-considered opinions. The presentation of clear evidence in support of violation of constitutional rights is not, a mere technicality; rather, it is essential to a proper consideration of constitutional issues. Decisions on violation of constitutional rights cannot be based upon the unsupported hypotheses.”
[21] The Supreme Court reiterated the position in Wamwere & 5 Others v Attorney General (Petition 26, 34 & 35 of 2019 (Consolidated)) [2023] KESC 3 (KLR) (Constitutional and Human Rights) (27 January 2023) (Judgment) and held:
66. The two superior courts below were of the unanimous view that a petitioner bears the burden to prove his/her claim of alleged threat or violation of rights and freedoms to the requisite standard of proof, which is on a balance of probabilities. We affirm this juridical standpoint bearing in mind that such claims are by nature civil causes. See Deynes Muriithi & 4 others v Law Society of Kenya & another , SC Application No 12 of 2015; [2016] eKLR.
67. In this case, the onus of proof was on the 1 st appellant to adduce sufficient evidence to demonstrate that firstly, she owned or erected or lived in the alleged properties; and secondly, that state agents interfered or deprived her of the subject properties. This, as was aptly appreciated by the superior courts, is the import of section 107 of the Evidence Act on the burden of proof. The provision stipulates:
107. 1.Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
2.When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
In addition, section 109 of the Evidence Act elaborates on the onus of proof by stipulating that:
“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
[22] The petitioners deposed that the subject motor vehicles were impounded by the respondent’s officers around Mombasa Joint Depot in Changamwe. In proof thereof, they relied on the photographs marked Annexures NFM-7. I have looked at those images and note that there is no indication that the motor vehicles were clamped when the photographs were taken. The 1 st photograph is a close up view of the windscreen area of a truck. It gives no indication as to the exact motor vehicle photographed. The 2 nd photographs shows a clamped wheel but do not necessarily help identify the motor vehicle concerned.
[23] Moreover, the photographs do not have a time stamp. This omission is critical. A time stamp would have enabled the Court ascertain when and at what time the photographs were taken vis-à-vis the time and date of the alleged violations. Indeed, there is no evidence at all as to whether the photographs were generated digitally or whether they were transmitted from one information system to another. It can only be presumed that the photographs were photocopied from some original source, which is not good enough. In Samwel Kazungu Kambi v Nelly Ilongo & 2 Others [2017] eKLR such evidence was discredited by the Court thus:
“22. The source of the photocopies of the photographs annexed to the affidavit sworn by the Petitioner in support of the Petition was not disclosed. The device used to capture the images was unknown. The person who took the photographs was not named. The person who processed the images was not named. The Petitioner was not an eyewitness to the incident and he could not therefore tell the court that the photographs were a true reflection of the incident he witnessed.”
[24] Having found that none of the photographs had any indication as to the clamping of Motor Vehicle KCP 819F/ZD 4057, KCP 821F/ZD 1790 and KCP 823F/ZD 6506, the inescapable conclusion is that the petitioners have not proved their allegations to the requisite standard and are therefore not entitled to the reliefs sought in this Petition.
[25] In the result, the Amended Petition dated 30 th November 2022 is hereby dismissed with an order that each party shall bear own costs thereof.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 15 TH DAY OF SEPTEMBER 2025
'