[1] In their Petition dated 7 th September 2023, the petitioners described themselves as adult citizens of the Republic of Kenya. They filed the Petition on their own accord and on behalf of the members of Articulated and Public Service Drivers of Heavy Trucks and Public Service Vehicles (APDK/ATTIC). The respondents on the other hand are public officials and representatives of entities in the transport sector. Their particulars were set out in detail by the petitioners at paragraphs 2 to 10 of the Petition.
[2] The background of the dispute was stated at paragraphs 40 to 60 of the Petition. The petitioners thereby contended that, vide a statement published on 19 th June 2023, the 1 st respondent directed an immediate re-test of all public service and commercial vehicle drivers with effect from 20 th June 2023 upon expiry of their driving licences. They complained that the subject statement did not include in its body or otherwise, the justification for the selective re-testing of already qualified drivers, the criterial to be employed in the conduct of the selective re-testing, the professional qualifications and competence of the individuals to conduct the re-test or the involvement of representatives of the affected parties or the stakeholder union/organizations in the decision for the selective re-testing.
[3] The petitioners also took issue with the statement in so far as it required that:
[a] The periodic re-test will be mandatory, conducted every three years before licence renewal;
[b] The drivers targeted are those of matatus, taxis, commercial and School buses;
[c] Drivers will be required to apply for the re-test online via their e-citizen account at a fee of Kshs. 1,050;
[d] The re-test will be conducted in all NTSA driving test units;
[e] The re-test process shall involve the administration of both written theory examination and oral examination.
[4] The petitioners further averred in their Petition that the subject exercise commenced arbitrarily with effect from 20 th June 2023 under the directive of the 2 nd respondent; and that, meanwhile, by 3 rd March 2023 the 1 st respondent had already commenced a covert exercise directly deleting/erasing/removing the ATTIC/Articulate class from the record of already qualified commercial motor vehicle drivers; and that these activities were undertaken in total disregard of the requirement for public participation. They also complained that the 3 rd , 7 th and 8 th respondents had promptly commenced the arrest, detention and arraignment of drivers whose class qualifications had been erased from the system, notwithstanding the irregular manner in which the exercise was being handled.
[5] The petitioners also complained, in respect of the 9 th to 18 th respondents, that they were belatedly engaged by the 2 nd respondent ostensibly on behalf of the petitioners and all persons affected by the re-testing exercise. They contended that the 9 th to 18 th respondents were not democratically selected by the persons they purported to represent. Accordingly, the petitioners averred that the entire exercise was flawed and is therefore invalid, unconstitutional, null and void.
[6] In the light of the foregoing, the petitioners alleged breach of the following rights and provided detailed particulars as to the manner of violation or threatened violation:
[a] Their right to consumer protection under Article 46 of the Constitution;
[b] Their right to fair administrative Action under Article 47 of the Constitution;
[c] Their rights under Articles 27, 28, 29, 33, 39, 40, 41 and 50 of the Constitution.
[7] Therefore, the petitioners prayed for various reliefs, mainly in the nature of declaratory orders as more specifically set out in Part G of the Petition.
[8] The Petition was filed along with a Notice of Motion seeking conservatory orders pending the hearing and determination of the Petition. It is notable that before the determination of that application on 19 th January 2024, the respondents informed the Court that the impugned directive had been suspended. When the parties appeared before this Court for the first time on 19 th September 2023, Ms. Sirai made it plain that, although the implementation of the contentious directives was to commence from July 2023, the same had been suspended by the 2 nd respondent and a taskforce formed to look into the issues that had arisen around implementation. She also pointed out that the taskforce was yet to complete its work and submit a report.
[9] Because counsel for the petitioners doubted that position, given that the suspension had lapsed and the targeted drivers were still being arrested and arraigned before court, the Court granted the respondent’s time to confirm the status and report back. On the 27 th September 2023, counsel for the respondents reported that the Cabinet Secretary was intent on extending the suspension. They had no doubt that with the extension of the suspension, the petitioners’ apprehensions around the re-testing exercise would dissipate.
[10] On the 9 th October 2023, counsel for the petitioners conceded that the extension of the suspension had taken away the first limb of the instant application. Although he insisted that there were three other limbs of the application which were still contentious; namely, the issue of erasures and the arbitrary nomination of the 9 th to 18 th respondents as members of the Task Force handling the implementation of the contentious amendments. Upon determination of the application on the 19 th January 2024, directions were given for the disposal of the Petition by way of written submissions. The respondents filed Replying Affidavits/Further Replying Affidavits to consolidate their assertions for purposes of the Petition.
[11] The petitioners relied on their written submissions dated 22 nd July 2024. They put forth what they considered to be admitted facts or issues, namely:
[a] that the 2 nd respondent in conjunction with the 5 th respondent passed laws without prior public participation or adherence to the rules of law and natural justice as regards non-discriminative practices.
[b] That the 1 st respondent implemented the 2 nd respondent’s selective and discriminative law/regulations by unilaterally causing the erasure of various class qualifications from the petitioners’ driving licences.
[c] That the 3 rd , 7 th and 8 th respondents perpetrated the indiscriminate arrest, detention and prosecution of the petitioners at the whims of the 2 nd respondent.
[d] That the 4 th , 5 th and 6 th respondents failed in their mandate to offer legal guidance to the 2 nd respondent as regards promulgation of the discriminatory directives and thereby safeguard the petitioners’ inherent rights in the face of the 2 nd respondent’s discriminatory directives.
[e] The 9 th to 18 th respondents purported to represent the interests of Heavy Truck and Public Service Vehicle Drivers throughout the Republic of Kenya in “post-directive” dialogue with the 2 nd respondent without seeking and receiving such mandate from the subject individuals sought to be represented.
[12] The petitioners addressed the Court on the essence of their claim, the law and judicial precedents applicable to their claim. On selective and discriminatory, they relied on Jackline Okeyo Manani & 5 others v Attorney General and Kenya County Government Workers Union v Nairobi City County Government & another [2022] eKLR to underscore the right to equal protection and equal benefit of the law as well as the full and equal enjoyment of all rights and fundamental freedoms as enshrined in Article 27 of the Constitution.
[13] On public participation, the petitioners submitted that the legal framework for public participation is anchored on Articles 10, 27, 33, 35 and 119 of the Constitution; and that the burden of proof lies with the respondents to demonstrate that there was public participation. They relied on Ndegwa (suing on his own behalf, in the public interest and on behalf of other bar owners in Nyandarua County) v Nyandarua County Assembly & another (Petition E011 of 2021 KEHC 299 (KLR) (16 November 2021) (Judgment) and Richard Owuor & 2 others (suing on behalf of Busia Sugarcane Importers Association) v Cabinet Secretary, Ministry of Agriculture, Livestock, Fisheries & Cooperatives & 7 others [2021] eKLR to support their submission that public participation must be clear and intentional.
[14] The petitioners further submitted that it is a constitutional imperative that those most affected by a policy, legislation or action must have a bigger say in that policy, legislation or action and their views must be more deliberately sought and taken into account. They concluded their submissions by positing that they have demonstrated that failure by the 1 st respondent to, in the first instance, subject the impugned decision to public participation, stakeholder consultations and administratively fair procedures amounted to a violation of the Constitution. They accordingly urged the Court to enter judgment in their favour against the respondents jointly and severally as prayed in the Petition.
[15] The 1 st respondent’s written submissions, erroneously labelled as “1 ST RESPONDENTS FURTHER REPLYING AFFIDAVIT” are dated 18 th March 2024. They proposed the following issues for determination:
[a] Whether the Court can annul the sections of the Traffic (Amendment) Act as prayed for by the petitioners noting that the issue has already been determined in Susan Wambui Karugu & 7 others v Attorney General [2013] eKLR;
[b] Whether the petitioners have demonstrated with precision how the 1 st respondent has violated their constitutional rights;
[c] Whether the 1 st respondent and the entire Board of Management have violated the express, mandatory provisions of Sections 8, 9 or 10 of the Public Officers Ethics Act, 2013 ; and,
[d] Whether the petitioners are entitled to compensation for breach of their constitutional rights.
[16] The 1 st respondent submitted that the issue of public participation in connection with the Traffic (Amendment) Act, 2012 was the subject of consideration in the case of Susan Wambui Karugu & 7 others v Attorney General and is therefore res judicata and that on the basis of the evidence presented by the respondents, the Court ought to find that adequate public participation was undertaken. The 1 st respondent relied on Okiya Omtatah Okoiti & 4 others v Attorney General & 5 others; Council of Governors & 4 others (Interested Parties) [2020] eKLR in this regard.
[17] It was further the submission of the 1 st respondent that the Petition was not pleaded with the requisite specificity. Reliance was placed on the case of Anarita Karimi Njeru v Republic [1979] KEHC 30 (KLR), Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR as well as Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR. The 1 st respondent also submitted that its actions were well within its legal mandate and therefore cannot be said to be unconstitutional. It referred the Court to Advanced Gaming Limited v Betting Control and Licensing Board & 2 others; Safaricom Limited (Interested Party) [2019] eKLR in which it was held that:
“Judicial intervention is posited on the idea that the objective is to ensure that the agency did remain within the area assigned to it by Parliament. If the agency was within its assigned area then it was prima facie performing the tasks entrusted to it by the legislature, hence not contravening the will of Parliament. In such a case, a court will not interfere with the decision.”
[18] On the petitioners’ allegations that the 1 st respondent and its entire Board of Management have violated the provisions of Public Officer Ethics Act, the 1 st respondent’s response was tacit; namely, that breach of a statutory provision does not amount to a constitutional violation. They relied on Alice Muthoni Wahome v Attorney General & 2 others [2021] eKLR. It was therefore the submission of the 1 st respondent that the Petition lacks merit and ought to be dismissed with costs.
[19] On behalf of the 2 nd , 3 rd , 4 th and 7 th respondents, written submissions were filed herein by the Attorney General dated 18 th March 2024. In their view, the issues for determination are:
[a] Whether the decision by the Cabinet Secretary for the Ministry of Transport is ripe for determination by the Court;
[b] Whether public participation was incorporated in the decision by the Cabinet Secretary;
[c] Whether the decision by the Cabinet Secretary was in the public interest; and
[d] Whether the administrative decision by the Cabinet Secretary was within the law.
[20] According to counsel for the 2 nd , 3 rd , 4 th and 7 th respondents, the impugned amendments have been in existence since 2012; and the 1 st respondent was merely directed to commence implementation. She also pointed out that, since a multi-agency team had been established to look into the concerns raised by stakeholders in connection with the implementation process, this Petition is premature in so far as the team is yet to report back. They invoked the doctrine of exhaustion on the basis that the decision to commence implementation was reversed by the 2 nd respondent.
[21] On public participation, counsel for the 2 nd , 3 rd , 4 th and 7 th respondents also relied on Susan Wambui Kuguru & 7 others v Attorney General & another (supra) and submitted that the issue is res judicata . Counsel added that, in any event, there is ongoing public engagement around implementation by a multi-agency team; and therefore that the issue of public participation is non-justiciable. She urged the Court to take into account the public interest aspect of the matter and dismiss the Petition with costs.
[22] The 5 th respondent relied on written submissions dated 11 th March 2024 which were also referred to as the “5 TH RESPONDENT’S REPLYING AFFIDAVIT”. The 5 th respondent proposed the following issues for determination:
[a] Whether the suit is res judicata;
[b] Whether there was public participation; and
[c] Whether the Court should grant the orders sought.
[23] The 5 th respondent was also of the view that the Petition is res judicata , since the issue of public participation in respect of the impugned legislation was determined in Susan Wambui Kaguru & 7 others v Attorney General & another (supra). Accordingly, the 5 th respondent took the view that the Court is divested of jurisdiction to determine the Petition. The 5 th respondent then proceeded to demonstrate that, in any event, when the impugned legislation was passed, the requirements of the Constitution as to public participation had been exempted by dint of Section 2(1)(b) of the Sixth Schedule to the Constitution. Counsel pointed out that the Traffic (Amendment) Act, No. 38 of 2012, was assented to by the President on 1 st November 2012, which was four months before the first general election under the new Constitution. In this regard, the 5 th respondent relied on Public Service Commission & 4 others v Cheruiyot & 32 others (Civil Appeal 119 & 139 of 2017 (Consolidated) [2022] KECA 15 (KLR).
[24] On whether the Court should grant the orders sought, counsel for the 5 th respondent submitted on the role of the 5 th respondent as an ex officio member of the National Assembly, as provided for in Article 97(1)(d) of the Constitution; and underscored the fact that he merely presides over the business of the National Assembly in accordance with Article 107 of the Constitution. Accordingly, counsel urged the Court to find that the petitioners’ prayer for the 5 th respondent to be declared unfit to hold office is misconceived. She prayed for the dismissal of the Petition with costs to the 5 th respondent.
[25] From the above summary of the respondents’ respective cases, the 5 points put forth in the written submissions of the petitioners as admissions can hardly be said to be admitted facts. This is because, whereas the Traffic Act was amended as conceded by the respondents, the parties took divergent positions on the issue of public participation. Similarly, although the 1 st and 2 nd respondents conceded that directives for implementation of the law as amended were issued by the 2 nd respondent; which the 1 st respondent proceeded to implement, the 1 st and 2 nd respondents denied that they acted unilaterally or in a discriminate manner.
[26] Moreover, in distilling the issues for determination, the Court has to take into consideration that most of the issues of concern to the petitioners have been overtaken by events and are therefore moot. In particular, it is no longer in contention that the directive to conduct selective re-testing of already qualified drivers and the arbitrarily deletion/erasure/removal of class qualification from the driving licences of all already-qualified drivers have been suspended/corrected. Accordingly, the only aspects of the Petition pending consideration are their assertions that:
[a] The formulation of law to conduct selective re-testing was done without the necessary prior public participation and was therefore unconstitutional, null and void; and,
[b] whether the selection of the 9 th -18 th respondents as stakeholder representatives in the stakeholder forum was arbitrarily done.
[27] The parties having raised technical objection to the Petition, the Court is obliged to consider the same before a determination of the Petition on the merits can be done. The two technical issues are:
[a] Whether the Petition is competent in terms of specificity.
[b] Whether the issue of public participation is res judicata;
[28] The 2 nd respondent raised the issue whether the Petition complies with Anarita Karimi Njeru v Republic [1976-1980] KLR 1272 in terms of specificity. This being an issue touching on the jurisdiction of the Court must be disposed of before a merit consideration of the Petition. In that case, the Court of Appeal held:
“…if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”
[29] A perusal of the Petition reveals that the petitioners did set out in detail the capacity in which they approached the Court, the applicable provisions of the Constitution which they alleged to have been infringed, the exact nature of the alleged violation, infringement or threats of contraventions alleged, as well as the provisions pursuant to which they seek relief. Moreover, the exact nature of the remedies sought were also set out by the petitioners at Part G of their Petition. Accordingly, the Petition cannot be faulted on the ground of specificity.
[30] In this respect, I am in agreement with the position taken by Hon. Odunga, J . in Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & Another [2016] eKLR that:
“On the issue whether this Court can determine the constitutional issues raised without compliance with the requirements stipulated in Anarita Karimi Njeru vs. Attorney General (supra), it is my view that the said decision must now be read in light of the provisions of Article 22(3)(b) and (d) of the Constitution under which the Chief Justice is enjoined to make rules providing for the court proceedings which satisfy the criteria that formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of informal documentation and that the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities. Whereas it is prudent that the applicant ought to set out with reasonable degree of precision that of which he complains, the provision said to be infringed and the manner in which they are alleged to be infringed, to dismiss a petition merely because these requirements are not adhered to would in my view defeat the spirit of Article 22(3)(b) under which these proceedings may even be commenced on the basis of informal documentation…”
[31] And, in the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR the Court of Appeal held that:
“We cannot but emphasize the importance of precise claims in due process, substantive justice, and the exercise of jurisdiction by a court. In essence, due process, substantive justice and the exercise of jurisdiction are a function of precise legal and factual claims. However, we also note that precision is not coterminous with exactitude. Restated, although precision must remain a requirement as it is important, it demands neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated. We speak particularly knowing that the whole function of pleadings, hearings, submissions and the judicial decision is to define issues in litigation and adjudication, and to demand exactitude ex ante is to miss the point.”
[32] I therefore find no merit on that ground. It was also the contention of the respondents that the issue of public participation is res judicata, having been finally decided in Susan Wambui Kaguru & 7 others v Attorney General & another [2013] eKLR.
[33] Res judicata is likewise a plea that goes to the jurisdiction of the Court which, if successfully raised, has the potential of disposing of the entire suit; for Section 7 of the Civil Procedure Act, Chapter 21 of the Laws of Kenya, provides that:
“No Court shall try any suit or issue in which the matter in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title…and has been heard and finally decided by such Court.”
[34] As to whether the doctrine is applicable to constitutional petitions, the Supreme Court pronounced itself in John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment), as follows:
“82. If we were to find that the doctrine does not apply to constitutional litigation, the doctrine may very well lose much of its legitimacy and validity. We say this in light of the fact that constitutional tenets permeate all litigation starting with the application of article 159 of the Constitution in both civil and criminal litigation, and its application now embedded in all procedural statutes. Further article 50 on right to fair hearing and article 48 on access to justice are fundamental rights which every litigant is entitled to. Such a holding may very well lead to parties, that whenever they need to circumscribe the doctrine of res judicata, they only need to invoke some constitutional provision or other.”
[35] It is now settled that to ascertain whether or not a suit or issue is res judicata, the parameters to scrutinize are:
[a] Whether the subject matter is identical in both suits.
[b] Whether the parties in the suits are substantially the same.
[d] Whether there is a final determination on the recurring issues.
(see Bernard Mugo Ndegwa v James Nderitu Githae and 2 Others [2010] eKLR).
[36] Similarly, in John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment), the Supreme Court held:
“59. For res judicata to be invoked in a civil matter the following elements must be demonstrated:
a) There is a former Judgment or order which was final;
b) The Judgment or order was on merit;
c) The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and
d) There must be between the first and the second action identical parties, subject matter and cause of action.
(See Uhuru Highway Developers Limited v Central Bank of Kenya & others [1999] eKLR and See the decision of the Court of Appeal in Nicholas Njeru v Attorney General & 8 others Civil Appeal 110 of 2011 (2013) eKLR”
[37] In Susan Wambui Kaguru & 7 others v Attorney General & another by Hon. Majanja, J. as follows:
22. As regards the issue of public participation raised by the petitioners I will re-state what I said in the case of Law Society of Kenya v Attorney General Nairobi Petition No. 318 of 2012 (Unreported), “[51] In order to determine whether there has been public participation, the court is required to interrogate the entire process leading to the enactment of the legislation; from the formulation of the legislation to the process of enactment of the statute ……. [52] The burden of showing that there has been no public participation or that the level public participation within the process does not meet the constitutional standards is on the petitioner.”
23. From the petitioners’ own documents it is clear that the amendment to the Traffic Act have been part of the overall transport policy. The petitioners in Petition No. 545 of 2012 refer to the Integrated National Transport Policy dated May 2009 and the Sessional Paper on Integrated National Transport Policy dated November 2010 which are available on the Ministry website. In my view, these are the kind of documents that engender public debate and enhance public participation. The Permanent Secretary, in his deposition, has also shown that the Ministry organised a conference for stakeholders to discuss road safety. The resulting legislation was built upon these initiatives. It cannot therefore be said that there was no public participation.
24. In Commission for the Implementation of the Constitution v Parliament of Kenya and Another Nairobi Petition No. 454 of 2012 (Unreported), I observed as follows,“I must state that although the Act was condemned on the basis of lack of public participation, the parties who impugned the Act on the basis did not demonstrate to the Court how the National Assembly had failed to achieve public participation within the constitutional parameters taking into account the process from the time the bill was initiated by the CIC upto its enactment. The parties did not address me on the standard to apply in order to assess the level of public participation in the legislative process. I am therefore unable to find and hold that the Act is unconstitutional for want of public participation.” The petitioners have not demonstrated what standard or whether what was done effectively undermined the value of public participation. I find no reason to impugn the legislature on this basis .
25. I am afraid that the petitioners have not made out a case warranting the annulment of Traffic (Amendment) Act, Act No. 37 of 2012 and The Traffic (Amendment) (No. 2) Act, Act No. 38 of 2012 .
26. The petitions be and are hereby dismissed. There shall be no order as to costs.”
[38] It is indubitable therefore that indeed the issue of public participation in respect of the Traffic (Amendment) Act No. 37 of 2012 and the Traffic (Amendment) Act No. 38 of 2012 is res judicata , notwithstanding that the parties herein were never parties to the previous Petition. This is because the 6 th explanation to Section 7 of the Civil Procedure Act is explicit that:
“Explanation. — (6) Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.”
[39] In John Florence the Supreme further held:
“81. We reaffirm our position as in the Muiri Coffee case that the doctrine of res judicata is based on the principle of finality which is a matter of public policy. The principle of finality is one of the pillars upon which our judicial system is founded and the doctrine of res judicata prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively. To further bolster our position we borrow from the decision from India in Karam Chand another v Union Of India and others on 24 April, 2014 where it was restated the principles upon which the doctrine of res judicata is founded as follows:
“29. ......it is clear that the rule of res judicata is mandatory in its application and should be invoked in the interest of public policy and finality. The matters which have actually been decided would also apply to the matters which have been impliedly and constructively decided by the court. These principles are to be applied to preserve the doctrine of finality rather than frustrate the same. The doctrine of res judicata is the combined result of public policy so as to prevent repeated taxing of a person to litigation. It is primarily founded on the following three maxims:
(1) nemo debet bis vexari pro una et eadem causa : no man should be vexed twice for the same cause.
(2) interest republicae ut sit finis litium : it is in the interest of the State that there should be an end to a litigation; and
(3) res judicata pro veritate occipitur : a judicial decision must be accepted as correct.
...The doctrine of res judicata is conceived not only in the larger public interest which requires that all litigation must sooner than later come to an end but is also founded on equity, justice and good conscience.”
[40] The foregoing being my v
[...truncated]
[2] The background of the dispute was stated at paragraphs 40 to 60 of the Petition. The petitioners thereby contended that, vide a statement published on 19 th June 2023, the 1 st respondent directed an immediate re-test of all public service and commercial vehicle drivers with effect from 20 th June 2023 upon expiry of their driving licences. They complained that the subject statement did not include in its body or otherwise, the justification for the selective re-testing of already qualified drivers, the criterial to be employed in the conduct of the selective re-testing, the professional qualifications and competence of the individuals to conduct the re-test or the involvement of representatives of the affected parties or the stakeholder union/organizations in the decision for the selective re-testing.
[3] The petitioners also took issue with the statement in so far as it required that:
[a] The periodic re-test will be mandatory, conducted every three years before licence renewal;
[b] The drivers targeted are those of matatus, taxis, commercial and School buses;
[c] Drivers will be required to apply for the re-test online via their e-citizen account at a fee of Kshs. 1,050;
[d] The re-test will be conducted in all NTSA driving test units;
[e] The re-test process shall involve the administration of both written theory examination and oral examination.
[4] The petitioners further averred in their Petition that the subject exercise commenced arbitrarily with effect from 20 th June 2023 under the directive of the 2 nd respondent; and that, meanwhile, by 3 rd March 2023 the 1 st respondent had already commenced a covert exercise directly deleting/erasing/removing the ATTIC/Articulate class from the record of already qualified commercial motor vehicle drivers; and that these activities were undertaken in total disregard of the requirement for public participation. They also complained that the 3 rd , 7 th and 8 th respondents had promptly commenced the arrest, detention and arraignment of drivers whose class qualifications had been erased from the system, notwithstanding the irregular manner in which the exercise was being handled.
[5] The petitioners also complained, in respect of the 9 th to 18 th respondents, that they were belatedly engaged by the 2 nd respondent ostensibly on behalf of the petitioners and all persons affected by the re-testing exercise. They contended that the 9 th to 18 th respondents were not democratically selected by the persons they purported to represent. Accordingly, the petitioners averred that the entire exercise was flawed and is therefore invalid, unconstitutional, null and void.
[6] In the light of the foregoing, the petitioners alleged breach of the following rights and provided detailed particulars as to the manner of violation or threatened violation:
[a] Their right to consumer protection under Article 46 of the Constitution;
[b] Their right to fair administrative Action under Article 47 of the Constitution;
[c] Their rights under Articles 27, 28, 29, 33, 39, 40, 41 and 50 of the Constitution.
[7] Therefore, the petitioners prayed for various reliefs, mainly in the nature of declaratory orders as more specifically set out in Part G of the Petition.
[8] The Petition was filed along with a Notice of Motion seeking conservatory orders pending the hearing and determination of the Petition. It is notable that before the determination of that application on 19 th January 2024, the respondents informed the Court that the impugned directive had been suspended. When the parties appeared before this Court for the first time on 19 th September 2023, Ms. Sirai made it plain that, although the implementation of the contentious directives was to commence from July 2023, the same had been suspended by the 2 nd respondent and a taskforce formed to look into the issues that had arisen around implementation. She also pointed out that the taskforce was yet to complete its work and submit a report.
[9] Because counsel for the petitioners doubted that position, given that the suspension had lapsed and the targeted drivers were still being arrested and arraigned before court, the Court granted the respondent’s time to confirm the status and report back. On the 27 th September 2023, counsel for the respondents reported that the Cabinet Secretary was intent on extending the suspension. They had no doubt that with the extension of the suspension, the petitioners’ apprehensions around the re-testing exercise would dissipate.
[10] On the 9 th October 2023, counsel for the petitioners conceded that the extension of the suspension had taken away the first limb of the instant application. Although he insisted that there were three other limbs of the application which were still contentious; namely, the issue of erasures and the arbitrary nomination of the 9 th to 18 th respondents as members of the Task Force handling the implementation of the contentious amendments. Upon determination of the application on the 19 th January 2024, directions were given for the disposal of the Petition by way of written submissions. The respondents filed Replying Affidavits/Further Replying Affidavits to consolidate their assertions for purposes of the Petition.
[11] The petitioners relied on their written submissions dated 22 nd July 2024. They put forth what they considered to be admitted facts or issues, namely:
[a] that the 2 nd respondent in conjunction with the 5 th respondent passed laws without prior public participation or adherence to the rules of law and natural justice as regards non-discriminative practices.
[b] That the 1 st respondent implemented the 2 nd respondent’s selective and discriminative law/regulations by unilaterally causing the erasure of various class qualifications from the petitioners’ driving licences.
[c] That the 3 rd , 7 th and 8 th respondents perpetrated the indiscriminate arrest, detention and prosecution of the petitioners at the whims of the 2 nd respondent.
[d] That the 4 th , 5 th and 6 th respondents failed in their mandate to offer legal guidance to the 2 nd respondent as regards promulgation of the discriminatory directives and thereby safeguard the petitioners’ inherent rights in the face of the 2 nd respondent’s discriminatory directives.
[e] The 9 th to 18 th respondents purported to represent the interests of Heavy Truck and Public Service Vehicle Drivers throughout the Republic of Kenya in “post-directive” dialogue with the 2 nd respondent without seeking and receiving such mandate from the subject individuals sought to be represented.
[12] The petitioners addressed the Court on the essence of their claim, the law and judicial precedents applicable to their claim. On selective and discriminatory, they relied on Jackline Okeyo Manani & 5 others v Attorney General and Kenya County Government Workers Union v Nairobi City County Government & another [2022] eKLR to underscore the right to equal protection and equal benefit of the law as well as the full and equal enjoyment of all rights and fundamental freedoms as enshrined in Article 27 of the Constitution.
[13] On public participation, the petitioners submitted that the legal framework for public participation is anchored on Articles 10, 27, 33, 35 and 119 of the Constitution; and that the burden of proof lies with the respondents to demonstrate that there was public participation. They relied on Ndegwa (suing on his own behalf, in the public interest and on behalf of other bar owners in Nyandarua County) v Nyandarua County Assembly & another (Petition E011 of 2021 KEHC 299 (KLR) (16 November 2021) (Judgment) and Richard Owuor & 2 others (suing on behalf of Busia Sugarcane Importers Association) v Cabinet Secretary, Ministry of Agriculture, Livestock, Fisheries & Cooperatives & 7 others [2021] eKLR to support their submission that public participation must be clear and intentional.
[14] The petitioners further submitted that it is a constitutional imperative that those most affected by a policy, legislation or action must have a bigger say in that policy, legislation or action and their views must be more deliberately sought and taken into account. They concluded their submissions by positing that they have demonstrated that failure by the 1 st respondent to, in the first instance, subject the impugned decision to public participation, stakeholder consultations and administratively fair procedures amounted to a violation of the Constitution. They accordingly urged the Court to enter judgment in their favour against the respondents jointly and severally as prayed in the Petition.
[15] The 1 st respondent’s written submissions, erroneously labelled as “1 ST RESPONDENTS FURTHER REPLYING AFFIDAVIT” are dated 18 th March 2024. They proposed the following issues for determination:
[a] Whether the Court can annul the sections of the Traffic (Amendment) Act as prayed for by the petitioners noting that the issue has already been determined in Susan Wambui Karugu & 7 others v Attorney General [2013] eKLR;
[b] Whether the petitioners have demonstrated with precision how the 1 st respondent has violated their constitutional rights;
[c] Whether the 1 st respondent and the entire Board of Management have violated the express, mandatory provisions of Sections 8, 9 or 10 of the Public Officers Ethics Act, 2013 ; and,
[d] Whether the petitioners are entitled to compensation for breach of their constitutional rights.
[16] The 1 st respondent submitted that the issue of public participation in connection with the Traffic (Amendment) Act, 2012 was the subject of consideration in the case of Susan Wambui Karugu & 7 others v Attorney General and is therefore res judicata and that on the basis of the evidence presented by the respondents, the Court ought to find that adequate public participation was undertaken. The 1 st respondent relied on Okiya Omtatah Okoiti & 4 others v Attorney General & 5 others; Council of Governors & 4 others (Interested Parties) [2020] eKLR in this regard.
[17] It was further the submission of the 1 st respondent that the Petition was not pleaded with the requisite specificity. Reliance was placed on the case of Anarita Karimi Njeru v Republic [1979] KEHC 30 (KLR), Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR as well as Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR. The 1 st respondent also submitted that its actions were well within its legal mandate and therefore cannot be said to be unconstitutional. It referred the Court to Advanced Gaming Limited v Betting Control and Licensing Board & 2 others; Safaricom Limited (Interested Party) [2019] eKLR in which it was held that:
“Judicial intervention is posited on the idea that the objective is to ensure that the agency did remain within the area assigned to it by Parliament. If the agency was within its assigned area then it was prima facie performing the tasks entrusted to it by the legislature, hence not contravening the will of Parliament. In such a case, a court will not interfere with the decision.”
[18] On the petitioners’ allegations that the 1 st respondent and its entire Board of Management have violated the provisions of Public Officer Ethics Act, the 1 st respondent’s response was tacit; namely, that breach of a statutory provision does not amount to a constitutional violation. They relied on Alice Muthoni Wahome v Attorney General & 2 others [2021] eKLR. It was therefore the submission of the 1 st respondent that the Petition lacks merit and ought to be dismissed with costs.
[19] On behalf of the 2 nd , 3 rd , 4 th and 7 th respondents, written submissions were filed herein by the Attorney General dated 18 th March 2024. In their view, the issues for determination are:
[a] Whether the decision by the Cabinet Secretary for the Ministry of Transport is ripe for determination by the Court;
[b] Whether public participation was incorporated in the decision by the Cabinet Secretary;
[c] Whether the decision by the Cabinet Secretary was in the public interest; and
[d] Whether the administrative decision by the Cabinet Secretary was within the law.
[20] According to counsel for the 2 nd , 3 rd , 4 th and 7 th respondents, the impugned amendments have been in existence since 2012; and the 1 st respondent was merely directed to commence implementation. She also pointed out that, since a multi-agency team had been established to look into the concerns raised by stakeholders in connection with the implementation process, this Petition is premature in so far as the team is yet to report back. They invoked the doctrine of exhaustion on the basis that the decision to commence implementation was reversed by the 2 nd respondent.
[21] On public participation, counsel for the 2 nd , 3 rd , 4 th and 7 th respondents also relied on Susan Wambui Kuguru & 7 others v Attorney General & another (supra) and submitted that the issue is res judicata . Counsel added that, in any event, there is ongoing public engagement around implementation by a multi-agency team; and therefore that the issue of public participation is non-justiciable. She urged the Court to take into account the public interest aspect of the matter and dismiss the Petition with costs.
[22] The 5 th respondent relied on written submissions dated 11 th March 2024 which were also referred to as the “5 TH RESPONDENT’S REPLYING AFFIDAVIT”. The 5 th respondent proposed the following issues for determination:
[a] Whether the suit is res judicata;
[b] Whether there was public participation; and
[c] Whether the Court should grant the orders sought.
[23] The 5 th respondent was also of the view that the Petition is res judicata , since the issue of public participation in respect of the impugned legislation was determined in Susan Wambui Kaguru & 7 others v Attorney General & another (supra). Accordingly, the 5 th respondent took the view that the Court is divested of jurisdiction to determine the Petition. The 5 th respondent then proceeded to demonstrate that, in any event, when the impugned legislation was passed, the requirements of the Constitution as to public participation had been exempted by dint of Section 2(1)(b) of the Sixth Schedule to the Constitution. Counsel pointed out that the Traffic (Amendment) Act, No. 38 of 2012, was assented to by the President on 1 st November 2012, which was four months before the first general election under the new Constitution. In this regard, the 5 th respondent relied on Public Service Commission & 4 others v Cheruiyot & 32 others (Civil Appeal 119 & 139 of 2017 (Consolidated) [2022] KECA 15 (KLR).
[24] On whether the Court should grant the orders sought, counsel for the 5 th respondent submitted on the role of the 5 th respondent as an ex officio member of the National Assembly, as provided for in Article 97(1)(d) of the Constitution; and underscored the fact that he merely presides over the business of the National Assembly in accordance with Article 107 of the Constitution. Accordingly, counsel urged the Court to find that the petitioners’ prayer for the 5 th respondent to be declared unfit to hold office is misconceived. She prayed for the dismissal of the Petition with costs to the 5 th respondent.
[25] From the above summary of the respondents’ respective cases, the 5 points put forth in the written submissions of the petitioners as admissions can hardly be said to be admitted facts. This is because, whereas the Traffic Act was amended as conceded by the respondents, the parties took divergent positions on the issue of public participation. Similarly, although the 1 st and 2 nd respondents conceded that directives for implementation of the law as amended were issued by the 2 nd respondent; which the 1 st respondent proceeded to implement, the 1 st and 2 nd respondents denied that they acted unilaterally or in a discriminate manner.
[26] Moreover, in distilling the issues for determination, the Court has to take into consideration that most of the issues of concern to the petitioners have been overtaken by events and are therefore moot. In particular, it is no longer in contention that the directive to conduct selective re-testing of already qualified drivers and the arbitrarily deletion/erasure/removal of class qualification from the driving licences of all already-qualified drivers have been suspended/corrected. Accordingly, the only aspects of the Petition pending consideration are their assertions that:
[a] The formulation of law to conduct selective re-testing was done without the necessary prior public participation and was therefore unconstitutional, null and void; and,
[b] whether the selection of the 9 th -18 th respondents as stakeholder representatives in the stakeholder forum was arbitrarily done.
[27] The parties having raised technical objection to the Petition, the Court is obliged to consider the same before a determination of the Petition on the merits can be done. The two technical issues are:
[a] Whether the Petition is competent in terms of specificity.
[b] Whether the issue of public participation is res judicata;
[28] The 2 nd respondent raised the issue whether the Petition complies with Anarita Karimi Njeru v Republic [1976-1980] KLR 1272 in terms of specificity. This being an issue touching on the jurisdiction of the Court must be disposed of before a merit consideration of the Petition. In that case, the Court of Appeal held:
“…if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”
[29] A perusal of the Petition reveals that the petitioners did set out in detail the capacity in which they approached the Court, the applicable provisions of the Constitution which they alleged to have been infringed, the exact nature of the alleged violation, infringement or threats of contraventions alleged, as well as the provisions pursuant to which they seek relief. Moreover, the exact nature of the remedies sought were also set out by the petitioners at Part G of their Petition. Accordingly, the Petition cannot be faulted on the ground of specificity.
[30] In this respect, I am in agreement with the position taken by Hon. Odunga, J . in Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & Another [2016] eKLR that:
“On the issue whether this Court can determine the constitutional issues raised without compliance with the requirements stipulated in Anarita Karimi Njeru vs. Attorney General (supra), it is my view that the said decision must now be read in light of the provisions of Article 22(3)(b) and (d) of the Constitution under which the Chief Justice is enjoined to make rules providing for the court proceedings which satisfy the criteria that formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of informal documentation and that the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities. Whereas it is prudent that the applicant ought to set out with reasonable degree of precision that of which he complains, the provision said to be infringed and the manner in which they are alleged to be infringed, to dismiss a petition merely because these requirements are not adhered to would in my view defeat the spirit of Article 22(3)(b) under which these proceedings may even be commenced on the basis of informal documentation…”
[31] And, in the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR the Court of Appeal held that:
“We cannot but emphasize the importance of precise claims in due process, substantive justice, and the exercise of jurisdiction by a court. In essence, due process, substantive justice and the exercise of jurisdiction are a function of precise legal and factual claims. However, we also note that precision is not coterminous with exactitude. Restated, although precision must remain a requirement as it is important, it demands neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated. We speak particularly knowing that the whole function of pleadings, hearings, submissions and the judicial decision is to define issues in litigation and adjudication, and to demand exactitude ex ante is to miss the point.”
[32] I therefore find no merit on that ground. It was also the contention of the respondents that the issue of public participation is res judicata, having been finally decided in Susan Wambui Kaguru & 7 others v Attorney General & another [2013] eKLR.
[33] Res judicata is likewise a plea that goes to the jurisdiction of the Court which, if successfully raised, has the potential of disposing of the entire suit; for Section 7 of the Civil Procedure Act, Chapter 21 of the Laws of Kenya, provides that:
“No Court shall try any suit or issue in which the matter in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title…and has been heard and finally decided by such Court.”
[34] As to whether the doctrine is applicable to constitutional petitions, the Supreme Court pronounced itself in John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment), as follows:
“82. If we were to find that the doctrine does not apply to constitutional litigation, the doctrine may very well lose much of its legitimacy and validity. We say this in light of the fact that constitutional tenets permeate all litigation starting with the application of article 159 of the Constitution in both civil and criminal litigation, and its application now embedded in all procedural statutes. Further article 50 on right to fair hearing and article 48 on access to justice are fundamental rights which every litigant is entitled to. Such a holding may very well lead to parties, that whenever they need to circumscribe the doctrine of res judicata, they only need to invoke some constitutional provision or other.”
[35] It is now settled that to ascertain whether or not a suit or issue is res judicata, the parameters to scrutinize are:
[a] Whether the subject matter is identical in both suits.
[b] Whether the parties in the suits are substantially the same.
[d] Whether there is a final determination on the recurring issues.
(see Bernard Mugo Ndegwa v James Nderitu Githae and 2 Others [2010] eKLR).
[36] Similarly, in John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment), the Supreme Court held:
“59. For res judicata to be invoked in a civil matter the following elements must be demonstrated:
a) There is a former Judgment or order which was final;
b) The Judgment or order was on merit;
c) The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and
d) There must be between the first and the second action identical parties, subject matter and cause of action.
(See Uhuru Highway Developers Limited v Central Bank of Kenya & others [1999] eKLR and See the decision of the Court of Appeal in Nicholas Njeru v Attorney General & 8 others Civil Appeal 110 of 2011 (2013) eKLR”
[37] In Susan Wambui Kaguru & 7 others v Attorney General & another by Hon. Majanja, J. as follows:
22. As regards the issue of public participation raised by the petitioners I will re-state what I said in the case of Law Society of Kenya v Attorney General Nairobi Petition No. 318 of 2012 (Unreported), “[51] In order to determine whether there has been public participation, the court is required to interrogate the entire process leading to the enactment of the legislation; from the formulation of the legislation to the process of enactment of the statute ……. [52] The burden of showing that there has been no public participation or that the level public participation within the process does not meet the constitutional standards is on the petitioner.”
23. From the petitioners’ own documents it is clear that the amendment to the Traffic Act have been part of the overall transport policy. The petitioners in Petition No. 545 of 2012 refer to the Integrated National Transport Policy dated May 2009 and the Sessional Paper on Integrated National Transport Policy dated November 2010 which are available on the Ministry website. In my view, these are the kind of documents that engender public debate and enhance public participation. The Permanent Secretary, in his deposition, has also shown that the Ministry organised a conference for stakeholders to discuss road safety. The resulting legislation was built upon these initiatives. It cannot therefore be said that there was no public participation.
24. In Commission for the Implementation of the Constitution v Parliament of Kenya and Another Nairobi Petition No. 454 of 2012 (Unreported), I observed as follows,“I must state that although the Act was condemned on the basis of lack of public participation, the parties who impugned the Act on the basis did not demonstrate to the Court how the National Assembly had failed to achieve public participation within the constitutional parameters taking into account the process from the time the bill was initiated by the CIC upto its enactment. The parties did not address me on the standard to apply in order to assess the level of public participation in the legislative process. I am therefore unable to find and hold that the Act is unconstitutional for want of public participation.” The petitioners have not demonstrated what standard or whether what was done effectively undermined the value of public participation. I find no reason to impugn the legislature on this basis .
25. I am afraid that the petitioners have not made out a case warranting the annulment of Traffic (Amendment) Act, Act No. 37 of 2012 and The Traffic (Amendment) (No. 2) Act, Act No. 38 of 2012 .
26. The petitions be and are hereby dismissed. There shall be no order as to costs.”
[38] It is indubitable therefore that indeed the issue of public participation in respect of the Traffic (Amendment) Act No. 37 of 2012 and the Traffic (Amendment) Act No. 38 of 2012 is res judicata , notwithstanding that the parties herein were never parties to the previous Petition. This is because the 6 th explanation to Section 7 of the Civil Procedure Act is explicit that:
“Explanation. — (6) Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.”
[39] In John Florence the Supreme further held:
“81. We reaffirm our position as in the Muiri Coffee case that the doctrine of res judicata is based on the principle of finality which is a matter of public policy. The principle of finality is one of the pillars upon which our judicial system is founded and the doctrine of res judicata prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively. To further bolster our position we borrow from the decision from India in Karam Chand another v Union Of India and others on 24 April, 2014 where it was restated the principles upon which the doctrine of res judicata is founded as follows:
“29. ......it is clear that the rule of res judicata is mandatory in its application and should be invoked in the interest of public policy and finality. The matters which have actually been decided would also apply to the matters which have been impliedly and constructively decided by the court. These principles are to be applied to preserve the doctrine of finality rather than frustrate the same. The doctrine of res judicata is the combined result of public policy so as to prevent repeated taxing of a person to litigation. It is primarily founded on the following three maxims:
(1) nemo debet bis vexari pro una et eadem causa : no man should be vexed twice for the same cause.
(2) interest republicae ut sit finis litium : it is in the interest of the State that there should be an end to a litigation; and
(3) res judicata pro veritate occipitur : a judicial decision must be accepted as correct.
...The doctrine of res judicata is conceived not only in the larger public interest which requires that all litigation must sooner than later come to an end but is also founded on equity, justice and good conscience.”
[40] The foregoing being my v
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