DRAFTDRAFT
Introduction
1. The Petition dated 31 st October 2024, concerns the regulation of transport network companies operating within Kenya, including digital ride-hailing platforms such as the 2 nd to 7 th Respondents.
2. The Petitioners challenge the manner the 1 st Respondent has been discharging its statutory mandate under the National Transport and Safety Authority Act and the National Transport and Safety Authority (Transport Network Companies, Owners, Drivers and Passengers) Regulations, 2022 .
3. In essence, the Petitioners contend that the 1 st Respondent has licensed and renewed the licenses of the 2 nd to 7 th Respondents notwithstanding the failure to comply with the mandatory requirements prescribed under the Act and the Regulations and as such exposing members of the public to unsafe transport services thereby violating their fundamental rights under Articles 26, 29, 40, 43, 46 and 47 of the Constitution. Consequently, the Petitioners seek the following reliefs:
i. A declaration that the Petitioners fundamental rights and freedoms under Articles 26, 29, 40, 43, 46, and 47 have been infringed upon and/or are in danger of being infringed upon by the Respondents.
ii. An order of certiorari be issued bringing to this court for quashing transport network licences issued to any of the 2 nd to 7 th Respondents, by the 1 st Respondent, if they have not complied with the National Transport and Safety Authority Act and the National Transport and Safety Authority (Transport Network Companies, Owners, Drivers and Passengers) Regulations, 2022.
iii. An order of prohibition prohibiting the 1 st Respondent from issuing and/or renewing any transport network licences to any of the 2 nd to 7 th Respondents, if they have not complied with the National Transport and Safety Authority Act and the National Transport and Safety Authority (Transport Network Companies, Owners, Drivers and Passengers) Regulations, 2022.
iv. An order of mandamus directed to the 1 st Respondent to ensure the 2 nd to 7 th Respondents comply with the National Transport and Safety Authority Act and the National Transport and Safety Authority (Transport Network Companies, Owners, Drivers and Passengers) Regulations, 2022 forthwith and on a yearly basis.
v. Damages.
vi. Costs of this Petition.
The Application
4. The Petitioners in the Notice of Motion Application filed on even date with this Petition, seek the following orders:
i. Spent.
ii. Pending hearing and determination of this Application, this Court do issue conservatory orders stopping issuance of, renewal of, and/ or suspending already issued, transport network licences to the any of the 2 nd to 7 th Respondents, by the 1 st Respondent, if they have not complied with the National Transport and Safety Authority Act and the National Transport and Safety Authority (Transport Network Companies, Owners, Drivers and Passengers) Regulations, 2022.
iii. Pending hearing and determination of this Petition, this Court do issue conservatory orders stopping issuance of, renewal of, and/ or suspending already issued, transport network licences to the any of the 2 nd to 7 th Respondents, by the 1 st Respondent, if they have not complied with the National Transport and Safety Authority Act and the National Transport and Safety Authority (Transport Network Companies, Owners, Drivers and Passengers) Regulations, 2022.
iv. Pending hearing and determination of this Application, the 1 st Respondent do deposit with this court for safe keeping, and perusal by the parties herein, copies of applications by the 2 nd to 7 th Respondent for transport network licenses for the years 2023/2024 and 2024/2025.
v. Pending hearing and determination of this Petition, the 1 st Respondent do deposit with this court for safe keeping, and perusal by the parties herein, copies of applications by the 2 nd to 7 th Respondent for transport network licenses for the years 2023/2024 and 2024/2025.
vi. Pending hearing and determination of this Application, the 1 st Respondent do deposit with this court for safe keeping, and perusal by the parties herein, copies of the audits of the 2 nd to 7 th Respondents contemplated by Regulation 12(3) of the National Transport and Safety Authority (Transport Network Companies, Owners, Drivers and Passengers) Regulations, 2022, for the years 2023/2024 and 2024/2025.
vii. Pending hearing and determination of this Petition, the 1 st Respondent do deposit with this court for safe keeping, and perusal by the parties herein, copies of the audits of the 2 nd to 7 th Respondents contemplated by Regulation 12(3) of the National Transport and Safety Authority (Transport Network Companies, Owners, Drivers and Passengers) Regulations, 2022, for the years 2023/2024 and 2024/2025 .
viii. Costs of this Application be provided for.
5. The Application is supported by the 1 st Petitioner’s affidavit, sworn on even date and the grounds on the face of the Application.
6. The 1 st Petitioner avers that the Petitioners are officials of an organization called Organization of Online Drivers and bring this Petition on behalf of transport network drivers and owners and the general public.
7. They make reference to section 4 of the National Transport and Safety Authority Act as read with Rules 5, 6, 7, and 8 of the National Transport and Safety Authority (Transport Network Companies, Owners, Drivers and Passengers) Regulations, 2022 which mandate the 1 st Respondent to issue transport network licenses.
8. According to the Petitioners, the that the 1 st Respondent has been issuing licenses to the 2 nd to 7 th Respondent closing its eyes to their non-compliance with the mandatory licensing and operational requirements prescribed under Regulations 7, 8, 9, 12, 14, 16 and 18 of the National Transport and Safety Authority (Transport Network Companies, Owners, Drivers and Passengers) Regulations, 2022.
9. The Petitioners contend that this continued non-compliance has resulted in unsafe transport services , arbitrary suspension and deactivation of drivers without due process , inadequate security and complaint-handling mechanisms , excessive commissions , unfair pricing practices and failure to comply with statutory reporting obligations .
10. The Petitioners maintain that unless the conservatory orders are granted, the alleged constitutional violations will continue to the detriment of transport network drivers , vehicle owners , passengers and the general public .
2 nd Respondent’s Case
11. The 2 nd Respondent through its Head of East Africa, Imran Mahmood Manji filed a Replying Affidavit sworn on 2 nd April 2025.
12. At the outset, he contends that the Petition is incompetent, misconceived and an abuse of the court process. He adds that the Petitioners lack the requisite locus standi to institute the proceedings on behalf of the Organization of Online Drivers as no authority to sue is adduced in their affidavit. He further avers that some of the issues raised are res judicata , being that they are the subject of pending appeals before the Transport Licensing Appeals Board (TLAB) being Appeal No. E008 of 2023 and Appeal No. E011 of 2023 .
13. The 2 nd Respondent denies that it has been licensed contrary to the National Transport and Safety Authority Act or the National Transport and Safety Authority (Transport Network Companies, Owners, Drivers and Passengers) Regulations, 2022 and affirmed that its licences for the 2023/2024 and 2024/2025 licensing periods were renewed only after the 1 st Respondent was satisfied that all statutory requirements had been met as always.
14. It was deponed on behalf of the 2 nd Respondent that it has complied with the mandatory licensing requirements under Regulations 7 and 9 of the 2022 Regulations by submitting all requisite incorporation documents, tax compliance certificates, data processor registration certificates, service agreements governing its relationship with drivers and fleet owners, pricing mechanisms , complaints handling procedures , deactivation policy , vehicle records and all other documents required by law. The 2 nd Respondent swore that the parties' rights and obligations, including revenue sharing, commissions and contractual responsibilities, are expressly provided for in the 2 nd Respondent’s Service Agreements , Terms and Conditions , Community Guidelines and Deactivation Policy per the exhibited copies in the affidavit sworn on its behalf.
15. The 2 nd Respondent contends that the Petition relies on false and misleading information yet Party seeking interim orders is required to make full and frank disclosure of all relevant documentation, evidence and information. As such, the 2 nd Respondent contends that the Petitioners hence are not entitled to the orders sought. With regard to the Petitioners' allegations on pricing, safety and consumer protection, the 2 nd Respondent’s deponed that its fare estimates are generated transparently and only vary in limited circumstances such as route changes, additional stops or changes in destination.
16. The 2 nd Respondent affirmed that it has implemented extensive safety measures through its application, including GPS trip tracking, an in-app emergency button, Ride-Check technology, PIN verification, driver profile information, customer support, trip sharing, speed limit alerts, vehicle inspections, driver hour limits and audio recording features, all aimed at safeguarding drivers and passengers. The 2 nd Respondent thus denied that it has failed to establish adequate safety mechanisms or complaint resolution systems.
17. The 2 nd Respondent disputes the allegation that drivers are arbitrarily suspended or deactivated. Instead, the 2 nd Respondent maintained that it follows an established due process through its publicly available Community Guidelines and Deactivation Policy, under which drivers are ordinarily informed of the reasons for deactivation, afforded an opportunity to respond, and may seek review or appeal of any decision.
18. The 2 nd Respondent deposed that immediate suspension without prior notice only occurs in exceptional circumstances involving safety concerns or suspected fraud, after which affected drivers are accorded an opportunity to participate in the review process including a right to appeal the decisions made. The 2 nd Respondent deponed that it maintains procedures for handling complaints and recovering lost property through the Uber App and customer support centers.
19. The 2 nd Respondent refuted that it charges commissions exceeding the statutory limit of 18% or that promotional pricing prejudices drivers' earnings. It explained that promotions are funded entirely by the 2 nd Respondent and that drivers receive the full promotional difference through their electronic wallets. The 2 nd Respondent attributes any inability to comply with certain reporting obligations under Regulations 15 and 18 to the absence of a reporting framework established by the 1 st Respondent, despite the 2 nd Respondent having requested such a mechanism. Consequently, the 2 nd Respondent urges both the Application and the Petition be dismissed with costs.
3 rd Respondent’s Case
20. The 3 rd Respondent in response filed Grounds of Opposition dated 21 st March 2025 on the premise that:
i. The Petition does not satisfy the threshold of what constitutes a constitutional petition.
ii. The Petition as drawn does not raise any constitutional question.
iii. The alleged grievances presented in the petition as constitutional issues constitute issues that fall within the ambit of the Transport Licensing Board established by the National Safety and Authority Act that ought to be pursued through the statutory channel/procedure availed thereunder hence the court ought to apply the principle of constitutional avoidance.
iv. The National Transport and Safety Authority Act established by section 3 of the National Transport & Safety Authority Act is the authority vested with the role of licensing and the enforcement of the provisions of the Act as well as the regulation made thereunder.
4 th Respondent’s Preliminary Objection
21. The 4 th Respondent’s in rejoinder filed a Notice of Preliminary Objection dated 10 th December 2024. The 4 th Respondent opposes the Petition on the ground that:
i. The orders sought in both the Application and the Petition herein are judicial review orders and therefore leave ought to be sought pursuant to Order 53 (1) of the Civil Procedure Rule, 2010.
ii. This Court lacks jurisdiction to hear and determine this Application since the Petitioner did not exhaust all the mechanisms availed pursuant to Regulation 14 of The National Transport and Safety Authority (Operation of Public Service Vehicles) Regulations No 33 of 2012 to warrant institution of proceedings before this Court.
iii. It is trite law that where there is a well laid down procedure by an Act, such procedures must be strictly followed.
iv. The Petition and Application is premature before this Court and the same is a perfect one to be struck out with costs to the 4 th Respondent.
5 th , 6 th and 7 th Respondents
22. On 3 rd April, 2025, the Court confirmed that the 5 th , 6 th and 7 th Respondents were physically served as evidenced by affidavit of service of 27/1/2025. They however did not appear and their responses and submissions to the Application are not in the Court file or Court Online Platform (CTS), hence proceeded to give its directions.
Court directions
23. On 3 rd April, 2025, the Petitioner’s Advocate moved the Court in an oral application to strike out and/or withdraw the case against all the interested parties in the Petition and the Application was allowed.
24. On the same day, the Court directed that the Petitioner/Applicant’s Notice of Motion dated 31/10/2024 and the 4 th Respondent Notice of Preliminary Objection be heard together. The Court would first determine the Preliminary Objection. Should the Preliminary Objection be upheld, it will be unnecessary for the Court to consider the Notice of Motion on its merits. Conversely, if the objection is overruled, the Court shall proceed to determine the Notice of Motion on its merits.
Petitioners’ Submissions
25. The submissions were in respect to the Petitioners’ application dated 31/10/2024 and to the 4 th Respondent’s Preliminary Objection dated 10/12/2024. The submissions dated 27 th June, 2025 were filed by Murithi Kimanthi and Karera Advocates.
26. To begin, Counsel pointed out that Orders 1, 2, 3, 4 and 6 in the Petitioners Notice of Motion Application had since been overtaken by events hence the Petitioners focus was only on Order 5 and 7.
27. Addressing the Preliminary objection, Counsel submitted that the instant Petition is a constitutional petition brought under Articles 22 and 23 of the Constitution, and as such no leave was required before its institution. Further, he submitted that the reliefs sought extend beyond judicial review remedies and include violations of rights under Articles 26, 29, 40, 43, 46 and 47 of the Constitution.
28. To buttress this point, reliance was placed on Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] KECA 445 (KLR) , where the Court of Appeal affirmed that:
“(36) In our view, the issue of the jurisdiction of the High Court to admit and consider the petition turns on the constitutional provision constituting and investing the Court with judicial authority. Article 165(3)d and (5) of the Constitution provides inter alia that the "165 (3) Subject to clause (5), the High Court shall have-
(d) jurisdiction to hear any question respecting the interpretation of this Constitution, including the determination of
(ii) the question whether anything said to be done under the authority of this Constitution or if any law is inconsistent with, or in contravention of, this Constitution."
(37) It is clear that on its face, the jurisdiction of the High Court is broad enough to cover review of the constitutionality or legality of appointments by other organs of government...”
29. On the second ground, Counsel submitted that the the doctrine of constitutional avoidance is not applicable in the circumstances of this case. This is since the dispute arises under the National Transport and Safety Authority (Transport Network Companies, Owners, Drivers and Passengers) Regulations, 2022, rather than the National Transport and Safety Authority (Operation of Public Service Vehicles) Regulations No 33 of 2012 relied upon by the 4 th Respondent. It was contended that, at the time the Petition and Application were filed, the impugned licensing decisions had not yet been made and several of the conservatory orders sought were anticipatory in nature. Consequently, there was no appealable decision capable of being challenged before the TLAB. Counsel further maintained that the Board lacks jurisdiction to determine constitutional questions and grant declaratory relief for violations of fundamental rights.
30. Counsel relied on the case of Jovet (Kenya) Limited v Bavaria NV (Petition E039 of 2024) [2025] KESC 27 (KLR) , where the Supreme Court emphasized the primacy of rights approach under Article 20(3) of the Constitution, holding that courts should actively apply constitutional values where ordinary law fails to adequately safeguard rights rather than mechanically resorting to constitutional avoidance. Further reliance was placed on HCCHRPET No. E066 of 2025, Daniel Onwonga Manga v Bolt Holdings OU (unreported) .
31. Turning to prayers 5 and 7 of the Petitioner’s Application, Counsel submitted they should be granted because the documents being sought are key to determining whether the Respondents complied with the National Transport and Safety Authority Act and the key Regulations. It was argued that the alleged failure by the Respondents to comply with the statutory licensing requirements has occasioned continuing violations of the Petitioners' constitutional rights. Counsel underscored that since the requested documents remain in the custody of the 1 st Respondent, only issuance of these court orders can ensure proper interrogation of the Respondents' compliance and facilitate the fair hearing and determination of the Petition.
2 nd Respondent
32. In response to the 4 th Respondent’s Preliminary Objection and 3 rd Respondent’s Grounds of Opposition, the 2 nd Respondent through Oraro and Company Advocates filed submissions dated 16 th October 2025.Counsel identified the following issues for determination, namely: whether the Petition raises genuine constitutional questions warranting the Court's jurisdiction and if so whether the dispute ought to be resolved through the statutory mechanisms established under the National Transport and Safety Authority Act and the National Transport and Safety Authority (Transport Network Companies, Owners, Drivers and Passengers) Regulations, 2022 .
33. Counsel argued that that the Petition principally challenges the alleged non-compliance by the 2 nd to 7 th Respondents with licensing requirements under the National Transport and Safety Authority Act and its Regulations and the 1 st Respondent's enforcement of those requirements, which according to Counsel, are matters which fall squarely within its regulatory mandate.
34. Counsel submitted that Section 38 of the Act provides for a right of appeal to the Transport Licensing Appeals Board (TLAB ) for persons aggrieved by licensing decisions, while Section 39 empowers the Board to affirm, vary or reverse such decisions.
35. Counsel noted that Regulation 23 of the National Transport and Safety Authority (Transport Network Companies, Owners, Drivers and Passengers) Regulations, 2022, similarly provides that any person aggrieved by a decision of the 1 st Respondent under the Regulations may appeal to the Appeals Board. Accordingly, Counsel underscored that Parliament deliberately created a comprehensive statutory framework under which licensing disputes must first be ventilated before the 1 st Respondent and thereafter the TLAB before a party seeks recourse before the Court. In light of this Counsel, argued that indeed the present Petition invokes the doctrine of constitutional avoidance.
36. To buttress this point, relied on Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others [2014] KESC 53 (KLR) , where the Supreme Court held as follows:
“The principle of avoidance entails that a court will not determine a constitutional issue, when a matter may properly be decided on another basis.”
37. Comparable reliance was placed on KKB v SCM & 5 Others (Constitutional Petition No. 014 of 2020) [2022] KEHC 289 (KLR) , Sumayya Athmani Hassan v Paul Masinde Simidi & another [2019] KECA 107 (KLR) and
38. Further reliance was placed on the South African case of S v Mhlungu & Others (CCT 25/94) [1995] ZACC 4; 1995 (3) SA 867 , in support of the positions that courts should avoid deciding constitutional questions where a matter can be disposed of on non-constitutional grounds.
39. To this end, Counsel maintained that the Petition does not disclose genuine constitutional questions but merely seeks to turn a licensing and regulatory dispute into a constitutional issue that ought to have been pursued before the TLAB.
4 th Respondent
40. The 4 th Respondent through Iqra Bare and Company Advocates filed submissions dated 15 th April 2025 where Counsel narrowed to only one issue: whether this Court has jurisdiction to entertain the Application .
41. Counsel relying on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 submitted that the 4 th Respondent’s Preliminary Objection raises a pure point of law on jurisdiction and therefore satisfies the test of a preliminary objection as is founded on a pure point of law capable of disposing of the suit.
42. According to Counsel, although the Petition is framed as a constitutional petition, the substantive reliefs sought are the judicial review remedies of certiorari, prohibition and mandamus aimed at quashing, prohibiting and compelling actions of the 1 st Respondent regarding transport network licences. Consequently, it was argued that the Petition ought to have been brought under Order 53 rule 1 of the Civil Procedure Rules. To buttress this point reliance was placed on Felix Kiprono Matagei v Attorney General; Law Society of Kenya (Amicus Curiae) [2021] eKLR , where the Court held that:
“The procedural rule sin Order 53 of the CPR governed judicial review prior to the promulgation of the Constitution and are still in force as they have not been repealed.”
43. Further to this, Counsel submitted that the Petition is premature as the Petitioners failed to exhaust the provided dispute resolution mechanisms. Particularly, it was argued that Regulation 14 of the National Transport and Safety Authority (Operation of Public Service Vehicles) Regulations, 2012 provides that any person aggrieved by a decision of the 1 st Respondent must first appeal to the TLAB within 14 days. Counsel underscored that the Petitioners neither sought leave for judicial review nor pursued the appeal mechanism before approaching this Court.
44. Counsel maintained that where Parliament has prescribed a specific procedure for redress, that procedure must be strictly followed as affirmed by the Court of Appeal in Speaker of the National Assembly v Karume, Civil Application No. NAI 92 of 1992 . Accordingly, Counsel relied on Samuel Kamau Macharia v Kenya Commercial Bank Limited & 2 Others, Application No. 2 of 2011 and urged the Court to uphold the Preliminary Objection and strike out both the Petition and the Application with costs to the 4 th Respondent.
Analysis and Determination
45. It is my considered opinion that the issues that arises for determination are:
i. Whether the 4 th Respondent’s Preliminary Objection dated 10/12/2024 is merited.
ii. Whether Prayers 5 and 7 in the Petitioner’s Notice of Motion Application dated 31/10/2024 should be allowed
Whether the 4 th Respondent’s Preliminary Objection dated 10/12/2024 is merited.
31. A Preliminary Objection is regarded as proper by the court only if it meets the established procedural and substantive threshold. The threshold of a preliminary objection was articulated in the cerebrated case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 69 the Court held thus:
“… a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit, to refer the dispute to arbitration.
A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and, on occasion, confuse the issues, and this improper practice should stop.'
32. Further, building on Mukisa case (supra) the Court in Dismas Wambola v Cabinet Secretary, Treasury & 5 others (2017) eKLR explained:
“…a preliminary objection may only be raised on a “pure question of law.” To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.
In law, a question of law, also known as a point of law, is a question that must be answered by applying relevant legal principles to interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence as well as inferences arising from those facts.”
33. The Supreme Court elaborated on the jurisprudential value of Preliminary Objections in the case of Independent Electoral & Boundaries Commission v Cheperenger & 2 others (Civil Application 36 of 2014) [2015] KESC 2 (KLR) (15 December 2015) (Ruling) where it held as follows:
“21. The occasion to hear this matter accords us an opportunity to make certain observations regarding the recourse by litigants to preliminary objections. The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement…”
34. Having regard to the foregoing authorities, the fundamental characteristics of a Preliminary Objection may be summarized and distilled as follows:
a) Can be pleaded or is apparent on the face pleadings (or the record).
b) a preliminary objection, argued successfully should be capable of disposing of the whole suit.
c) It is argued on the assumption that all the facts pleaded by the opposing side are correct
d) It cannot be raised if any fact has to be ascertained by evidence
e) It cannot be raised if what is sought is the exercise of judicial discretion.
35. The question thus becomes, does the Preliminary Objection raised against the instant Application by the Respondent herein satisfy the above threshold?
36. One of the grounds of objection that the 4 th Respondent raised is that the Petition offends the doctrine of exhaustion. The doctrine of exhaustion requires the Court to decline exercise of jurisdiction and to defer to legally prescribed alternative dispute resolution mechanism for the specific dispute before any Court action is commenced, unless exceptional circumstances exist to justify the Court assuming jurisdiction. In that regard, the doctrine raises a fundamental jurisdictional question and can therefore be the basis of a Preliminary Objection. This Court thus finds that the P.O by the 4 th Respondent satisfies the threshold of being raised as a Preliminary Objection.
37. The doctrine was elaborated by the Supreme Court in Waity vs Independent Electoral & Boundaries Commission and Three Others [2019] KESC 54 (KLR) as follows:
“[63] Where the Constitution or the law, consciously confers jurisdiction to resolve a dispute, on an organ other than a court of law, it is imperative that such dispute resolution mechanism, be exhausted before approaching the latter. Were it not so, parties would bide their time, overlooking the recognized forums, and later springing a complaint at the courts. Such a scenario would be a clear recipe for forum shopping, an undertaking that must never be allowed to fester in the administration of justice. We are fortified in this regard, by the persuasive authority by the Court of Appeal, in Geoffrey Muthinja Kabiru & 2 Others; [2015] eKLR; wherein the Appellate Court observed:
“It is imperative that where a dispute resolution mechanism exists outside the Courts, the same be exhausted before the jurisdiction of the Courts be invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts.”
38. Further in Supreme Court case of Mumba & 7 others (Sued on their own b
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Introduction
1. The Petition dated 31 st October 2024, concerns the regulation of transport network companies operating within Kenya, including digital ride-hailing platforms such as the 2 nd to 7 th Respondents.
2. The Petitioners challenge the manner the 1 st Respondent has been discharging its statutory mandate under the National Transport and Safety Authority Act and the National Transport and Safety Authority (Transport Network Companies, Owners, Drivers and Passengers) Regulations, 2022 .
3. In essence, the Petitioners contend that the 1 st Respondent has licensed and renewed the licenses of the 2 nd to 7 th Respondents notwithstanding the failure to comply with the mandatory requirements prescribed under the Act and the Regulations and as such exposing members of the public to unsafe transport services thereby violating their fundamental rights under Articles 26, 29, 40, 43, 46 and 47 of the Constitution. Consequently, the Petitioners seek the following reliefs:
i. A declaration that the Petitioners fundamental rights and freedoms under Articles 26, 29, 40, 43, 46, and 47 have been infringed upon and/or are in danger of being infringed upon by the Respondents.
ii. An order of certiorari be issued bringing to this court for quashing transport network licences issued to any of the 2 nd to 7 th Respondents, by the 1 st Respondent, if they have not complied with the National Transport and Safety Authority Act and the National Transport and Safety Authority (Transport Network Companies, Owners, Drivers and Passengers) Regulations, 2022.
iii. An order of prohibition prohibiting the 1 st Respondent from issuing and/or renewing any transport network licences to any of the 2 nd to 7 th Respondents, if they have not complied with the National Transport and Safety Authority Act and the National Transport and Safety Authority (Transport Network Companies, Owners, Drivers and Passengers) Regulations, 2022.
iv. An order of mandamus directed to the 1 st Respondent to ensure the 2 nd to 7 th Respondents comply with the National Transport and Safety Authority Act and the National Transport and Safety Authority (Transport Network Companies, Owners, Drivers and Passengers) Regulations, 2022 forthwith and on a yearly basis.
v. Damages.
vi. Costs of this Petition.
The Application
4. The Petitioners in the Notice of Motion Application filed on even date with this Petition, seek the following orders:
i. Spent.
ii. Pending hearing and determination of this Application, this Court do issue conservatory orders stopping issuance of, renewal of, and/ or suspending already issued, transport network licences to the any of the 2 nd to 7 th Respondents, by the 1 st Respondent, if they have not complied with the National Transport and Safety Authority Act and the National Transport and Safety Authority (Transport Network Companies, Owners, Drivers and Passengers) Regulations, 2022.
iii. Pending hearing and determination of this Petition, this Court do issue conservatory orders stopping issuance of, renewal of, and/ or suspending already issued, transport network licences to the any of the 2 nd to 7 th Respondents, by the 1 st Respondent, if they have not complied with the National Transport and Safety Authority Act and the National Transport and Safety Authority (Transport Network Companies, Owners, Drivers and Passengers) Regulations, 2022.
iv. Pending hearing and determination of this Application, the 1 st Respondent do deposit with this court for safe keeping, and perusal by the parties herein, copies of applications by the 2 nd to 7 th Respondent for transport network licenses for the years 2023/2024 and 2024/2025.
v. Pending hearing and determination of this Petition, the 1 st Respondent do deposit with this court for safe keeping, and perusal by the parties herein, copies of applications by the 2 nd to 7 th Respondent for transport network licenses for the years 2023/2024 and 2024/2025.
vi. Pending hearing and determination of this Application, the 1 st Respondent do deposit with this court for safe keeping, and perusal by the parties herein, copies of the audits of the 2 nd to 7 th Respondents contemplated by Regulation 12(3) of the National Transport and Safety Authority (Transport Network Companies, Owners, Drivers and Passengers) Regulations, 2022, for the years 2023/2024 and 2024/2025.
vii. Pending hearing and determination of this Petition, the 1 st Respondent do deposit with this court for safe keeping, and perusal by the parties herein, copies of the audits of the 2 nd to 7 th Respondents contemplated by Regulation 12(3) of the National Transport and Safety Authority (Transport Network Companies, Owners, Drivers and Passengers) Regulations, 2022, for the years 2023/2024 and 2024/2025 .
viii. Costs of this Application be provided for.
5. The Application is supported by the 1 st Petitioner’s affidavit, sworn on even date and the grounds on the face of the Application.
6. The 1 st Petitioner avers that the Petitioners are officials of an organization called Organization of Online Drivers and bring this Petition on behalf of transport network drivers and owners and the general public.
7. They make reference to section 4 of the National Transport and Safety Authority Act as read with Rules 5, 6, 7, and 8 of the National Transport and Safety Authority (Transport Network Companies, Owners, Drivers and Passengers) Regulations, 2022 which mandate the 1 st Respondent to issue transport network licenses.
8. According to the Petitioners, the that the 1 st Respondent has been issuing licenses to the 2 nd to 7 th Respondent closing its eyes to their non-compliance with the mandatory licensing and operational requirements prescribed under Regulations 7, 8, 9, 12, 14, 16 and 18 of the National Transport and Safety Authority (Transport Network Companies, Owners, Drivers and Passengers) Regulations, 2022.
9. The Petitioners contend that this continued non-compliance has resulted in unsafe transport services , arbitrary suspension and deactivation of drivers without due process , inadequate security and complaint-handling mechanisms , excessive commissions , unfair pricing practices and failure to comply with statutory reporting obligations .
10. The Petitioners maintain that unless the conservatory orders are granted, the alleged constitutional violations will continue to the detriment of transport network drivers , vehicle owners , passengers and the general public .
2 nd Respondent’s Case
11. The 2 nd Respondent through its Head of East Africa, Imran Mahmood Manji filed a Replying Affidavit sworn on 2 nd April 2025.
12. At the outset, he contends that the Petition is incompetent, misconceived and an abuse of the court process. He adds that the Petitioners lack the requisite locus standi to institute the proceedings on behalf of the Organization of Online Drivers as no authority to sue is adduced in their affidavit. He further avers that some of the issues raised are res judicata , being that they are the subject of pending appeals before the Transport Licensing Appeals Board (TLAB) being Appeal No. E008 of 2023 and Appeal No. E011 of 2023 .
13. The 2 nd Respondent denies that it has been licensed contrary to the National Transport and Safety Authority Act or the National Transport and Safety Authority (Transport Network Companies, Owners, Drivers and Passengers) Regulations, 2022 and affirmed that its licences for the 2023/2024 and 2024/2025 licensing periods were renewed only after the 1 st Respondent was satisfied that all statutory requirements had been met as always.
14. It was deponed on behalf of the 2 nd Respondent that it has complied with the mandatory licensing requirements under Regulations 7 and 9 of the 2022 Regulations by submitting all requisite incorporation documents, tax compliance certificates, data processor registration certificates, service agreements governing its relationship with drivers and fleet owners, pricing mechanisms , complaints handling procedures , deactivation policy , vehicle records and all other documents required by law. The 2 nd Respondent swore that the parties' rights and obligations, including revenue sharing, commissions and contractual responsibilities, are expressly provided for in the 2 nd Respondent’s Service Agreements , Terms and Conditions , Community Guidelines and Deactivation Policy per the exhibited copies in the affidavit sworn on its behalf.
15. The 2 nd Respondent contends that the Petition relies on false and misleading information yet Party seeking interim orders is required to make full and frank disclosure of all relevant documentation, evidence and information. As such, the 2 nd Respondent contends that the Petitioners hence are not entitled to the orders sought. With regard to the Petitioners' allegations on pricing, safety and consumer protection, the 2 nd Respondent’s deponed that its fare estimates are generated transparently and only vary in limited circumstances such as route changes, additional stops or changes in destination.
16. The 2 nd Respondent affirmed that it has implemented extensive safety measures through its application, including GPS trip tracking, an in-app emergency button, Ride-Check technology, PIN verification, driver profile information, customer support, trip sharing, speed limit alerts, vehicle inspections, driver hour limits and audio recording features, all aimed at safeguarding drivers and passengers. The 2 nd Respondent thus denied that it has failed to establish adequate safety mechanisms or complaint resolution systems.
17. The 2 nd Respondent disputes the allegation that drivers are arbitrarily suspended or deactivated. Instead, the 2 nd Respondent maintained that it follows an established due process through its publicly available Community Guidelines and Deactivation Policy, under which drivers are ordinarily informed of the reasons for deactivation, afforded an opportunity to respond, and may seek review or appeal of any decision.
18. The 2 nd Respondent deposed that immediate suspension without prior notice only occurs in exceptional circumstances involving safety concerns or suspected fraud, after which affected drivers are accorded an opportunity to participate in the review process including a right to appeal the decisions made. The 2 nd Respondent deponed that it maintains procedures for handling complaints and recovering lost property through the Uber App and customer support centers.
19. The 2 nd Respondent refuted that it charges commissions exceeding the statutory limit of 18% or that promotional pricing prejudices drivers' earnings. It explained that promotions are funded entirely by the 2 nd Respondent and that drivers receive the full promotional difference through their electronic wallets. The 2 nd Respondent attributes any inability to comply with certain reporting obligations under Regulations 15 and 18 to the absence of a reporting framework established by the 1 st Respondent, despite the 2 nd Respondent having requested such a mechanism. Consequently, the 2 nd Respondent urges both the Application and the Petition be dismissed with costs.
3 rd Respondent’s Case
20. The 3 rd Respondent in response filed Grounds of Opposition dated 21 st March 2025 on the premise that:
i. The Petition does not satisfy the threshold of what constitutes a constitutional petition.
ii. The Petition as drawn does not raise any constitutional question.
iii. The alleged grievances presented in the petition as constitutional issues constitute issues that fall within the ambit of the Transport Licensing Board established by the National Safety and Authority Act that ought to be pursued through the statutory channel/procedure availed thereunder hence the court ought to apply the principle of constitutional avoidance.
iv. The National Transport and Safety Authority Act established by section 3 of the National Transport & Safety Authority Act is the authority vested with the role of licensing and the enforcement of the provisions of the Act as well as the regulation made thereunder.
4 th Respondent’s Preliminary Objection
21. The 4 th Respondent’s in rejoinder filed a Notice of Preliminary Objection dated 10 th December 2024. The 4 th Respondent opposes the Petition on the ground that:
i. The orders sought in both the Application and the Petition herein are judicial review orders and therefore leave ought to be sought pursuant to Order 53 (1) of the Civil Procedure Rule, 2010.
ii. This Court lacks jurisdiction to hear and determine this Application since the Petitioner did not exhaust all the mechanisms availed pursuant to Regulation 14 of The National Transport and Safety Authority (Operation of Public Service Vehicles) Regulations No 33 of 2012 to warrant institution of proceedings before this Court.
iii. It is trite law that where there is a well laid down procedure by an Act, such procedures must be strictly followed.
iv. The Petition and Application is premature before this Court and the same is a perfect one to be struck out with costs to the 4 th Respondent.
5 th , 6 th and 7 th Respondents
22. On 3 rd April, 2025, the Court confirmed that the 5 th , 6 th and 7 th Respondents were physically served as evidenced by affidavit of service of 27/1/2025. They however did not appear and their responses and submissions to the Application are not in the Court file or Court Online Platform (CTS), hence proceeded to give its directions.
Court directions
23. On 3 rd April, 2025, the Petitioner’s Advocate moved the Court in an oral application to strike out and/or withdraw the case against all the interested parties in the Petition and the Application was allowed.
24. On the same day, the Court directed that the Petitioner/Applicant’s Notice of Motion dated 31/10/2024 and the 4 th Respondent Notice of Preliminary Objection be heard together. The Court would first determine the Preliminary Objection. Should the Preliminary Objection be upheld, it will be unnecessary for the Court to consider the Notice of Motion on its merits. Conversely, if the objection is overruled, the Court shall proceed to determine the Notice of Motion on its merits.
Petitioners’ Submissions
25. The submissions were in respect to the Petitioners’ application dated 31/10/2024 and to the 4 th Respondent’s Preliminary Objection dated 10/12/2024. The submissions dated 27 th June, 2025 were filed by Murithi Kimanthi and Karera Advocates.
26. To begin, Counsel pointed out that Orders 1, 2, 3, 4 and 6 in the Petitioners Notice of Motion Application had since been overtaken by events hence the Petitioners focus was only on Order 5 and 7.
27. Addressing the Preliminary objection, Counsel submitted that the instant Petition is a constitutional petition brought under Articles 22 and 23 of the Constitution, and as such no leave was required before its institution. Further, he submitted that the reliefs sought extend beyond judicial review remedies and include violations of rights under Articles 26, 29, 40, 43, 46 and 47 of the Constitution.
28. To buttress this point, reliance was placed on Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] KECA 445 (KLR) , where the Court of Appeal affirmed that:
“(36) In our view, the issue of the jurisdiction of the High Court to admit and consider the petition turns on the constitutional provision constituting and investing the Court with judicial authority. Article 165(3)d and (5) of the Constitution provides inter alia that the "165 (3) Subject to clause (5), the High Court shall have-
(d) jurisdiction to hear any question respecting the interpretation of this Constitution, including the determination of
(ii) the question whether anything said to be done under the authority of this Constitution or if any law is inconsistent with, or in contravention of, this Constitution."
(37) It is clear that on its face, the jurisdiction of the High Court is broad enough to cover review of the constitutionality or legality of appointments by other organs of government...”
29. On the second ground, Counsel submitted that the the doctrine of constitutional avoidance is not applicable in the circumstances of this case. This is since the dispute arises under the National Transport and Safety Authority (Transport Network Companies, Owners, Drivers and Passengers) Regulations, 2022, rather than the National Transport and Safety Authority (Operation of Public Service Vehicles) Regulations No 33 of 2012 relied upon by the 4 th Respondent. It was contended that, at the time the Petition and Application were filed, the impugned licensing decisions had not yet been made and several of the conservatory orders sought were anticipatory in nature. Consequently, there was no appealable decision capable of being challenged before the TLAB. Counsel further maintained that the Board lacks jurisdiction to determine constitutional questions and grant declaratory relief for violations of fundamental rights.
30. Counsel relied on the case of Jovet (Kenya) Limited v Bavaria NV (Petition E039 of 2024) [2025] KESC 27 (KLR) , where the Supreme Court emphasized the primacy of rights approach under Article 20(3) of the Constitution, holding that courts should actively apply constitutional values where ordinary law fails to adequately safeguard rights rather than mechanically resorting to constitutional avoidance. Further reliance was placed on HCCHRPET No. E066 of 2025, Daniel Onwonga Manga v Bolt Holdings OU (unreported) .
31. Turning to prayers 5 and 7 of the Petitioner’s Application, Counsel submitted they should be granted because the documents being sought are key to determining whether the Respondents complied with the National Transport and Safety Authority Act and the key Regulations. It was argued that the alleged failure by the Respondents to comply with the statutory licensing requirements has occasioned continuing violations of the Petitioners' constitutional rights. Counsel underscored that since the requested documents remain in the custody of the 1 st Respondent, only issuance of these court orders can ensure proper interrogation of the Respondents' compliance and facilitate the fair hearing and determination of the Petition.
2 nd Respondent
32. In response to the 4 th Respondent’s Preliminary Objection and 3 rd Respondent’s Grounds of Opposition, the 2 nd Respondent through Oraro and Company Advocates filed submissions dated 16 th October 2025.Counsel identified the following issues for determination, namely: whether the Petition raises genuine constitutional questions warranting the Court's jurisdiction and if so whether the dispute ought to be resolved through the statutory mechanisms established under the National Transport and Safety Authority Act and the National Transport and Safety Authority (Transport Network Companies, Owners, Drivers and Passengers) Regulations, 2022 .
33. Counsel argued that that the Petition principally challenges the alleged non-compliance by the 2 nd to 7 th Respondents with licensing requirements under the National Transport and Safety Authority Act and its Regulations and the 1 st Respondent's enforcement of those requirements, which according to Counsel, are matters which fall squarely within its regulatory mandate.
34. Counsel submitted that Section 38 of the Act provides for a right of appeal to the Transport Licensing Appeals Board (TLAB ) for persons aggrieved by licensing decisions, while Section 39 empowers the Board to affirm, vary or reverse such decisions.
35. Counsel noted that Regulation 23 of the National Transport and Safety Authority (Transport Network Companies, Owners, Drivers and Passengers) Regulations, 2022, similarly provides that any person aggrieved by a decision of the 1 st Respondent under the Regulations may appeal to the Appeals Board. Accordingly, Counsel underscored that Parliament deliberately created a comprehensive statutory framework under which licensing disputes must first be ventilated before the 1 st Respondent and thereafter the TLAB before a party seeks recourse before the Court. In light of this Counsel, argued that indeed the present Petition invokes the doctrine of constitutional avoidance.
36. To buttress this point, relied on Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others [2014] KESC 53 (KLR) , where the Supreme Court held as follows:
“The principle of avoidance entails that a court will not determine a constitutional issue, when a matter may properly be decided on another basis.”
37. Comparable reliance was placed on KKB v SCM & 5 Others (Constitutional Petition No. 014 of 2020) [2022] KEHC 289 (KLR) , Sumayya Athmani Hassan v Paul Masinde Simidi & another [2019] KECA 107 (KLR) and
38. Further reliance was placed on the South African case of S v Mhlungu & Others (CCT 25/94) [1995] ZACC 4; 1995 (3) SA 867 , in support of the positions that courts should avoid deciding constitutional questions where a matter can be disposed of on non-constitutional grounds.
39. To this end, Counsel maintained that the Petition does not disclose genuine constitutional questions but merely seeks to turn a licensing and regulatory dispute into a constitutional issue that ought to have been pursued before the TLAB.
4 th Respondent
40. The 4 th Respondent through Iqra Bare and Company Advocates filed submissions dated 15 th April 2025 where Counsel narrowed to only one issue: whether this Court has jurisdiction to entertain the Application .
41. Counsel relying on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 submitted that the 4 th Respondent’s Preliminary Objection raises a pure point of law on jurisdiction and therefore satisfies the test of a preliminary objection as is founded on a pure point of law capable of disposing of the suit.
42. According to Counsel, although the Petition is framed as a constitutional petition, the substantive reliefs sought are the judicial review remedies of certiorari, prohibition and mandamus aimed at quashing, prohibiting and compelling actions of the 1 st Respondent regarding transport network licences. Consequently, it was argued that the Petition ought to have been brought under Order 53 rule 1 of the Civil Procedure Rules. To buttress this point reliance was placed on Felix Kiprono Matagei v Attorney General; Law Society of Kenya (Amicus Curiae) [2021] eKLR , where the Court held that:
“The procedural rule sin Order 53 of the CPR governed judicial review prior to the promulgation of the Constitution and are still in force as they have not been repealed.”
43. Further to this, Counsel submitted that the Petition is premature as the Petitioners failed to exhaust the provided dispute resolution mechanisms. Particularly, it was argued that Regulation 14 of the National Transport and Safety Authority (Operation of Public Service Vehicles) Regulations, 2012 provides that any person aggrieved by a decision of the 1 st Respondent must first appeal to the TLAB within 14 days. Counsel underscored that the Petitioners neither sought leave for judicial review nor pursued the appeal mechanism before approaching this Court.
44. Counsel maintained that where Parliament has prescribed a specific procedure for redress, that procedure must be strictly followed as affirmed by the Court of Appeal in Speaker of the National Assembly v Karume, Civil Application No. NAI 92 of 1992 . Accordingly, Counsel relied on Samuel Kamau Macharia v Kenya Commercial Bank Limited & 2 Others, Application No. 2 of 2011 and urged the Court to uphold the Preliminary Objection and strike out both the Petition and the Application with costs to the 4 th Respondent.
Analysis and Determination
45. It is my considered opinion that the issues that arises for determination are:
i. Whether the 4 th Respondent’s Preliminary Objection dated 10/12/2024 is merited.
ii. Whether Prayers 5 and 7 in the Petitioner’s Notice of Motion Application dated 31/10/2024 should be allowed
Whether the 4 th Respondent’s Preliminary Objection dated 10/12/2024 is merited.
31. A Preliminary Objection is regarded as proper by the court only if it meets the established procedural and substantive threshold. The threshold of a preliminary objection was articulated in the cerebrated case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 69 the Court held thus:
“… a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit, to refer the dispute to arbitration.
A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and, on occasion, confuse the issues, and this improper practice should stop.'
32. Further, building on Mukisa case (supra) the Court in Dismas Wambola v Cabinet Secretary, Treasury & 5 others (2017) eKLR explained:
“…a preliminary objection may only be raised on a “pure question of law.” To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.
In law, a question of law, also known as a point of law, is a question that must be answered by applying relevant legal principles to interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence as well as inferences arising from those facts.”
33. The Supreme Court elaborated on the jurisprudential value of Preliminary Objections in the case of Independent Electoral & Boundaries Commission v Cheperenger & 2 others (Civil Application 36 of 2014) [2015] KESC 2 (KLR) (15 December 2015) (Ruling) where it held as follows:
“21. The occasion to hear this matter accords us an opportunity to make certain observations regarding the recourse by litigants to preliminary objections. The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement…”
34. Having regard to the foregoing authorities, the fundamental characteristics of a Preliminary Objection may be summarized and distilled as follows:
a) Can be pleaded or is apparent on the face pleadings (or the record).
b) a preliminary objection, argued successfully should be capable of disposing of the whole suit.
c) It is argued on the assumption that all the facts pleaded by the opposing side are correct
d) It cannot be raised if any fact has to be ascertained by evidence
e) It cannot be raised if what is sought is the exercise of judicial discretion.
35. The question thus becomes, does the Preliminary Objection raised against the instant Application by the Respondent herein satisfy the above threshold?
36. One of the grounds of objection that the 4 th Respondent raised is that the Petition offends the doctrine of exhaustion. The doctrine of exhaustion requires the Court to decline exercise of jurisdiction and to defer to legally prescribed alternative dispute resolution mechanism for the specific dispute before any Court action is commenced, unless exceptional circumstances exist to justify the Court assuming jurisdiction. In that regard, the doctrine raises a fundamental jurisdictional question and can therefore be the basis of a Preliminary Objection. This Court thus finds that the P.O by the 4 th Respondent satisfies the threshold of being raised as a Preliminary Objection.
37. The doctrine was elaborated by the Supreme Court in Waity vs Independent Electoral & Boundaries Commission and Three Others [2019] KESC 54 (KLR) as follows:
“[63] Where the Constitution or the law, consciously confers jurisdiction to resolve a dispute, on an organ other than a court of law, it is imperative that such dispute resolution mechanism, be exhausted before approaching the latter. Were it not so, parties would bide their time, overlooking the recognized forums, and later springing a complaint at the courts. Such a scenario would be a clear recipe for forum shopping, an undertaking that must never be allowed to fester in the administration of justice. We are fortified in this regard, by the persuasive authority by the Court of Appeal, in Geoffrey Muthinja Kabiru & 2 Others; [2015] eKLR; wherein the Appellate Court observed:
“It is imperative that where a dispute resolution mechanism exists outside the Courts, the same be exhausted before the jurisdiction of the Courts be invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts.”
38. Further in Supreme Court case of Mumba & 7 others (Sued on their own b
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