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JudgmentSCOOBY ENTERPRISES LTD VS KENYA URBAN ROADS AUTHORITY AND KISII COUNTY GOVERNMENT30 min read

SCOOBY ENTERPRISES LTD VS KENYA URBAN ROADS AUTHORITY AND KISII COUNTY GOVERNMENT

High Court at Kisii High Court · · Magare Dennis Kizito Ngwono


  1. This is a Petition filed on 24/6/2020 under Articles 3(1),10,20,21,23, 27(1) &(2),40(1),40(2), 40(6),43,47,50,60,232(1) & 232(2) of the Constitution of Kenya, Section 4 of the Fair Administrative Action Act & Sections 70 of the Kenya Roads Act, No.2 of 2007 and Section 3 of the County Governments Act, 2012.
  2. The Petitioner alleged that the it was the owner of land parcel number, Central Kitutu/Mwamosioma/2758, along the rehabilitated Kisii Main stage – Getare Road.
  3. It was their case that their plans were approved by the Municipal Engineer for construction of go downs and rental units. They did construction of the commercial multimillion constructions of wholesale and distribution of general merchandise of goods therein in January 2014.
  4. They stated that the road was paved for all kinds of roads of different load capacities with no restriction in existence. It is their case that they are manufacturers were supplying goods.
  5. The Petitioner sought the following orders: -
  6. A Declaration that the Respondents violated the provisions of Articles 3(1),10,20,21,27(1)&(2),40(1),40(2), 40(6),43,47,50,60,232(1) & 232(2) of the Constitution of Kenya, Section 4 of the Fair Administrative Action Act & Sections 70 of the Kenya Roads Act, No.2of 2007 and Section 3 of the County Governments Act,2012.
  7. A Declaration that the illegal, unlawful & Un procedural decision of putting up or erecting the caution of "Maximum Load 10 tonnes "outlawing the use of the Rehabilitated Kisii Main Stage-Getare Road to Motor vehicles with over 10 tonnes and turning a blind eye to the effect in the Petitioner's multimillion business of whole sale and distribution of goods of general merchandise, contravenes and amounts to deprivation of the rights to own, use and enjoy property in contravention of the provisions of Articles 40 of the Constitution of Kenya.
  8. In the alternative, a Declaration that the Respondents in designing the Kisii Main Stage-Getare Road to allow usage thereof to only vehicular capacity of upto maximum of 10 tonnes capacity, was negligent and in breach of Statutory duty.
  9. An Order compelling the Respondents to remove forthwith the caution /Notice of "Maximum Load 10 tonnes limit” erected and/or placed on the Rehabilitated Kisii Main Stage- Getare Road at the junctions along Kisii- Nyamira Highway and the By-pass-Gudka-Kisii-Nairobi Highway.
  10. A Conservative Order restraining and/or prohibiting the Respondents jointly and severally, their agents or any other persons under their behest from implementing the decision of restricting and outlawing and/or putting up or erecting Caution of “Maximum Load 10 tonnes limit” on the Rehabilitated Kisii Main Stage-Getare Road.
  11. Costs of this suit

Analysis

  1. The matter came for hearing before me on 4/12/2023. Mr Bunde informed me that all parties had filed submissions. I have perused a further Amended Petition which I note was opposed.
  2. The issue for determination is whether the Petition is meritorious as to yield the reliefs sought.
  3. In the case of Diana Kethi Kilonzo & another v Independent Electoral & Boundaries Commission & 10 others [2013] eKLR, the court stated as follows: -

“ 148. It is not enough that an expectation should exist; it must in addition be legitimate, to be worthy of protection. As expressed by HWR Wade C.F Forsyth in Administrative Law, Tenth Edition (2009) page 449:

“It is not enough that an expectation should exist; it must in addition be legitimate. But how is it to be determined whether a particular expectation is worthy of protection? This is a difficult area since an expectation reasonably entertained by a person may not be found to be legitimate because of some countervailing consideration of policy or law”

Further, the same author points out that (pages 450-451):

“An expectation whose fulfilment requires that a decision-maker should make an unlawful decision cannot be a legitimate expectation….the expectation must be within the powers of the decision-maker before any question of protection arises.”

  1. In Keroche Industries Limited v. Kenya Revenue Authority & 5 Others [2007] eKLR Nyamu, J (as he then was) found that the Applicant’s claim that its legitimate expectation to continue paying tax on a specific tariff which the respondents had been accepting over the years based on the mode of licensing products, had been thwarted. The court cited the English case of R (Bibi) v Newham London Borough Council [2001]1 WLR 237and quoted the three practical questions which Schieman LJ gave for the Court to pose in ascertaining whether a claim based on legitimate expectations is properly grounded. These are quoted by Nyamu J as follows:

“(1) What has the public authority whether by practice or promise committed itself to;

(2) Whether the authority has acted or proposes to act unlawfully in relation to its commitment;

(3) What should the court do”

  1. In the case of Haoucher v Minister for Immigration and Ethnic Affairs [1990]169 CLR Deanne J. observed as follows;

“Regardless of whether one can identify a right in the strict sense or a legitimate expectation, the requirements of procedural fairness must be observed in any case where,    
by reference to 'the particular statutory framework' (see Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475 at 504), it is proper to discern a legislative intent that the donee of governmental executive power or authority should be bound by them. There is a strong presumption of such a legislative intent in any case where a statute confers on one person a power or authority adversely and directly to affect the rights, interests, status or legitimate expectations of a real or artificial person or entity in an individual capacity (as distinct from merely as a member of a section of the general public). The rationale of that strong presumption is to be found not so much in sophisticated principle, as in ordinary notions of what is fair and just."

  1. In the case of Okiya Omtatah Okoiti v Commissioner General, Kenya Revenue Authority & 2 others [2018] eKLR, Justice John M. Mativo, (as then he was) stated as doth: -

“50. The question that follows is, is whether the first Respondent undertook public participation that in any meaningful sense meets the threshold appropriate for public participation. Differently put, what was the threshold for public participation which would have been appropriate for this exercise? Justice Sachs in the South African case of Minister of Health and Another  vs New Clicks South Africa(Pty) Ltd and Others[32]  at para. 630, noted that “... What matters is that at the end of the day a reasonable opportunity is offered to members of the public and all interested parties to know about the issues and to have an adequate say. What amounts to a reasonable opportunity will depend on the circumstances of each case.”

  1. In the Mui Coal Basin Local Community & 15 others v Permanent Secretary of Energy & 17 others {2015} eKLR, a three-judge bench of the High Court considered relevant case law, international law and comparative jurisprudence on public participation and culled the following practical elements or principles which both the Court and public agencies can utilize to gauge whether the obligation to facilitate public participation has been reached in a given case:-

a) First, it is incumbent upon the government agency or public official involved to fashion a programme of public participation that accords with the nature of the subject matter.  It is the government agency or Public Official who is to craft the modalities of public participation but in so doing the government agency or Public Official must take into account both the quantity and quality of the governed to participate in their own governance. Yet the government agency enjoys some considerable measure of discretion in fashioning those modalities.

b) Second, public participation calls for innovation and malleability depending on the nature of the subject matter, culture, logistical constraints, and so forth. In other words, no single regime or programme of public participation can be prescribed and the Courts will not use any litmus test to determine if public participation has been achieved or not.  The only test the Courts use is one of effectiveness.  A variety of mechanisms may be used to achieve public participation.

c) Third, whatever programme of public participation is fashioned, it must include access to and dissemination of relevant information.  See Republic vs The Attorney General & Another ex parte Hon. Francis Chachu Ganya (JR Misc. App. No. 374 of 2012).  In relevant portion, the Court stated:

“Participation of the people necessarily requires that the information be availed to the members of the public whenever public policy decisions are intended and the public be afforded a forum in which they can adequately ventilate them.”

d) Fourth, public participation does not dictate that everyone must give their views on the issue at hand. To have such a standard would be to give a virtual veto power to each individual in the community to determine community collective affairs. A public participation programme, must, however, show intentional inclusivity and diversity.  Any clear and intentional attempts to keep out bona fide stakeholders would render the public participation programme ineffective and illegal by definition.  In determining inclusivity in the design of a public participation regime, the government agency or Public Official must take into account the subsidiarity principle: 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.

e) Fifth, the right of public participation does not guarantee that each individual’s views will be taken as controlling; the right is one to represent one’s views – not a duty of the agency to accept the view given as dispositive.  However, there is a duty for the government agency or Public Official involved to take into consideration, in good faith, all the views received as part of public participation programme.  The government agency or Public Official cannot merely be going through the motions or engaging in democratic theatre so as to tick the Constitutional box.

f) Sixthly, the right of public participation is not meant to usurp the technical or democratic role of the officeholders but to cross-fertilize and enrich their views with the views of those who will be most affected by the decision or policy at hand.”

  1. The Petitioner did not question public participation. The court was not told that the Applicant was ignored. Further, there are no allegations that the road specifications were changed.
  2. There is no basis for public programmes to be changed, after completion to suit private interest. The Applicant fraudulently stated that only one vehicle would be used per month while applying for a change of user. He now wants the court to believe that the road has been affected. The notice on the vehicular traffic, not exceeding 10 tonnes is tied to the road specification.
  3. The inventory of all roads is set out in Schedule 3,5 to the Roads Act, 2007. There is no disputation as to the classification. The Respondents cannot re-classify the roads. Whether or not there is a notice on the tonnage, the classification and specification gives, the maximum tonnage.

  1. I, therefore, find that the petitioner has no right to change road specifications. He is not entitled, to have vehicles over 10 tonnes pass. It is surprising that the suppliers who have the vehicles of the tonnage above have not complained. The petitioner has no justifiable cause in challenging the tonnage on the road. In the decision of Samuel Muigai Ng'ang'a V The Minister For Justice, National Cohesion & Constitutional Affairs & another [2013] eKLR, justice Isaac Lenaola, as then he was, stated as follows:-

“This court has had occasion to deal with justiciability or the political question doctrine on several occasions. In Trusted Society of Human Rights Alliance vs Attorney General & Others Petition No.229/2012. The Court in that case differentiated a justifiable controversy (which is amenable to judicial review) and a policy decision by the political branches of government (which is a “political question” inappropriate for judicial review). The court stated thus;

“The justiciability doctrine expresses fundamental limits on judicial power in order to ensure that courts do not intrude into areas committed to the other branches of government. The arguments on this issue are based on the foundational doctrine of separation of powers and its application to the case at hand.”

  1. In the case of Mwende Maluki Mwinzi v Cabinet Secretary, Ministry of Foreign Affairs & 2 others [2019] eKLR, Justice JA Makau stated as doth: -

“60. In the case of Coalition for Reform of Democracy (CRD) and 2 others vs Republic of Kenya & another HCCCP 628 of 2004 (2015) eKLR, the Supreme Court cited the case of Patrick Ouma Onyango & 12 others vs AG & 2 others Misc. App. 677 of 2005 where the court had endorsed the doctrine of justiciability as stated by Lawrence H. Tribe in his treatise American Constitutional Law, 2nd Ed. page 92 as follows:-

"In order for a claim to be justiciable as an article III matter, it must “present a real and substantial controversy which unequivocally calls for adjudication of the rights asserted.” In part, the extent to which there is a 'real and substantial controversy is determined under the doctrine of standing' by an examination of the sufficiency of the stake of the person making the claim, to ensure the litigant has suffered an actual injury which is fairly traceable to challenged action and likely to be redressed by the judicial relief requested. The substantiality of the controversy is also in part a feature of the controversy itself - an aspect of ‘the appropriateness of the issues for judicial decision...and the actual hardship of denying litigants the relief sought. Examination of the contours of the controversy is regarded as necessary to ensure that courts do not overstep their constitutional authority by issuing advisory opinions. The ban on advisory opinion is further articulated and reinforced by judicial consideration of two supplementary doctrines: that of 'ripeness' which requires that the factual claims underlying the litigation be concretely presented and not based on speculative future contingencies and of 'mootness' which reflects the complementary concern of ensuring that the passage of time or succession of events has not destroyed the previously live nature of the controversy. Finally, related to the nature of the controversy is the 'political question' doctrine, barring decision of certain disputes best suited to resolution by other governmental actors."

61. I therefore find, that this petition is based on issues, that are purely within the jurisdiction of the Executive and the National Assembly. It concerns a process, that is incomplete and pending and lastly, the controversy in my view is political.  I, therefore, find the petition herein is non-justiciable and that it does not present a controversy requiring the intervention of this court.”

  1. The size of the road relates to the decision of the executive on how to allocate funds this court cannot direct the government on how to allocate funds. On a more crucial point, the road is already made. It is done to the specification of the for 10 tonnes.
  2. Article 20(5) provides as follows: -

“(5) In applying any right under Article 43, if the State claims that it does not have the resources to implement the right, a court, tribunal or other authority shall be guided by the following principles––

  1. it is the responsibility of the State to show that the resources are not available; (b) in allocating resources, the State shall give priority to ensuring the widest possible enjoyment of the right or fundamental freedom having regard to prevailing circumstances, including the vulnerability of particular groups or individuals; and (c) the court, tribunal or other authority may not interfere with a decision by a State organ concerning the allocation of available resources, solely on the basis that it would have reached a different conclusion.
  2. Within this right, includes the right to good roads. However, the respondent has a right to plan on the roads to be built.  The Petitioner has to have a legitimate expectation and not fanciful thinking. In the case of Safaricom Kenya Limited v Communications Authority of Kenya; Homeland Group (Interested Party) (Appeal 1 of 2021) [2021] KECMAT 229 (KLR) (1 October 2021) (Judgment),, the court stated as follows: -

“To properly address this issue we must look at what a legitimate expectation is and whether it existed in this circumstance. This principle was well articulated by the Supreme Court of Canada in Canada (Attorney General) v Mavi, [2011] 2 SCR 504, thus: -

“(68) Where a government official makes representations within the scope of his or her authority to an individual about an administrative process that the government will follow, and the representations said to give rise to the legitimate expectations are clear, unambiguous and unqualified, the government may be held to its word, provided the representations are procedural in nature and do not conflict with the decision maker’s statutory duty. Proof of reliance is not a requisite”

  1. All dreams are valid. However not all are legitimate. To be legitimate there must be presentation that there was to be forbearance or at least that the government body will not act in a certain way. It does not occur when those expectations are not from the government agency. No one expects the respondents to know all needs by every one some needs and wants will have to give way to public good. In National Director of Public Prosecutions v Phillips and others. [2002] (4) SA 60 (W) para 28, Hehe J, stated;

“The law does not protect every expectation but only those which are 'legitimate'. The requirements for legitimacy of the expectation, include the following:(i)The representation underlying the expectation must be 'clear, unambiguous and devoid of relevant qualification';(ii)The expectation must be reasonable:(iii)The representation must have been induced by the decision-maker;(iv)The representation must be one which it was competent and lawful for the decision-maker to make without which the reliance cannot be legitimate.”(See also President of the Republic of South Africa and others v South African Rugby Football Union and Others [2000] (1) SA 1 (CC) para 216, and Communications Commission of Kenya and 5 others v Royal Media Services Limited and 5 others [2014] e KLR).”

  1. There must be some kind of reasonableness in the expectation. For example to demand that a road built using public resources to certain specifications to be used outside its prescribed tonnage is fanciful thinking. In the case Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR, the Supreme Court stated that:-

“[264]In proceedings for judicial review, legitimate expectation applies the principles of fairness and reasonableness, to the situation in which a person has an expectation, or interest in a public body retaining a long-standing practice, or keeping a promise.

[265] An instance of legitimate expectation would arise when a body, by representation or by past practice, has aroused an expectation that is within its power to fulfil. A party that seeks to rely on the doctrine of legitimate expectation, has to show that it has locus standi to make a claim on the basis of legitimate expectation.

[266] Wade and Forsyth in their work, Administrative Law, 10th ed (pages 446-448), discuss the relevant legal principles on legitimacy of an expectation. For an expectation to be legitimate, it must be founded upon a promise or practice by the public authority, that is said to be bound to fulfil the expectation. Citing the House of Lord’s decision in R. v. DPP ex p. Kebilene [1999] 3 WLR 972(HL), the learned authors observe that a statement made by a Minister cannot found an expectation that an independent officer will act in a particular way. They cited the case, R. v. Secretary of State for Education and Employment, ex p. Begbie [2000] 1 WLR 1115 (CA), where the Court of Appeal held that an election promise made by a Shadow Minister did not bind the responsible Minister after a change of government.  The authors cite the House of Lord’s decision in R. v. DPP ex p. Kebilene, for the principle that clear statutory words override any expectation howsoever founded.

[267] The principle is well reflected in judicial practice in Kenya.  A relevant excerpt from Republic v. Nairobi City County & Another ex parte Wainaina Kigathi Mungai, High Court Judicial Review Misc. case No. 356 of 2013; [2014] eKLR thus reads [paragraph 33]:

“…the legal position is that legitimate expectation cannot override the law. This was the position in Republic vs. Kenya Revenue Authority, ex parte Aberdare Freight Services Limited [2004] 2 eKLR 530 where it was held:

‘…a public authority may not vary the scope of its statutory powers and duties as a result of its own errors or the conduct of others. Judicial resort to estoppel in these circumstances may prejudice the interests of third parties. Purported authorisation, waiver, acquiescence and delay do not preclude a public body from reasserting its legal rights or powers against another party if it has no power to sanction the conduct in question or to endow that party with the legal right or inventory that he claims… Legitimate expectation is founded upon a basic principle of fairness that legitimate expectation ought not be thwarted – that in judging a case a judge should achieve justice, weigh the relative ‘strength of expectation’…”

[268] An illuminating consideration of the concept of “legitimate expectation” is found in the South African case,South African Veterinary Council v. Szymanski 2003(4) S.A. 42 (SCA) at [paragraph 28]: the Court held as follows:

“The law does not protect every expectation but only those which are 'legitimate'. The requirements for legitimacy of the expectation include the following:   

i.    The representation underlying the expectation must be 'clear, unambiguous and devoid of relevant qualification': De Smith, Woolf and Jowell (op cit [Judicial Review of Administrative Action 5th ed] at 425 para 8-055). The requirement is a sensible one. It accords with the principle of fairness in public administration, fairness both to the administration and the subject. It protects public officials against the risk that their unwitting ambiguous statements may create legitimate expectations. It is also not unfair to those who choose to rely on such statements. It is always open to them to seek clarification before they do so, failing which they act at their peril. 

(ii) The expectation must be reasonable: Administrator, Transvaal v. Traub (supra [1989 (4) SA 731 (A)] at 756I - 757B); De Smith, Woolf and Jowell (supra at 417 para 8-037).

ii.   The representation must have been induced by the decision- maker: De Smith, Woolf and Jowell (op cit at 422 para 8-050); Attorney- General of Hong Kong v. Ng Yuen Shiu [1983] 2 All ER 346 (PC) at 350h - j.

iii.  The representation must be one which it was competent and lawful for the decision-maker to make without which the reliance cannot be legitimate: Hauptfleisch v. Caledon Divisional Council 1963 (4) SA 53 (C) at 59E - G.”

This was also referred to with approval in Walele v. City of Cape Townand Others; 2008 (6) S.A 129 (C.C.) paragraph 41.

[269] The emerging principles may be succinctly set out as follows:

  1. there must be an express, clear and unambiguous promise given by a public authority;
  2. the expectation itself must be reasonable;
  3. the representation must be one which it was competent and lawful for the decision-maker to make;and
  4. there cannot be a legitimate expectation against clear provisions of the law or the Constitution.

[270] Nambuye and Maraga JJ.A., in their Judgment, found that the 1st and 2nd respondent’s through their consortium, National Signals Networks, were entitled to a BSD licence on account of “massive infrastructural investment” in the broadcast industry.  In particular, Nambuye J.A. stated as follows [paragraph 103]:

“There has been no mention in the paperwork before me to show that they are disentitled to a licence otherwise than by reason of what was put before me as a reason for excluding them from the tendering process. Since Article 40 stipulates protection of intellectual property, appellants have a right to protect what they own. As Senior [Counsel Mr.] Muite put it, they want to continue doing what they know best. They are willing to migrate as they are. There is no mention in any of the policy documents assessed that it is impossible to consider application for licensing other than through tendering process. As such there is nothing wrong in appellants asking to be licensed as they are. Considering that they already have infrastructure in place and are holding onto convertible frequencies.”

  1. It does not pay to isolate a few clauses in the constitution and brandish them. The constitution is one whole living document. Within the constitution there is clause 232 that has prudent use of resources as its integral part. The court cannot legitimately allow wastage of resources to please one person who can adjust to new realities. The value of land is still appreciating and as such there was no loss of right to property. In the case of Centre for Rights Education and Awareness (CREAW) & 7 others v Attorney General [2011] eKLR, the Court observed as follows: -

“In interpreting the Constitution, the letter and the spirit of the supreme law must be respected. Various provisions of the Constitution must be read together in order to get a proper interpretation. In the Ugandan case of TINYEFUZA vs. ATTORNEY GENARAL, CONSTITUTIONAL APPEAL NO. 1 OF 1997, the court held as follows: “The entire Constitution has be read as an integrated whole and no one particular provision destroying –

the other but each sustaining the other. This is the rule of harmony, rule of completeness and exhaustiveness and the rule of paramountcy of the written Constitution.”

A similar principle was enunciated by the United States Supreme Court in SMITH DAKOTA vs. NORTH CAROLINA 192 U.S. 268 [1940]. The court stated: “It is an elementary rule of Constitutional construction that no one provision of the Constitution is to be segregated from the others and to be considered alone but that all the provisions bearing upon a particular subject are to be brought into view and to be interpreted as to effectuate the great purpose of the instrument.”

  1. There can be no legitimate expectation to an illegality. In the case of Rawal v Judicial Service Commission & another; Okoiti (Interested Party); International Commission of Jurists & another (Amicus Curiae) (Civil Appeal 1 of 2016) [2016] KECA 534 (KLR) (27 May 2016) (Judgment), the court of Appeal GBM KARIUKI, MSA MAKHANDIA, W OUKO, PO KIAGE, K M'INOTI, J MOHAMMED & JO ODEK, JJA, stated as doth; -

“The appellant’s claim for legitimate expectation is founded on section 9 of the Judicature Act as read with section 31 (1) of the Sixth Schedule and the 1st respondent’s decision of 24th May 2011 that the retirement age for judges appointed under the former Constitution was 74 years. Subsequently the 1st respondent violated the appellant’s legitimate expectation by its second decision communicated on 27th March 2014 determining that the retirement age for all judges is 70 years. Accordingly, the appellant claims that the 1st respondent changed goalposts and took a diametrically opposite position and violated her legitimate expectation to retire at the age of 74 years.

121.The decision of the Supreme Court that we have just cited adds that legitimate expectation involves a representation that must be one which it was competent and lawful for the decision-maker to make without which the reliance cannot be legitimate. Other important aspects of the doctrine is that the law does not protect every expectation save only those which are legitimate (South African Veterinary Council v. Szymanski 2003 ZASCA 11); clear statutory words override any contrary expectation, however founded (R. v. DPP ex parte Kebilene and Republic v Nairobi City County & Another, ex parte Wainaina Kigathi Mungai, HC. JR. Misc. C. No 356 of 2013; the representation must be one which the decision-maker can competently and lawfully make without which the reliance cannot be legitimate Hauptfleisch v Caledon Divisional Council [1963] (4) SA 53); legitimate expectation does not arise when it is madeultra vires the decision-maker’s powers (Rowland v Environment Agency [2003] EWCA Civ. 1885; and a public authority which has made a representation which it has no power to make is not precluded from asserting the correct position which is within its power to make (Republic v Kenya Revenue Authority, ex parte Aberdare Freight Services Ltd [2004] 2 KLR 530).

122.A pertinent question in this appeal is whether the 1st respondent’s decision of 24th May 2011 created a legitimate expectation on the part of the appellant that she would retire at 74 years. Was this decision a promise to the appellant that she would serve and hold office as a judge until the age of 74 years? In our view, the 1st respondent’s decisions on the retirement age of judges are a reflection of its diverse interpretation of section 31 (1) of the Sixth Schedule to the Constitution and Article 167 (1) of the Constitution which we have held under the Constitution could not be final and authoritative. That the appellant could not possibly have been misled into believing that she would retire at 74 years of age is also evident from the advertisements that the respondents caused to be published in two daily newspapers, The Star of Thursday, 8th November 2012 and The Standard of Tuesday, 4th December 2012 regarding the vacancy in the office of the Deputy Chief Justice and Vice President of the Supreme Court. Those advertisements were crystal clear that the office was a constitutional office and that the retirement age was 70 years with an option to retire on attaining the age of 65 years. These advertisements were more than one and half years after the decision of 24th May 2011 that the appellant claims to have constituted the basis of her legitimate expectation that she would retire at 74 years of age.

123.To quote the Supreme Court again in Communication Commission of Kenya & 5 others v. Royal Media Services & 5 others (supra):(288)What is the legal effect of such general policy statements, in relation to the Commission, or to the public? Are they capable of being a basis for a legitimate expectation that the 1st appellant ought not to abrogate?...[290] It was not possible, in our view, for a general statement of policy by the Government, however clear or unambiguous, to be attributed to, or construed as a promise by CCK to the media-fraternity, that the grant of licences would take a particular course. Policy statements by the Government cannot confer or assure a promise of a specific benefit to third parties, so as to be enforceable against a particular public institution even where that institution is vested with the mandate to perform the task in respect of which the Government has given a clear promise. This is because under the Kenya Information and Communications Act, 1998, the Government is not a decision maker on issues of BSD licensing and, by extension, had no competence, or lawful basis to make a binding promise that such licensing would ensure a ‘maximization of use of broadcast infrastructure.”

  1. Constitutional rights are not absolute and are subject to the qualification set out under Article 24 of the Constitution which provides-

A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including–

(a)    the nature of the right or fundamental freedom;

(b)    the importance of the purpose of the limitation;

(c)   the nature and extent of the limitation;

(d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and

(e)    the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose,

  1. The State or a person seeking to justify a particular limitation shall demonstrate to the court, tribunal or other authority that the requirements of this Article have been satisfied.
  2. Related to section 70 of the Kenya Roads Act, no. 2 of 2007. The said section provides as follows: -

“70. Consultation with users or departments

(1) In the performance of its functions or exercise of its powers under this Act, each Authority shall, where appropriate, consult with the Minister, other authorities, bodies or persons and users of its facilities and services.

(2) An Authority may establish such consultative mechanism as it deems appropriate to obtain the views of the users of its facilities and services.”

  1. The said section is irrelevant for purposes of this Petition. The Petition is not about being consulted about the road.  The petitioner relocated his business to the current location at Central Kitutu/Mwamosioma/2758.
  2. They Purport that the origin and design survey processes at Kisii Main Stage –Getare road was undertaken with businesses in situ. They stated that the suppliers cannot reach their business. This cannot be true.
  3. These particular assertions are false and cannot be sustained. Public participation was carried out. The Applicant did not raise any issue. The respondents cannot have knowledge of the business requirements without the parties themselves, presenting this. However, their main false aspect is that even persons checking records could not find that the Applicants needed ay more than one vehicle.
  4. The said parcel of land was bought on 22/12/2010, this was agricultural land. Transfer was done on 8/2/2011for the said parcel. The applicant made change of user, in march 2011. The change of user was from Agricultural to Institution (old People’s home. The said parcel was not developed. They stated that the development, which is indicated as go-downs was to conform with existing needs of the town.
  5. On traffic, they indicated in the Application that it has low traffic with average of 2 vehicles per month. They intended to introduce minimum changes to trip generation. The valuation done on 22/3/2018 indicates that the current value is 430,000,000/=. There is thus no loss of value of the suit land.
  6. Further, aspect of negligence were attributed to the Respondents. The road was concluded in 2018. No claim of negligence could be raised against the respondents under the public Authority limitation of Actions act.
  7. The Petitioner misled the county completely that there was to be no change of terms. All the allegations do not meet the threshold for grant of orders sought.
  8. The road was designed and building started after requisite consultations. The placing of the sign board does not change the fact that the approved designs were just that. The petitioner does not have a right to redesign the roads. The Petitioner’s building was built when the road was not even tarmacked and was designed to have 2 vehicles per month. There was no change of user to heavy commercial. The Petitioner has no right to demand the reallocation of funds to upgrade the road. He equally has no right to demand that a road be used other than it was designed.
  9. The right to property as provided under Article 40 of the Constitution does not include the right to a public road. Under Article 43, the state, cannot be directed how to allocate resources. This can only be done as a political choice. Article 43 provides as follows:

“43. (1) Every person has the right—

  1. to the highest attainable standard of health, which includes the right to health care services, including reproductive health care;
  2. to accessible and adequate housing, and to reasonable standards of sanitation;
  3. to be free from hunger, and to have adequate food of acceptable quality;
  4. to clean and safe water in adequate quantities;
  5. to social security; and
  6. to education.”
  7. This is also in line with Article 232 of the Constitution for effective, efficient, use of public services. The Article provides as follows: -

232. Values and principles of public service

(1) The values and principles of public service include—

(a) high standards of professional ethics;

(b) efficient, effective and economic use of resources;

(c) responsive, prompt, effective, impartial and equitable provision of services; (d) involvement of the people in the process of policy making (e) accountability for administrative acts;

(f) transparency and provision to the public of timely, accurate information;

g) subject to paragraphs (h) and (i), fair competition and merit as the basis of appointments and promotions;

(h) representation of Kenya’s diverse communities; and

(i) affording adequate and equal opportunities for appointment, training and advancement, at all levels of the public service, of— (

    1. men and women;
    2. the members of all ethnic groups; and
    3. persons with disabilities.
  1.   Article 40 of the Constitution states as follows: -

“40. Protection of right to property

(1) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property—

(a) of any description; and

(b) in any part of Kenya.

(2) Parliament shall not enact a law that permits the State or any person— (a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or

(b) to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27(4).

(3) The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation—

(a) results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or

(b) is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that—

(i) requires prompt payment in full, of just compensation to the person; and

(ii) allows any person who has an interest in, or right over, that property a right of access to a court of law.

(4) Provision may be made for compensation to be paid to occupants in good faith of land acquired under clause (3) who may not hold title to the land.

(5) The State shall support, promote and protect the intellectual property rights of the people of Kenya.

(6) The rights under this Article do not extend to any property that has been found to have been unlawfully acquired

  1. The rest of the constitutional provisions are irrelevant. There was no single contravention of the constitution. In the circumstances, I find that the petition lacks merit. The next question is whether to grant costs to the Respondents. This was not a constitutional petition in public interest but for a narrow private interest.
  2. The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR, as follows: -

“[18] It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, before, during, and subsequent to the actual process of litigation…. Although there is eminent good sense in the basic rule of costs– that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases.

  1. The event herein is the dismissal of the petition and as such I dismiss the same with costs to Respondents.

Determination

  1. The upshot of the foregoing, I make the following orders: -
  2. The Petition lacks merit and is accordingly dismissed with costs.
  3. The file is closed.

DELIVERED, DATED and SIGNED at Nairobi on this 20th day of March, 2024. Judgment delivered through Microsoft Teams Online Platform.


In the presence of: -

No appearance for the Appellant

Makura for the Respondent

Court Assistant – Millicent Thaithi/Kimoine

    SCOOBY ENTERPRISES LTD VS KENYA URBAN ROADS AUTHORITY AND KISII COUNTY GOVERNMENT SCOOBY ENTERPRISES LTD VS KENYA URBAN ROADS AUTHORITY AND KISII COUNTY GOVERNMENT