Brief Background;
1. The Applicant made an application to the 1stRespondent to operate its transport business within the CBD through the lucrative GPO, Ambassador Hotel and KENCOM termini on 6thFebruary 2023.
2. On the 23rd February 2023 the 1st Respondent through the 2nd Respondent authorized the Applicant to operate as such.
3. However, on 2nd March 2023 the 1st Respondent revoked the said authority.
4. Being dissatisfied, The applicant has moved this court through the application dated 15thday of March 2023 wherein it seeks for;
A. An order of certiorari to remove into the High Court for the purpose of its being quashed the 2nd Respondent’s decision contained in the letter dated 2/3/2023 purportedly revoking the authority granted to the Applicant on 23/2/2023 authorizing it and its members to pick-up and drop-off passengers at the Kencom Bus terminus, Ambassador Hotel and General Post Office (GPO) termini.
B. An order of mandamus compelling the 1st, and 2nd Respondents to involve the Applicant as a bona fide stakeholder, in any decision-making process of the revocation of authority to it or any public transport operator to pick up and drop off passengers at the Kencom Bus Terminus, Ambassador Hotel and General Post Office (GPO) termini.
C. An order of prohibition prohibiting the 1st and 2nd Respondent from revoking the Applicant’s authority to pick up and drop off passengers at the Kencom Bus Terminus, Ambassador Hotel and General Post Office (GPO) termini unless the laid down legal procedures and rules of natural law and justice are applied.
D. An order of prohibition prohibiting the 3rd Respondent from acting upon, considering and/or revoking the license (s) of any of the Applicant’s members based on any information and/or recommendation by any entity based on the strength of the impugned notice of revocation dated 2/3/2022.
E. A declaration that the decision of the 2nd Respondent dated 2nd March 2023 revoking the authority granted to pick up and drop passengers at the Kencom Bus terminus, Ambassador Hotel, and General Post Office (GPO) termini was and/is invalid and void and of no effect.
F. The Applicant be awarded the costs of the Judicial Review proceedings.
G. Such further and other relief be granted to the applicant as this court deems fit.
H. The Application is supported by the affidavit of Nelson Nduki.
The Applicants case;
5. The applicant is aggrieved because the 1st and 2nd Respondents revoked its license unilaterally and without giving it an opportunity to be heard.
6. The 1st and 2nd Respondent have admitted in their Replying Affidavit dated 9th June 2023 at paragraph 13 that the decision to revoke the authority was arrived at after consultations between the 1stRespondent’s sector and security agencies.
7. The 1st and 2nd Respondent did not give the Applicant notice of any charge against it and also did not give the applicant a hearing or chance to defend itself before reaching the decision/deciding to revoke the authority pick-up and drop-off passengers at the Kencom Bus terminus, Ambassador Hotel and General Post Office (GPO) termini.
8. The Applicant submits that there was no legitimate reason to revoke the license since it had complied with all relevant provisions of law as required by the 1stRespondent.
9. Reliance is placed on the case of ; Republic Vs Kenya National Examination Council Ex parte Gathenji and others Civil Appeal No.266 of 1996,where the Court of Appeal stated inter alia: ‘’that an order of certiorari can only quash a decision already made and an order of certiorari will issue if the decision is without jurisdiction or in excess of jurisdiction or where the rules of natural justice are not adhered to or any other reasonable cause. It is trite law that the remedy of Judicial Review is not concerned with the merits of the case but the decision-making process. In order for an applicant to succeed in an application for Judicial Review, he must satisfy the court that a public officer has acted unprocedurally, that his decision was unreasonable and that the impugned decision was illegal.”
10. Further reliance is placed on the case of Zachariah Wagunza &Another v Office of the Registrar, Academic Kenyatta University & 2 others (2013) eKLR the court reiterated the broad grounds on which the court exercises its judicial review jurisdiction as was stated in the Uganda case of Pastoli vs Kabale District Local Government council and Other (2008) 2 EA 300, and observed among other things that:
“In order to succeed in an application for Judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: Illegality is when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires or contrary to the provision of law or its principles are instances of illegality...
Irrationality, is when there is such gross unreasonableness in the decision taken or act done that no reasonable authority, addressing itself to the facts and the law before it would have made such a decision is usually in defiance of logic and acceptable moral standards.
Procedural Impropriety, is when there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in nonobservance of the Rules of Natural Justice act or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative instrument by which such authority exercises jurisdiction to make a decision.”
11. The applicant is aggrieved by The 2nd Respondent’s non-observance of the Rules of Natural Justice and the 2nd Respondent’s failure to act with procedural fairness towards the Applicant, which was the main entity to be affected by the decision to revoke the authority granted on 23/2/2023.
12. In the case of Onyango Oloo Vs Attorney General (1989) EA the court of appeal held that: -
“The principle of natural justice applies where ordinary people would reasonably expect those making the decisions which will affect others to act fairly, and they cannot act fairly and be seen to have acted fairly without giving an opportunity to be heard is a presumption in the interpretation of statutes that the rules of natural justice will apply and therefor the authority is required to apply the principles of natural justice. A decision in breach of natural justice is not cred by holding that the decision would otherwise have been right since the principle of natural justice is violated, it matters not the same decision would have been arrived at…”
13. It argues that The 1st Respondent’s decision smacks of illegality, irrationality and procedural impropriety.
The Respondent's case;
14. The application is opposed through the replying affidavit of Boniface Nyamu the Chief Officer, Mobility of the 1stRespondent who admits that the 1st Respondent issued a Letter dated 23rdFebruary, 2023 to the Applicant authorizing the Applicant’s vehicles to pass through Kencom, Ambassador and GPO.
15. He argues that the Applicant herein misconstrued the contents of the 1st Defendant’s letter dated 23rd February, 2023 to fit and serve the Applicant’s own motive and purpose.
16. The said letter only conferred authority to the Applicant to pass through Kencom, Ambassador and GPO and not to operate from the said stations and the letter was also conditional to the Applicant making mandatory seasonal parking tickets which the Applicant has not demonstrated.
17. The Applicant proceeded to park its motor vehicles where other public service vehicles operate thus obstructing their operations causing commotion in the Central Business District (CBD) wherein other operators conspired and blocked the roads causing a heavy snarl up in the Central Business District (CBD) leading to a huge outcry from both motorists and other citizens
18. It is his case that after further consultations between the 1stRespondent’s sector and security agencies, it was agreed that the authority be revoked pending further deliberations.
Analysis and determination;
19. It is not denied that on 23rd February 2023 the 1st Respondent through the 2nd Respondent authorized the Applicant to operate through Kencom bus terminus, Ambassador Hotel and General Post Office (GPO) termini.
20. The Respondent argues that it knew that the Applicant failed to remove its vehicles from the spot that they felt were not within the scope of the authority that it gave to the Applicant and that caused a heavy snarl up in the Central Business District (CBD) leading to a huge outcry from both motorists and other citizens.
21. The Respondent admits that it engaged in consultations between the 1stRespondent’s sector and security agencies, wherein it was agreed that the applicant’s authority be revoked pending further deliberations.
22. The Respondents clearly appreciated the need to consult and actually proceeded to consult other entities other than the Applicant before arriving at the adverse decision. The Applicant was not given an opportunity to present its case before proceeding to revoke its authority.
23. In the case of Sceneries Limited (Supra), the court stated as follows:
a. “The right of a person to defend him/herself in the face of a decision potentially affecting his/ her rights or interests necessarily implies that the person must receive prior notice of the facts on which the decision will be based. Failure to give proper notice is itself a denial of natural justice and of fairness. The notice must be communicated to the interested party, preferably in writing. In addition to specifying the date and place of the hearing, the notice must be sent in a timely manner (i.e., sufficiently in advance of the hearing), adequately describing the relevant facts and allegations so that a party may respond to them and outlining who will be present at the hearing, what the hearing will entail and the possible effects the decision may have on the rights and interests of the person.”
24. Article 47 (1) of the Constitution states as follows;
“Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair”
25. Article 47(2)
“If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.”
26. Article 47 has now been effectuated by the Fair Administrative Action Act, 2015 under which section 4(3) provides as follows:
“Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision-
(a) prior and adequate notice of the nature and reasons for the proposed administrative action;
(b) an opportunity to be heard and to make representations in that regard;
(c) notice of a right to a review or internal appeal against an administrative decision, where applicable;
(d) a statement of reasons pursuant to section 6;
(e) notice of the right to legal representation, where applicable;
(f) notice of the right to cross-examine or where applicable; or
(g) information, materials and evidence to be relied upon in making the decision or taking the administrative action.
27. Halsbury Laws of England, 5th Edition 2010 Vol. 61 at para 639 on the right to be heard states that:
“The rule that no person is to be condemned unless that person has been given prior notice of the allegations against him and a fair opportunity to be heard (the audi alteram partem rule) is a fundamental principle of justice. This rule has been refined and adapted to govern the proceedings of bodies other than judicial tribunals; and a duty to act in conformity with the rule has been imposed by the common law on administrative bodies not required by statute or contract to conduct themselves in a manner analogous to a court.”
28. Article 50(1) provides that every person has a right to have any dispute that can be resolved by the application of the law decided in a fair and public hearing before a court or an independent and impartial tribunal or body.
29. The twin rules of natural Justice that no man shall be a Judge in his own cause (Nemo Judex in causa sua) and that no man shall be condemned unheard (audi alteram partem)are cardinal principles of law which are fundamental in our Justice system. They are basically an embodiment of the duty to act fairly. However, there is no legal definition or standard regarding what constitutes procedural fairness and each case must be decided on its own merits.
Can order of Certiorari issue;
30. In the case of Pastoli vs KabaleDistrict Local Government Council & Others, (2008) 2 EA 300,it was held that:
a) “In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala, Miscellaneous Application Number 643 of 2005 (UR).
b) Illegality is when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality….
c) Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re An Application by BukobaGymkhana Club [1963] EA 478 at page 479 paragraph “E”.
d) Procedural impropriety is when there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876).”
31. Section 4 The Fair Administrative Action Act,2015 provides thus; “Administrative action to be taken expeditiously, efficiently, lawfully etc.
(1) Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.
32. Section 4(6) provides thus; Where the administrator is empowered by any written law to follow a procedure which conforms to the principles set out in Article 47 of the Constitution, the administrator may act in accordance with that different procedure.
33. In the instant case, it is this courts’ finding that the Respondent acted unfairly when it revoked the Applicants license unilaterally thereby offending Section 4(6) of The Fair Administrative Action Act.
34. The Respondent made no attempt to notify or invite the Applicant before taking the drastic action. The fact that there was a traffic snarl up in the CBD as a result of the Applicant’s conduct cannot justify the Respondent’s drastic action.
35. The right to fair hearing under Article 50 of the Constitution is non-negotiable.
36. It is this court’s finding and I so hold that the Respondents acted illegally.
Can the order of prohibition issue;
37. In order to determine this issue, I am guided by the case of Republic v Principal Kadhi, Mombasa Ex-parties Alibhai Adamali Dar & 2 others; Murtaza Turabali Patel (Interested Party) [20221 eKLR, where the Court rendered itself thus:
a) "The Order of "Prohibition" issues where there are assumptions of unlawful jurisdiction or excess of jurisdiction. It's an order from the High Court directed to an inferior tribunal or body as in this case the Kadhi’s Court. Its functions is to prohibit and/or forbids encroachment into jurisdiction and further to prevent the implementation of orders issued when there is lack of jurisdiction."
b) "Although prohibition was originally used to prevent tribunals from meddling with cases over which they had no jurisdiction, it was equally effective and equally often used, to prohibit the execution of some decision already taken but ultra vires. So long as the tribunal or administrative authority still had power to exercise as a consequence of the wrongful decision, the exercise of that power could be restrained by prohibition. Certiorari and prohibition frequently go hand in hand, as where certiorari is sought to quash the decision and prohibition to restrain its execution. But either remedy may be sought by itself."
38. In the case of Kenya National Examination Council versus Republic ex parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR, the Court stated the grounds upon which such an order may issue as follows;
a) “What does an order of prohibition do and when will it issue" It is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings – See HALSBURY&39; S LAW OF ENGLAND, 4th Edition, and Vol.1 at pg. 37 paragraphs 128”.
b. Having made a finding that the Respondents acted illegally, this court cannot allow an illegality to remain in force. An order of prohibition is hereby issued as sought.
Can the order of Mandamus issue;
39. The Court of Appeal while addressing its mind on the scope and efficacy of an order of Mandamus in the case of Kenya National Examination Council vs Republic Ex Parte Geoffrey Gathenji Njoroge & Another stated as follows;
a. “The next issue we must deal with is this: What is the scope and efficacy of an ORDER OF MANDAMUS? Once again we turn to HALSBURY’S LAW OF ENGLAND, 4th Edition Volume 1 at page 111 FROM PARAGRAPH 89. That learned treatise says: -
b. “The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.”
c. At paragraph 90 headed “the mandate” it is stated:
d. “The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.”
e. What do these principles mean? They mean that an order of mandamus will compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed.
40. Having found that the Respondents acted illegally, this court is satisfied that the applicant has made out a case for the grant of an order of mandamus as sought.
Is the Applicant entitled to costs;
41. The Applicant is entitled to costs in this case. In arriving at this finding, this court is guided by the case of Jabir Singh Rai & 3 others v Tar lochan Singh Rai & 4 others Petition No. 4 of 2012 [2014] where the Court reiterated that costs follow the event.
Disposition;
42. The Applicant has made out a case for the grant of the orders sought.
Order;
1. An order of certiorari is hereby issued removing into this Court for the purpose of its being quashed the 2nd Respondent’s decision contained in the letter dated 2/3/2023 purportedly revoking the authority granted to the Applicant on 23/2/2023 authorizing it and its members to pick-up and drop-off passengers at the Kencom Bus terminus, Ambassador Hotel and General Post Office (GPO) termini.
2. An order of mandamus is hereby issued compelling the 1st, and 2nd Respondents to involve the Applicant as a bona fide stakeholder, in any decision-making process of the revocation of authority to it or any public transport operator to pick up and drop off passengers at the Kencom Bus Terminus, Ambassador Hotel and General Post Office (GPO) termini.
3. An order of prohibition is hereby issued prohibiting the 1st and 2nd Respondent from revoking the Applicant’s authority to pick up and drop off passengers at the Kencom Bus Terminus, Ambassador Hotel and General Post Office (GPO) termini unless the laid down legal procedures and rules of natural law and justice are applied.
4. An order of prohibition is hereby issued prohibiting the 3rd Respondent from acting upon, considering and/or revoking the license (s) of any of the Applicant’s members based on any information and/or recommendation by any entity based on the strength of the impugned notice of revocation dated 2/3/2022.
5. A declaration is hereby issued to the effect that the decision of the 2nd Respondent dated 2nd March 2023 revoking the authority granted to pick up and drop passengers at the Kencom Bus terminus, Ambassador Hotel, and General Post Office (GPO) termini was and/invalid and void and of no effect.
6. Costs to the Applicant.