'1. This is a motion dated 16 April 2024, expressed to be brought under order 53 rule 3 of the Civil Procedure Rules. It seeks the following orders:
“1. An order of certiorari be issued to bring to this court several decisions of the County Government of Mombasa made on diverse dates (as contained in the schedule below) in regard to overcharged parking charges for the purpose of quashing them.
Schedule:
TRUCK AMOUNT (KES) DATE OF THE DECISION
KCD126L 55,500 10.11.2023
KCS258T 109,200 15.5.2023
KCWS37X 73,500 11.09.2023
KDCS19K 43,800 19.12.2023
KDM950V 72,600 14.09.2023
KDN819T 20,100 7.03.2024
KCX471L 139,500 03.02.2023
KCX679B 32,700 25.01.2024
KDC409N 37,800 08.01.2024
2. An order of Prohibition to prohibit the Respondent, the County Government of Mombasa, from clamping or in any way detaining, the Applicants motor vehicles registration KCD 126 L, KCW 537 X, KDC 519 K, KDM 950 V, KDN 819 T, KCX 471 L, KCX 679 B AND KDC 409 N in an attempt to enforce parking fees as listed in the schedule under order 1 above.
3. An order of mandamus be issued compelling County Government of Mombasa to receive a one day parking fees for each of the Applicant''s motor vehicles tagged by the Respondent.
4. An order of mandamus be issued compelling County Government of Mombasa to pay the Applicant a sum of USD 5,600.00, for loss of earnings from KCS 258 T, and Ksh. 40,000.00 paid towards the security of the truck ·
5. Costs of this application be provided for.”
2. The application is based on a statutory statement dated 26 March 2024 and an affidavit sworn on even date by Benson Mwangi Ngumo, verifying the facts relied upon. Ngumo has described himself as the managing director of the applicant.
3. According to Ngumo, the applicant is based in Mombasa and is a transporter of bulk cargo across East Africa. It has a fleet of trucks and has its own private yard at Bonje, Mazeras where the trucks are parked. The applicant does not use public parking yards to park its trucks.
4. However, recently the applicant learnt that a number of its trucks allegedly owes and continue to incur daily parking charges, charged by the respondent.
5. According to Ngumo, the applicant is not guilty of failure to pay parking fees. It is only that it was not notified by the respondent when the respondent raised the parking fees for the first time. He has sworn that it was the obligation of the respondent to notify the applicant immediately they raised the first parking fees.
6. In any event, the fees charged are exorbitant and punitive. The applicant''s legitimate expectation was to be notified of any parking fees due immediately it fell due.
7. At the time of filing the suit, the respondent had clamped and detained one of the applicant''s motor vehicle Registration Number KCS 258 T claiming parking fees at Ksh.109,200.00 which allegedly fell due on 15 May 2023 yet the only payable parking fee was for that particular day charged at Ksh.600.00.
8. The applicant is apprehensive that unless the orders sought are granted, the Respondent shall clamp all the other trucks, an exercise that shall highly prejudice the Applicant resulting into irreparable loss and damage.
9. It would appear the respondent did not file any sort of response to the application but submissions on its behalf were filed.
10. The submissions filed on behalf of the applicant largely rehash the depositions made in the affidavit verifying the facts relied upon. The applicant has added that courts have in several decisions held that, the remedy the judicial review is concerned with reviewing the decision-making process not the merits of the decision.
11. Further, it is submitted that courts have come up with grounds for judicial review which are; abuse of discretion; irrationality; excess of jurisdiction; improper motives; failure to exercise discretion; abuse of the rules of natural justice; fettering of discretion and error of law. In this submission, the applicant has relied on Republic vs Kenya revenue Authority ex parte Yaya Towers Limited 2008, Eklr.
12. On the part of the respondent, it has been submitted that the application is an attempt to evade legally accrued charges and that in any event, the charges could only be challenged by an ordinary suit. It is also urged that the charges cannot be disputed when the primary law upon which they are based has not been challenged.
13. To be precise, parking charges are levied pursuant to the Mombasa County Finance Act which is enacted in every financial year. The applicant has not faulted the law upon which the charges are pegged and, therefore, the charges are based on a valid law. In addition, the allegation that the charges are punitive and exorbitant cannot hold any water since the Applicant is not faulting the law on which the charges are based.
14. The respondent cited Republic v Principal Secretary, Ministry of Internal Security & another Ex-Parte Schon Noorani & another [2018] eKLR for the submission that mandamus is discretionary remedy and, in particular, there are certain conditions that ought to be complied with before the order of mandamus can be granted. These conditions have been stated to be as follows:
“(i) There must be a public legal duty to act;
(ii) The duty must be owed to the Applicants;
(iii)There must be a clear right to the performance of that duty, meaning that:
a. The Applicants have satisfied all conditions precedent; and
b. There must have been:
i. A prior demand for performance;
ii. A reasonable time to comply with the demand, unless there was outright refusal; and
iii. An express refusal, or an implied refusal through unreasonable delay;
(iv) No other adequate remedy is available to the Applicants;
(v) The Order sought must be of some practical value or effect;
(vi) There is no equitable bar to the relief sought;
(vii) On a balance of convenience, mandamus should lie.
15. The first port of call in applications for judicial review is always the grounds for judicial review. Without the grounds on which judicial review reliefs are sought, an application for judicial review would be fatally defective. I say so because, the point of entry for a judicial review court to intervene and check the powers of subordinate courts or tribunals or such other bodies whose powers are subject to judicial review is the grounds upon which the application is made.
16. Order 53 Rule 1(2) of the Civil Procedure Rules which is one of the provisions upon which the applicant’s application is made, states in mandatory terms that the statement accompanying the application must contain, among other things, the grounds upon which the application is made. It reads as follows:
(2) An application for such leave as aforesaid shall be made ex parte to a judge in chambers, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on. (Emphasis added).
17. And Order 53 Rule 4(1) states unambiguously that no grounds should be relied upon except those specified in the statement accompanying the application for leave.
18. The grounds to which reference has been made in these provisions of the law have not been left to speculation. They were enunciated in the English case of Council of Civil Service Unions versus Minister for the Civil Service (1985) A.C. 374,410. In that case, Lord Diplock set out the three heads which he described as “the grounds upon which administrative action is subject to control by judicial review”. These grounds are illegality, irrationality and procedural impropriety. While discussing susceptibility of administrative actions to judicial review and, in the process defining these grounds, the learned judge stated as follows:
“My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review. Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “illegality,” the second “irrationality” and the third “procedural impropriety.” That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of “proportionality” which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.
By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.
By “irrationality” I mean what can by now be succinctly referred to as “Wednesbury unreasonableness” (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court''s exercise of this role, resort I think is today no longer needed to Viscount Radcliffe''s ingenious explanation in Edwards v. Bairstow [1956] A.C. 14 of irrationality as a ground for a court''s reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. “Irrationality” by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review.
I have described the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all.”
19. These grounds of illegality, irrationality and procedural impropriety are ordinarily regarded as the traditional grounds for judicial review. The court will intervene and grant the remedy for judicial review if any of them is proved to exist. But as Lord Diplock suggested, the list is by no means exhaustive. The learned judge hastened to say that further development of this area of law may yield further grounds on a case by case basis. It is in this spirit, the learned judge suggested, that the principle of proportionality as a further ground for judicial review has been developed.
20. No doubt, the applicant is alive to the need to set out the grounds for judicial review because in submissions filed on its behalf, it has been urged that:
“The courts have in several decisions held that, the remedy the judicial review is concerned with is reviewing the decision-making process not the merits of the decision. The courts have also come up with grounds for judicial review which are; abuse of discretion; irrationality; Excess of jurisdiction; improper motives; failure to exercise discretion; abuse of the rules of natural justice; fettering of discretion and error of law. Such was the holding in Republic vs Kenya revenue Authority ex-parte Yaya Towers Limited 2008 Eklr”.
21. It behoved the applicant, therefore, to set out clearly the grounds of judicial review in the statement.
22. It has been held that since they form the foundation upon which the application for judicial review is based, the grounds for judicial review must be stated in precise, clear and unambiguous terms in the statement accompanying the application for leave.
23. While reiterating the importance of stating grounds for judicial review in concise and precise terms, Michael Fordham in his book, Judicial Review Handbook, at Paragraph 34.1 states as follows:
“The need to identify and express accurately the possible grounds for judicial review is not simply a matter of analytical nicety. It is one of practical necessity. The provisions of the new order require the accurate identification of (a) potentially applicable grounds and (b) the time at which they arose. Given the frequent presence of multiple targets, the elusive nature of certain grounds, their disarming interrelationship, and the understandable fear of missed opportunity, it is easy to see why public lawyers may feel tempted to ‘throw everything’ including grounds which are dangerously close to the inconceivable. This approach is unlikely to endear them to the court.”
24. The ‘new order’ referred to in this passage is Order 53 of the Rules of the Supreme Court of England whose provisions are more or less in pari materia with our own Order 53 of the Civil Procedure Rules, 2010. The point is, however, clear that courts will not entertain applications where grounds have not been identified and accurately stated. Stating the grounds in precise terms is not, as it were, a matter of analytical nicety but it is a practical necessity. It follows that where the grounds are not stated, the application is fatally defective as, strictly speaking, it has no foundation upon which it is built.
25. Although it has been urged in the applicant’s submissions that “the applicant has successfully illustrated and established that the respondent abused discretion by failing to notify the Applicant that it owed parking fees” and that “the Respondent acted in excess of jurisdiction by proceeding to clamp the Applicant vehicle”; and also that “the Respondent abused rules of natural justice by proceeding to clamp and charged penalties and interest without giving the Applicant a chance to be heard” none of these grounds has been set out clearly and unambiguously under the head of grounds in the statement as the grounds upon which the application has been made. These grounds could, of course, be subsumed under any of the traditional grounds of judicial review but the burden was always on the applicant to set them out clearly in the statement.
26. Under the law, the applicant could not purport to submit on the grounds that have not been specified in clear and unambiguous terms in the statement. This is apparent from Order 53 rule 4 (1) of the Civil Procedure Rules which states as follows:
4. Statements and affidavits [Order 53, rule 4]
(1) Copies of the statement accompanying the application for leave shall be served with the notice of motion, and copies of any affidavits accompanying the application for leave shall be supplied on demand and no grounds shall, subject as hereafter in this rule provided, be relied upon or any relief sought at the hearing of the motion except the grounds and relief set out in the said statement. (Emphasis added).
27. The closest the applicant came to stating the ground in the statement is what is pleaded in paragraph 3(o) of the statement where it has been stated that:
“The decision to charge the outrageous parking fees has not been communicated in writing to the Applicant. That decision is capricious, unreasonable, malicious, exorbitant and oppressive.”
28. This sounds like the ground of illegality but as I have noted, it is not for the court to speculate which of the grounds of judicial review the applicant is relying upon. The rest of the “grounds” in the statement are nothing more than the depositions made in the affidavit verifying the fact relied upon.
29. But even if the applicant is given the benefit of doubt and the court proceeds on the assumption that the application is based on the ground of illegality, I am not satisfied that this particular ground has been demonstrated to exist.
30. As earlier noted, this ground was defined in Council of Civil Service Unions versus Minister for the Civil Service to mean that the decision-maker does not understand correctly the law regulating his decision-making power and that he has not given effect to it.
31. There is no proof that the respondent does not understand the law regulating its power to levy the rates for parking of motor vehicles within its jurisdiction or that it has not given effect to the law.
32. As I understand the applicant, it is not aware of the law upon which the parking charges are based and its qualm with the respondent is that the respondent did not notify it either in good time or at all of the hike in the parking charges.
33. I do not find this argument to carry much weight because it is assumed that the law, which I understand to be Mombasa County Finance Act 2023/2024 was enacted procedurally. More importantly, it has not been suggested by the applicant that the parent law upon which the impugned charges are levied is tainted on any ground. That being the case, the respondent cannot be faulted for implementing it.
34. In the final analysis, I am not satisfied that the applicant’s application is merited. It is hereby dismissed. I, however, make no orders as to costs. It is so ordered.
Signed, dated and delivered on 30 July 2025
'
“1. An order of certiorari be issued to bring to this court several decisions of the County Government of Mombasa made on diverse dates (as contained in the schedule below) in regard to overcharged parking charges for the purpose of quashing them.
Schedule:
TRUCK AMOUNT (KES) DATE OF THE DECISION
KCD126L 55,500 10.11.2023
KCS258T 109,200 15.5.2023
KCWS37X 73,500 11.09.2023
KDCS19K 43,800 19.12.2023
KDM950V 72,600 14.09.2023
KDN819T 20,100 7.03.2024
KCX471L 139,500 03.02.2023
KCX679B 32,700 25.01.2024
KDC409N 37,800 08.01.2024
2. An order of Prohibition to prohibit the Respondent, the County Government of Mombasa, from clamping or in any way detaining, the Applicants motor vehicles registration KCD 126 L, KCW 537 X, KDC 519 K, KDM 950 V, KDN 819 T, KCX 471 L, KCX 679 B AND KDC 409 N in an attempt to enforce parking fees as listed in the schedule under order 1 above.
3. An order of mandamus be issued compelling County Government of Mombasa to receive a one day parking fees for each of the Applicant''s motor vehicles tagged by the Respondent.
4. An order of mandamus be issued compelling County Government of Mombasa to pay the Applicant a sum of USD 5,600.00, for loss of earnings from KCS 258 T, and Ksh. 40,000.00 paid towards the security of the truck ·
5. Costs of this application be provided for.”
2. The application is based on a statutory statement dated 26 March 2024 and an affidavit sworn on even date by Benson Mwangi Ngumo, verifying the facts relied upon. Ngumo has described himself as the managing director of the applicant.
3. According to Ngumo, the applicant is based in Mombasa and is a transporter of bulk cargo across East Africa. It has a fleet of trucks and has its own private yard at Bonje, Mazeras where the trucks are parked. The applicant does not use public parking yards to park its trucks.
4. However, recently the applicant learnt that a number of its trucks allegedly owes and continue to incur daily parking charges, charged by the respondent.
5. According to Ngumo, the applicant is not guilty of failure to pay parking fees. It is only that it was not notified by the respondent when the respondent raised the parking fees for the first time. He has sworn that it was the obligation of the respondent to notify the applicant immediately they raised the first parking fees.
6. In any event, the fees charged are exorbitant and punitive. The applicant''s legitimate expectation was to be notified of any parking fees due immediately it fell due.
7. At the time of filing the suit, the respondent had clamped and detained one of the applicant''s motor vehicle Registration Number KCS 258 T claiming parking fees at Ksh.109,200.00 which allegedly fell due on 15 May 2023 yet the only payable parking fee was for that particular day charged at Ksh.600.00.
8. The applicant is apprehensive that unless the orders sought are granted, the Respondent shall clamp all the other trucks, an exercise that shall highly prejudice the Applicant resulting into irreparable loss and damage.
9. It would appear the respondent did not file any sort of response to the application but submissions on its behalf were filed.
10. The submissions filed on behalf of the applicant largely rehash the depositions made in the affidavit verifying the facts relied upon. The applicant has added that courts have in several decisions held that, the remedy the judicial review is concerned with reviewing the decision-making process not the merits of the decision.
11. Further, it is submitted that courts have come up with grounds for judicial review which are; abuse of discretion; irrationality; excess of jurisdiction; improper motives; failure to exercise discretion; abuse of the rules of natural justice; fettering of discretion and error of law. In this submission, the applicant has relied on Republic vs Kenya revenue Authority ex parte Yaya Towers Limited 2008, Eklr.
12. On the part of the respondent, it has been submitted that the application is an attempt to evade legally accrued charges and that in any event, the charges could only be challenged by an ordinary suit. It is also urged that the charges cannot be disputed when the primary law upon which they are based has not been challenged.
13. To be precise, parking charges are levied pursuant to the Mombasa County Finance Act which is enacted in every financial year. The applicant has not faulted the law upon which the charges are pegged and, therefore, the charges are based on a valid law. In addition, the allegation that the charges are punitive and exorbitant cannot hold any water since the Applicant is not faulting the law on which the charges are based.
14. The respondent cited Republic v Principal Secretary, Ministry of Internal Security & another Ex-Parte Schon Noorani & another [2018] eKLR for the submission that mandamus is discretionary remedy and, in particular, there are certain conditions that ought to be complied with before the order of mandamus can be granted. These conditions have been stated to be as follows:
“(i) There must be a public legal duty to act;
(ii) The duty must be owed to the Applicants;
(iii)There must be a clear right to the performance of that duty, meaning that:
a. The Applicants have satisfied all conditions precedent; and
b. There must have been:
i. A prior demand for performance;
ii. A reasonable time to comply with the demand, unless there was outright refusal; and
iii. An express refusal, or an implied refusal through unreasonable delay;
(iv) No other adequate remedy is available to the Applicants;
(v) The Order sought must be of some practical value or effect;
(vi) There is no equitable bar to the relief sought;
(vii) On a balance of convenience, mandamus should lie.
15. The first port of call in applications for judicial review is always the grounds for judicial review. Without the grounds on which judicial review reliefs are sought, an application for judicial review would be fatally defective. I say so because, the point of entry for a judicial review court to intervene and check the powers of subordinate courts or tribunals or such other bodies whose powers are subject to judicial review is the grounds upon which the application is made.
16. Order 53 Rule 1(2) of the Civil Procedure Rules which is one of the provisions upon which the applicant’s application is made, states in mandatory terms that the statement accompanying the application must contain, among other things, the grounds upon which the application is made. It reads as follows:
(2) An application for such leave as aforesaid shall be made ex parte to a judge in chambers, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on. (Emphasis added).
17. And Order 53 Rule 4(1) states unambiguously that no grounds should be relied upon except those specified in the statement accompanying the application for leave.
18. The grounds to which reference has been made in these provisions of the law have not been left to speculation. They were enunciated in the English case of Council of Civil Service Unions versus Minister for the Civil Service (1985) A.C. 374,410. In that case, Lord Diplock set out the three heads which he described as “the grounds upon which administrative action is subject to control by judicial review”. These grounds are illegality, irrationality and procedural impropriety. While discussing susceptibility of administrative actions to judicial review and, in the process defining these grounds, the learned judge stated as follows:
“My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review. Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “illegality,” the second “irrationality” and the third “procedural impropriety.” That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of “proportionality” which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.
By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.
By “irrationality” I mean what can by now be succinctly referred to as “Wednesbury unreasonableness” (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court''s exercise of this role, resort I think is today no longer needed to Viscount Radcliffe''s ingenious explanation in Edwards v. Bairstow [1956] A.C. 14 of irrationality as a ground for a court''s reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. “Irrationality” by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review.
I have described the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all.”
19. These grounds of illegality, irrationality and procedural impropriety are ordinarily regarded as the traditional grounds for judicial review. The court will intervene and grant the remedy for judicial review if any of them is proved to exist. But as Lord Diplock suggested, the list is by no means exhaustive. The learned judge hastened to say that further development of this area of law may yield further grounds on a case by case basis. It is in this spirit, the learned judge suggested, that the principle of proportionality as a further ground for judicial review has been developed.
20. No doubt, the applicant is alive to the need to set out the grounds for judicial review because in submissions filed on its behalf, it has been urged that:
“The courts have in several decisions held that, the remedy the judicial review is concerned with is reviewing the decision-making process not the merits of the decision. The courts have also come up with grounds for judicial review which are; abuse of discretion; irrationality; Excess of jurisdiction; improper motives; failure to exercise discretion; abuse of the rules of natural justice; fettering of discretion and error of law. Such was the holding in Republic vs Kenya revenue Authority ex-parte Yaya Towers Limited 2008 Eklr”.
21. It behoved the applicant, therefore, to set out clearly the grounds of judicial review in the statement.
22. It has been held that since they form the foundation upon which the application for judicial review is based, the grounds for judicial review must be stated in precise, clear and unambiguous terms in the statement accompanying the application for leave.
23. While reiterating the importance of stating grounds for judicial review in concise and precise terms, Michael Fordham in his book, Judicial Review Handbook, at Paragraph 34.1 states as follows:
“The need to identify and express accurately the possible grounds for judicial review is not simply a matter of analytical nicety. It is one of practical necessity. The provisions of the new order require the accurate identification of (a) potentially applicable grounds and (b) the time at which they arose. Given the frequent presence of multiple targets, the elusive nature of certain grounds, their disarming interrelationship, and the understandable fear of missed opportunity, it is easy to see why public lawyers may feel tempted to ‘throw everything’ including grounds which are dangerously close to the inconceivable. This approach is unlikely to endear them to the court.”
24. The ‘new order’ referred to in this passage is Order 53 of the Rules of the Supreme Court of England whose provisions are more or less in pari materia with our own Order 53 of the Civil Procedure Rules, 2010. The point is, however, clear that courts will not entertain applications where grounds have not been identified and accurately stated. Stating the grounds in precise terms is not, as it were, a matter of analytical nicety but it is a practical necessity. It follows that where the grounds are not stated, the application is fatally defective as, strictly speaking, it has no foundation upon which it is built.
25. Although it has been urged in the applicant’s submissions that “the applicant has successfully illustrated and established that the respondent abused discretion by failing to notify the Applicant that it owed parking fees” and that “the Respondent acted in excess of jurisdiction by proceeding to clamp the Applicant vehicle”; and also that “the Respondent abused rules of natural justice by proceeding to clamp and charged penalties and interest without giving the Applicant a chance to be heard” none of these grounds has been set out clearly and unambiguously under the head of grounds in the statement as the grounds upon which the application has been made. These grounds could, of course, be subsumed under any of the traditional grounds of judicial review but the burden was always on the applicant to set them out clearly in the statement.
26. Under the law, the applicant could not purport to submit on the grounds that have not been specified in clear and unambiguous terms in the statement. This is apparent from Order 53 rule 4 (1) of the Civil Procedure Rules which states as follows:
4. Statements and affidavits [Order 53, rule 4]
(1) Copies of the statement accompanying the application for leave shall be served with the notice of motion, and copies of any affidavits accompanying the application for leave shall be supplied on demand and no grounds shall, subject as hereafter in this rule provided, be relied upon or any relief sought at the hearing of the motion except the grounds and relief set out in the said statement. (Emphasis added).
27. The closest the applicant came to stating the ground in the statement is what is pleaded in paragraph 3(o) of the statement where it has been stated that:
“The decision to charge the outrageous parking fees has not been communicated in writing to the Applicant. That decision is capricious, unreasonable, malicious, exorbitant and oppressive.”
28. This sounds like the ground of illegality but as I have noted, it is not for the court to speculate which of the grounds of judicial review the applicant is relying upon. The rest of the “grounds” in the statement are nothing more than the depositions made in the affidavit verifying the fact relied upon.
29. But even if the applicant is given the benefit of doubt and the court proceeds on the assumption that the application is based on the ground of illegality, I am not satisfied that this particular ground has been demonstrated to exist.
30. As earlier noted, this ground was defined in Council of Civil Service Unions versus Minister for the Civil Service to mean that the decision-maker does not understand correctly the law regulating his decision-making power and that he has not given effect to it.
31. There is no proof that the respondent does not understand the law regulating its power to levy the rates for parking of motor vehicles within its jurisdiction or that it has not given effect to the law.
32. As I understand the applicant, it is not aware of the law upon which the parking charges are based and its qualm with the respondent is that the respondent did not notify it either in good time or at all of the hike in the parking charges.
33. I do not find this argument to carry much weight because it is assumed that the law, which I understand to be Mombasa County Finance Act 2023/2024 was enacted procedurally. More importantly, it has not been suggested by the applicant that the parent law upon which the impugned charges are levied is tainted on any ground. That being the case, the respondent cannot be faulted for implementing it.
34. In the final analysis, I am not satisfied that the applicant’s application is merited. It is hereby dismissed. I, however, make no orders as to costs. It is so ordered.
Signed, dated and delivered on 30 July 2025
'