Tuesday, May 13, 2008
Matatu Operators Suffer Blow As Ruling is Reversed.
LAW REPORT: Matatu operators suffer blow as ruling is reversed
Story by MONICA ACHODE
Publication Date: 5/12/2008
Republic vs Permanent Secretary, ministry of Local Government & Four others ex-parte, Immaculate Transporters Ltd & 17 others  Eklr (www.kenyalaw.org)
High Court At Nairobi
J. G. Nyamu (J)
Matatus at the new Muthurwa Bus terminus. Photo/FILE
Mr Justice John Nyamu on May 5 gave a ruling setting aside an earlier order given on March 31, 2008, by a fellow judge, which had allowed matatu operators to file a substantive application for several reliefs.
The High Court, in the earlier application, had also ordered that the leave granted was to operate as a stay of the decision reached by respondents who were named as the Permanent Secretary in the ministry of Local Government, the Transport Licensing Board, the Attorney-General, the City Council and the Commissioner of Police.
Matatu operators Bernard Goko, Elizaphan Wahome, Duncan Ngugi, Michael Kinyua and Joe Macharia had applied to have their matter certified as urgent and for it to be heard instantly. They also sought leave to apply for a judicial review order to quash the decision of the respondents barring several motor vehicles belonging to the applicant from entering Nairobi central business district and from using Landhies Road. Among the cars barred were motor vehicle registration numbers KAL 560 C, KBA 009 C, KAQ 910 U, KAT 860 U and KAN 514 H.
The applicants further wanted to bar the respondents from continuing to block the said motor vehicles from entering the city centre or using certain routes.
At the same time, the respondents brought an application to set aside the order issued on March 31, 2008.
The respondents put forward several grounds among them that their decision ordering matatus to drop and pick up passengers at Muthurwa market was lawful having been taken through all the statutory requirements prior to being effected.
It was their contention that the decision had been reached through a council resolution. This had been followed by the ministerial approval which was gazetted on March 20, 2008.
The City of Nairobi (Omnibus Stations) Amendment By-Laws 2008 at section 23 clearly designated special parking spaces for all vehicles plying route number 58. This amendment was operationalising earlier City Council of Nairobi (Matatu Termini) By-Laws 2007 section 9 which provided that the council could from time to time declare any area within the city to be a matatu terminus, and that the terminus declared in accordance with these by-laws would indicate the route number of the matatus to use it.
Matatu owners through their counsel responded by submitting that section 72A(j) dealt with parking, whereas the issue before the court was where matatus plying route 58 were to end their itinerary.
They also contended that under the Nairobi (Matatu Termini) By-Laws 2007, no parking was allowed and that the vehicles were to be on the move at all times. It was their stand that the Traffic Act regulated parking.
The matatu owners felt it was in the greater public interest to have the stay order continue because the traffic situation would be chaotic if the matatus were not allowed back into the city centre.
It was also their contention that the orders were in the interest of the majority instead of favouring a few.
They claimed the three operators who had been allowed to enter city centre had been favour and this constituted discrimination of the other operators.
Related to this had been the issue of licences issued to the applicants for a period of one year by the Transport Licensing Board on the basis of known routes, a result of which was that their legitimate expectation to so operate throughout the whole year had been thwarted.
Further, the applicant felt that sufficient notice had not been provided, contrary to the rules of natural justice.
On the issue of notice, the High Court felt that in retrospect, it was to be viewed from the standpoint of the due process provisions relating to the passing and making of laws as set out under section 201 of the Local Government Act.
It was the court’s view that attention of the previous court had not been drawn to this section and was instead informed that the respondents had made an oral decision.
On this, the court held the failure to disclose the existence of the by-laws as the real subject matter constituted a serious non-disclosure on the part of the matatu owners which would have affected the grant of orders they had sought.
Mr Justice Nyamu also found on the claim of legitimate expectation that the court had not been adequately briefed on how this had been resolved.
Further, he held there had been no decision under attack at the time of the grant of the order for leave and stay. Instead what had formed the so called decision had been the By-Laws L.N 37/ 08, which were in turn not brought to the attention of the court then.
Mr Justice Nyamu was of the opinion that, had the attention of the court hearing the matter at the time been drawn to the by-laws, the chances of the applicants succeeding on obtaining those orders would have been apparently non-existent.
The court referred to various decided cases in ruling on the issue of material non-disclosure. The cases of Kenya Bus Service versus Republic and Justus Nyangaya versus Republic reiterated the courts stand that leave was only provisional and that it could be set aside for material non-disclosure or if wrongly entered.
At the leave stage, the court grants or refuses leave by answering the question whether or not an applicant is likely to succeed at the second stage.
It was his opinion that the leave and stay would not have been granted on the same terms had the by-laws been exhibited.
Concerning the issue of public interest, Mr Justice Nyamu ruled that on a tentative basis, there could not be a greater public interest concerning traffic matters than achieving the smooth flow of traffic, order and discipline on the roads.
It was for these reasons that the High Court set aside that particular part of the order given on March 31, 2008, by the vacation Judge directing that leave operate as stay.
The writer is an advocate of the high court of Kenya