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Court of AppealDismissedCivil Appeal No. 42 of 2014· [2014] KECA 95 (KLR)

Nairobi Metropolitan Psv Saccos Union Limited & 25 Others v County of Nairobi Government & 3 Others

Court of Appeal
3 October 2014
7,357 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that county governments can set parking fees, and overturned challenges that public participation was inadequate.

What this practically means

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Executive summary

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The twenty-six appellants, licensed PSV operators, challenged the constitutionality of Paragraph 6.1 of the Nairobi City County Finance Act, 2013, which raised daily parking charges from Ksh. 140 to Ksh. 300. Lenaola, J. dismissed their constitutional petition in its entirety, and the appellants appealed on 17 grounds, argued thematically as two broad issues: whether the High Court erred in refusing to declare Paragraph 6.1 unconstitutional, and whether the public participation preceding the Act's enactment was adequate. The Court of Appeal, in a single judgment of the court, affirmed the decision below. It held that the regulation of traffic and parking, including the levying of parking fees, is a function devolved to County Governments under Section 5(c) of the Fourth Schedule read with Articles 185 and 209(4) of the Constitution. It found no conflict between the Finance Act and Section 72(B) of the Traffic Act, observing that the Traffic Act itself permitted local authorities to prescribe other methods of charging, and that even if a conflict existed, county legislation would prevail on a devolved function. On public participation, the court accepted that the notices may not have been sufficient given the social conditions of ordinary Kenyans, but found that stakeholder representatives, including PSV operators and the Motorists Association, attended and gave views, and that no evidence was adduced that the notice was inadequate; an Act could not be annulled on mere submissions of counsel. The appeal was dismissed with no order as to costs, each party bearing its own costs as the suit was public interest litigation. The judgment binds lower courts on the county mandate over parking and the reasonableness standard for legislative public participation.

Key legal issues

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01

Whether parking fees are a county or national government function

Holding

Regulation of traffic and parking, and the levying of parking fees, is vested in the County Governments under the Fourth Schedule and Article 185; the Finance Act was valid county legislation.

Reasoning

The court read Article 185 (vesting county legislative authority in County Assemblies) together with Section 5(c) of the Fourth Schedule, which designates traffic and parking as county functions. Article 209(4) permits national and county governments to impose charges for services. Had the drafters intended parking to be national, they would have said so expressly; instead the Constitution clearly vests traffic and parking in counties.

p. 11
02

Whether Paragraph 6.1 of the Finance Act conflicts with Section 72(B) of the Traffic Act

Holding

There is no conflict; in any event county legislation would prevail on this function, since the Traffic Act itself authorised local authorities to prescribe other methods of charging by by-laws.

Reasoning

Section 72(B) of the Traffic Act requires charges to be paid to local authorities and permits charges to be calculated 'in such other manner as the local authority may by by-laws prescribe'. County legislation has replaced local authority by-laws. The court declined to enter the contest over which legislation is superior, noting the constitutional scheme gives counties the mandate and Transitional and Consequential Provisions (Section 7 of the Sixth Schedule) require old laws to be construed to conform to the Constitution.

p. 11
03

Whether the public participation preceding enactment of the Finance Act was adequate

Holding

The participation was adequate. The Constitution and statutes are silent on the notice period; reasonable notice suffices, and stakeholders including PSV operators' representatives attended and gave views.

Reasoning

Although the court acknowledged the notices may not have been sufficient given that ordinary Kenyans may not access websites or print media, the affidavit of Lillian Ndegwa showed that representatives of Motorist Associations of Kenya, Kenya Bus Operators and Double M Operators attended the forums and gave views. None of those who attended complained of short notice, and the appellants adduced no evidence that the notice was insufficient; a Finance Act cannot be annulled on mere submissions of counsel.

p. 12
04

Principles governing the determination of constitutionality of statutes

Holding

In examining constitutionality a presumption favours the enactment; no one constitutional provision is to be read in isolation, and a statute is tested by both purpose and effect of its implementation.

Reasoning

The court drew on South Dakota v North Carolina for the rule that all provisions bearing on a subject are to be brought into view, on Hambarda Wakhana v Union of India for the presumption of constitutionality, and on Olum v Attorney General of Uganda for the proposition that purpose and effect must both be examined. Chapter 17 of the Constitution guides interpretation towards purpose, values, rule of law and good governance.

p. 10

Legal principles established

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  • The mandate to regulate traffic and parking, including parking fees, is vested in County Governments under Section 5(c) of the Fourth Schedule read with Article 185 of the Constitution
  • The Traffic Act must be construed with the devolved County Government structure in mind and cannot supersede County legislation on issues reserved for County Government
  • On public participation in legislation, the law-maker need not give a personal hearing to every individual affected; what is required is reasonable notice and that the views of those who attend are taken into consideration
  • A court considering an apparent conflict between national and county legislation shall prefer a reasonable interpretation that avoids a conflict

Court orders

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  1. 1.Appeal dismissed in its entirety
  2. 2.Each party to bear its own costs, the suit being public interest litigation
On appeal from
High Court of Kenya at Nairobi, Constitutional Division
Constitutional Petition No. 486 of 2013
Jurisdiction invoked
First appellate jurisdiction under Article 164 of the Constitution of Kenya 2010 (appeal against the entire judgment and order of the High Court in a constitutional petition)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nairobi Metropolitan Psv Saccos Union Limited & 25 Others v County of Nairobi Government & 3 Others", Case Analysis (2014). Civil Appeal No. 42 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/95/eng@2014-10-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.