Migori County Government & another v Migori County Transport Sacco (Civil Appeal 110 of 2017) [2021] KECA 7 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed county governments must consult the public before closing bus parks, and upheld a Kshs 2 million award against Migori County.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent proved its constitutional petition to the required standard
Yes. The petition satisfied the Anarita Karimi Njeru threshold and the appellants were proved to have breached constitutional and statutory duties owed to the respondent.
The court applied the Anarita Karimi Njeru and Mumo Matemu threshold, holding the petition sufficiently identified the provisions violated and the manner of violation. The county government had a constitutional and statutory duty over county public transport under Article 186 and the Fourth Schedule, including issuing the certificate of picking and dropping passengers required by the NTSA regime. Its inaction on reminders, facilitation of a rival Sacco, and unilateral closure of Posta Bus Park without public participation constituted violations proved on a balance of probabilities.
Whether the closure of Posta Bus Park without public participation was unconstitutional
Yes. The decision was made without consultation or public participation, breaching the respondent's constitutional rights.
Relying on Article 10 and Article 232(1) values and on Outdoor Advertising, Omtata Okoiti, Poverty Alleviation Network and Doctors for Life, the court held that those likely to be affected by an administrative decision must be afforded input. Public interest cannot defend a breach of law; the rule of law requires an opportunity to be heard before such decisions. The absence of participation in the closure and relocation decision rendered the trial court's finding unimpeachable.
Whether the appellants discriminated against the respondent contrary to Article 27
Yes. Treating the respondent unequally compared to its rival Sacco, notably in issuing licensing documentation, constituted discrimination and unequal treatment before the law.
The court distinguished mere differentiation from proscribed discrimination, adopting FIDA Kenya: differentiation is impermissible where unreasonable, arbitrary, or without reasonable basis. Here the appellants facilitated the rival Sacco with documentation they denied the respondent despite reminders, and assigned the closed bus park to the rival. That treating of equals unequally was discriminatory, violating Article 27's guarantees of equal protection and benefit of the law.
Whether the award of Kshs 2,000,000 in constitutional damages was justified
Yes. The compensation prayer was properly before the trial court and the award was a proper exercise of discretion.
The court held the High Court possesses power under Articles 22 and 258 and its inherent jurisdiction to fashion appropriate remedies even where relief was not precisely pleaded. Drawing on Gitobu Imanyara, Ramanoop and Total Kenya, it affirmed that constitutional damages serve to vindicate rights, not merely compensate. Applying Bashir Ahmed Butt, the appellate court would not disturb a discretionary award absent an entirely erroneous estimate; the Kshs 2,000,000 award met neither test and was left undisturbed.
Legal principles established
#- County governments bear the constitutional and statutory mandate over county public transport, including regulation of traffic, parking, and designated passenger picking and dropping points, and must exercise that mandate in accordance with constitutional norms including public participation.
- A closure or relocation decision affecting transport operators must be preceded by public participation and consultation; public interest cannot justify breach of the Constitution or statute.
- Differential treatment amounts to unconstitutional discrimination where it treats equals unequally without reasonable basis, including in the facilitation of licensing documentation to competing operators.
- An appellate court will not interfere with a discretionary damages award absent demonstration that it is inordinately high or low or that the judge proceeded on wrong principles or misapprehended the evidence.
- A constitutional petition must identify with reasonable precision the constitutional provisions alleged to have been violated and the manner of violation; merely citing provisions is insufficient.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondent
- On appeal from
- High Court of Kenya at Migori
- Constitutional Petition No. 3 of 2016
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Act over the High Court's constitutional petition judgment (appellate jurisdiction, not Supreme Court certification)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Migori County Government & another v Migori County Transport Sacco (Civil Appeal 110 of 2017) [2021] KECA 7 (KLR)", Case Analysis (2021). Civil Appeal (from Constitutional Petition No. 3 of 2016, High Court of Kenya at Migori). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/7/eng@2021-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.