Car Importers Association of Kenya v County Government of Mombasa
The bottom line
#Mombasa's county government cannot force car dealers out of the CBD without first consulting them and following fair administrative procedures.
What this practically means
#Executive summary
#Key legal issues
#Sufficiency of pleading in a constitutional petition
The Petition met the Anarita Karimi Njeru threshold of reasonable precision
The court applied the Anarita Karimi Njeru standard as restated in Mumo Matemu, requiring constitutional violations to be pleaded with reasonable precision, and found the Petitioner had dutifully complied and fully met the threshold in pleading the violations and reliefs sought.
Public participation and fair administrative action in the relocation directives
The impugned directives required public participation and none was undertaken; they were constitutionally infirm and violated Article 47 and the Fair Administrative Actions Act
The court held the directives were administrative actions affecting the legal rights of the Petitioner, customers and stakeholders, and had to satisfy lawfulness, reasonableness and procedural fairness. The Respondent gave no notice, no opportunity to be heard and no reasons; by its own admission it did not engage the Petitioner. The withdrawal of the notice did not cure the infringement already felt.
Constitutional standard for limiting economic liberty
The State may regulate economic activity in the public interest but limitations must be reasonable, non-discriminatory, non-oppressive and procedurally fair
Drawing on Lochner, Holmes' dissent and West Coast Hotel v Parrish, the court held the Kenyan Constitution envisages a directive role for the State permitting regulation of freedom of contract for public interest objectives, but any limitation must meet a four-part test including Article 24 justification, rational basis, procedural public participation and substantive scrutiny of effects on rights.
Burden of proof in constitutional petitions
The Petitioner discharged its evidentiary burden by affidavit evidence of the manner of infringement
Relying on sections 107 and 109 of the Evidence Act and the Supreme Court's decision in Communications Commission of Kenya v Royal Media Services, the court required a link between the aggrieved party, the constitutional provisions alleged to be contravened and the manifestation of contravention, and found the supporting affidavit demonstrated the deleterious effects of the directives on businesses and livelihoods.
Legal principles established
#- A decision removing all options from an economic actor or targeted group and channelling their economic activities in a particular direction must be arrived at after due consultation and meaningful public participation and fair administrative process
- Limitations on economic liberty must be reasonable, non-discriminatory, non-oppressive and procedurally imposed to pass constitutional muster
- A petitioner may act preemptively to prevent threatened violations of rights without waiting for the violation to occur
Court orders
#- 1.Judgment entered in favour of the Petitioners to the extent stated in the orders
- 2.An order that the Petitioner's members have a right to carry out their businesses of selling imported used motor vehicles in their car showrooms in the Central Business District of Mombasa Town and that the Respondent has no right to force them to relocate to Jomvu area on Plot No. MN/V/290
- 3.Prayer 2 of the Petition declared overtaken by events, the Respondent having withdrawn its directives on relocation
- 4.A declaration that the Petitioner's members have a right to be involved in the decision-making process leading to their intended relocation from the Mombasa Central Business District to Jomvu area
- 5.The orders do not debar the Respondent from further engaging the Petitioner so long as it is undertaken within the confines of the Constitution of Kenya, 2010
- 6.Each party to bear own costs of the Petition
- Jurisdiction invoked
- Articles 22, 23 and 165 of the Constitution; jurisdiction founded on the land-use subject matter (Plot No. MN/V/290, Jomvu) vesting the Environment and Land Court with greater jurisdiction than the High Court
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Shah v County Government of Trans Nzoia & another (Environment & Land Case 11 of 2019) [2025] KEELC 1028 (KLR)[2025] KEELC 1028 (KLR)5 Mar 2025followed
Cite this brief
#Cite this brief
Caselaw, "Car Importers Association of Kenya v County Government of Mombasa", Case Analysis (2023). Constitutional Petition E002 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20653/eng@2023-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.