Kamau v County Government of Tana-River & another (Civil Suit 11 of 2019) [2020] KEMC 15 (KLR)
The bottom line
#A Kenyan court ruled that Tana River County unlawfully clamped a truck over an offloading fee, since county laws require prosecution—not clamping—to enforce unpaid cess.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the defendants were justified to demand Kshs. 3,000/= from the plaintiff
- 2.Whether the consequence of non-payment - clamping or immobilising the vehicle - was lawful; in a nutshell, whether the defendants' action was lawful
Key legal issues
#Whether the demand for Kshs. 3,000/= and the clamping of the vehicle were lawful
While cess of Kshs. 3,000/= was payable under section 6 and the 4th Schedule of the Tana River County Finance Act, the receipt issued was for parking and offloading fees, which the Act does not provide for; the prescribed consequence of non-payment is prosecution, not clamping. The defendants' action was therefore unlawful.
The court accepted that a transporter of groceries was liable to cess under the Finance Act. However, the receipt issued for the hired vehicle in identical circumstances described the payment as parking and offloading fees, and no provision of the Act establishes such a fee. Further, the Act's enforcement mechanism is prosecution, not immobilisation of vehicles, so the clamping lacked legal basis.
Whether the plaintiff proved special damages for loss of use of his vehicle
Only the hire costs of Kshs. 80,000/= proved by receipts (PEXH NOS 4A-4D) were awarded; the claim of Kshs. 20,000/= per day for 32 days failed for want of specific proof.
Although the plaintiff proved hiring a replacement vehicle at Kshs. 20,000/= per trip on four occasions, there was no specific evidence such as supply orders of the earnings lost from supplying goods to NYS Bura daily. Loss of user is special damages requiring proof to the requisite degree of certainty, so the unquantified claim was dismissed.
Legal principles established
#- A county may lawfully demand cess provided for under its Finance Act, but enforcement is by prosecution in a court of law, not by clamping a vehicle
- Special damages must be specifically proved; pleadings alone are insufficient
Court orders
#- 1.A permanent order of injunction restraining the defendants from claiming and demanding a purported offloading fee of Kshs. 3,000/= apart from the required parking fees of Kshs. 200/=
- 2.The defendants are restrained from clamping or illegally detaining the plaintiff's motor vehicle KBY 397 G within Hola Town or any other place within Tana-River County
- 3.An order directing the defendants jointly and severally to compensate the plaintiff Kshs. 80,000/= being the proved special damages for loss of use
- 4.Costs of the case and interest on the sum awarded at court rates
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the magistrates' court over the plaint dated 09.08.2019
Relief refused
#General/compensatory claim for loss of use of the motor vehicle at Kshs. 20,000/= per day (Kshs. 480,000/= claimed for 32 days, including supplies to NYS Bura)
Special damages must be specifically proved; no specific evidence such as supply orders of lost earnings was adduced
Costs
Costs of this case awarded to the plaintiff, with interest on the decretal sum at court rates
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I do therefore find no basis for the defendants’ action against the plaintifi. Moreover, the course of action as provided for in the Act is prosecution in a court of law and not clamping of a vehicle.
This being special damages, pleading was not enough.
A permanent order of injunction is hereby issued restraining the defendants by themselves, their agents, servants, representatives, assigns or any other person claiming under them from claiming and demanding an alleged and purported ofioading fee of Kshs. 3,000/= apart from the required parking fees of Kshs. 200/=
An order is hereby issued directing and compelling the Defendants to jointly and severally compensate the plaintifi for loss of use of the motor vehicle at Kshs. 80,000/= being the proved special damages loss of use.
Issues in the judgment
#Case conference date appears as 24.08.2010, an apparent typographical error given the suit was filed in 2019 and the hearing was 26.08.2020
The claim as pleaded is Kshs. 560,000/= but the particularised loss of use figure is Kshs. 480,000/= (Kshs. 20,000 x 32 days would exceed this), an internal inconsistency in the plaint as reproduced
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamau v County Government of Tana-River & another (Civil Suit 11 of 2019) [2020] KEMC 15 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/15/eng@2020-09-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.