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Case Brief · caselaw.co.ke
MagistratePartially AllowedNot stated in the judgment

Kamau v County Government of Tana-River & another (Civil Suit 11 of 2019) [2020] KEMC 15 (KLR)

Principal Magistrate's Court
15 September 2020
2,067 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiff, a Hola businessman, sued the County Government of Tana-River and its enforcement officer after his Mitsubishi Canter (KBY 397 G) was clamped on 17.07.2019 when he refused to pay Kshs. 3,000/= demanded as offloading fees, insisting on the usual Kshs. 200/= parking fee. He sought an order to unclamp the vehicle, a permanent injunction against the demand of the Kshs. 3,000/= fee and against clamping, compensation for loss of use at Kshs. 20,000/= per day plus hire costs, costs and interest. The defendants pleaded that the Kshs. 3,000/= was cess/market fees payable under section 6 read with the 4th Schedule of the Tana River County Finance Act, and that clamping was justified by the plaintiff's refusal to pay. The defendants failed to participate in the hearing and the plaintiff testified as sole witness. The court held that although cess was indeed payable under the Finance Act, the receipt issued was for parking and offloading fees, which the Act does not provide for; moreover, the Act's prescribed remedy for non-payment is prosecution, not clamping. The plaintiff therefore proved his case. A permanent injunction issued against the demand of the Kshs. 3,000/= fee and against clamping or detaining the vehicle. On damages, only the Kshs. 80,000/= hire costs proved by receipts were awarded; the claim for daily loss of use of Kshs. 480,000/= failed as unproved special damages. Costs and interest at court rates were awarded to the plaintiff. Judgment delivered at Hola on 15 September 2020.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the defendants were justified to demand Kshs. 3,000/= from the plaintiff
  2. 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

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01

Whether the demand for Kshs. 3,000/= and the clamping of the vehicle were lawful

Holding

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.

Reasoning

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.

p. 4
02

Whether the plaintiff proved special damages for loss of use of his vehicle

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 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. 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. 4.Costs of the case and interest on the sum awarded at court rates

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction of the magistrates' court over the plaint dated 09.08.2019

Relief refused

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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

p. 4

Costs

Costs of this case awarded to the plaintiff, with interest on the decretal sum at court rates

Quotable passages

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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.
p. 4Unlawfulness of clamping as enforcement of cess
This being special damages, pleading was not enough.
p. 4Standard of proof for special damages
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/=
p. 4Final orders - permanent injunction
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.
p. 4Final orders - damages

Issues in the judgment

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minor

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

minor

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

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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, "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.