Michael Makubo William v National Transport Safety Authority (ntsa) & 5 others

JUDGMENT Introduction 1. This Judgment concerns a constitutional Petition instituted before this Court by one Michael Makubo William (hereinafter “the Petitioner”), a Kenyan citizen resident and working within Nairobi County. The Petition is brought not only in his personal interest, but also in the public interest on behalf of users of public service vehicles (hereinafter “PSVs”) and operators within the PSV sector across the Republic of Kenya. At its core, the Petition challenges a set of regulatory and administrative measures which, according to the Petitioner, have the effect of proscribing graffiti, artistic adornments, tinted windows, and other forms of creative expression on PSVs. The Petitioner contends that the impugned measures infringe a range of constitutionally protected rights and freedoms, including the freedom of artistic creativity under Article 33(1)(b), cultural rights under Article 11, the right to equality and freedom from discrimination under Article 27, the right to property under Article 40, and the right to fair administrative action under Article 47 of the Constitution, among others. 2. The Petition constitutes a direct constitutional challenge to the legal and regulatory framework governing the operation of PSVs in Kenya. The principal target of this challenge is the National Transport and Safety Authority (Operation of Public Service Vehicles) Regulations, 2014, promulgated vide Legal Notice No. 23 of 2014 and subsequently amended by Legal Notice No. 179 of 2014 (hereinafter collectively referred to as “the impugned Regulations”). The Petitioner further impugns the legality and constitutionality of a notice issued by the National Transport and Safety Authority (hereinafter “NTSA” or “the 1st Respondent”) dated 14th May 2025, reference NTSA/13/22/PTM/CORR/VOL 1, by which PSV operators were directed, with immediate effect, to remove all graffiti, innovative decorations, and other artistic embellishments from their vehicles, failing which sanctions would ensue, including impoundment, suspension or revocation of licences, and denial of access to the NTSA operational portal. 3. The Respondents have opposed the Petition and have urged this Court to uphold both the impugned Regulations and the impugned administrative notice. Their case, in summary, is that the Regulations were lawfully enacted in accordance with the Constitution and the Statutory Instruments Act, following due public participation and parliamentary oversight; that the measures complained of constitute reasonable and justifiable limitations of rights within the meaning of Article 24 of the Constitution, grounded in the legitimate objective of ensuring road safety, that the notice dated 14th May 2025 did not introduce any new legal obligations but merely reiterated and enforced pre-existing regulatory requirements and that, in any event, the Petition is incompetent by reason of inordinate and unexplained delay, having been brought more than a decade after the enactment of the impugned Regulations. 4. In resolving the issues arising for determination, this Court has had the benefit of extensive pleadings and detailed submissions by the parties. The Court has duly and carefully considered the entirety of the material placed before it Background 5. The factual matrix giving rise to the present dispute is, in its broad outline, not contested. What is in controversy, however, are the legal consequences to be ascribed to those facts. The National Transport and Safety Authority (hereinafter “NTSA”) is a statutory body established under the National Transport and Safety Authority Act, No. 33 of 2012 (hereinafter “the NTSA Act”). Its https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6826/eng@2026-04-29 2

page 2 of 22

mandate encompasses, inter alia, the planning, regulation, and management of the road transport system in Kenya, the implementation of policies relating to road transport and safety, the licensing of public service vehicle (PSV) operators, and the enforcement of compliance with prescribed safety and regulatory standards. 6. In exercise of the powers conferred by section 54 of the NTSA Act, the Cabinet Secretary for Transport and Infrastructure promulgated the National Transport and Safety Authority (Operation of Public Service Vehicles) Regulations, 2014, vide Legal Notice No. 23 of 2014. The said Regulations established a comprehensive regulatory regime governing the licensing, operation, safety standards, and general conduct of PSVs. Of particular relevance to the present dispute are provisions requiring, inter alia, the display of the operator’s name, the marking of vehicles with a continuous yellow line for identification, the prohibition of any decorations that obscure number plates or safety features, and restrictions relating to tinted windows and reflective materials. The Regulations further introduced the concept of “innovative decorations,” defined to include any pictures, words, symbols, or lighting painted, sprayed, drawn, or otherwise affixed to the body of a PSV. 7. It is common ground that, following public concern as to the potential impact of the Regulations on artistic expression within the PSV sector, the then President, H.E. Uhuru Kenyatta, made a public pronouncement in 2014 indicating that graffiti on PSVs ought to be permitted. That position was subsequently given regulatory expression through Legal Notice No. 179 of 2014, which amended the principal Regulations. The amending instrument retained the concept of “innovative decorations” and expressly permitted such decorations, subject to specified conditions, including that they be nonoffensive, that they not be applied to windows, windscreens, lights, indicators, or chevrons, that they possess no reflective properties; and that they not be accompanied by additional exterior or interior lighting beyond that installed by the manufacturer. 8. The record further shows that for a period of approximately a decade following the promulgation of the Regulations, no legal challenge was mounted against their validity. During this period, PSV operators continued to conduct their operations, with many investing in elaborate graffiti and artistic embellishments. The Petitioner places considerable reliance on this state of affairs, as well as on the 2014 presidential pronouncement, to contend that the industry thereby acquired a legitimate expectation that such artistic expressions would be tolerated, and that any subsequent restrictive enforcement would be inconsistent with that expectation. 9. On 14th May 2025, the NTSA issued a notice addressed to all PSV operators, drawing attention to their obligations under Regulation 7 of the impugned Regulations, and in particular paragraphs (j), (l), (m), (n), (o), and (p) thereof. These provisions require, among other things, that the name of the Sacco or company be prominently displayed, that innovative decorations be non-offensive, that no such decorations be applied to windows, windscreens, lights, indicators, or chevrons; that windows and windscreens remain free from tinting or obstruction, that innovative decorations possess no reflective properties and that no additional exterior or interior lighting be affixed beyond that installed by the manufacturer. 10. The notice indicated that the NTSA had observed widespread non-compliance with the aforesaid provisions, particularly within the commuter PSV segment. It noted that numerous vehicles had been modified through graffiti and other artistic enhancements in a manner that obscured critical identifying features, including the Sacco or company name, the designated route, and the mandatory continuous yellow line. Consequently, the NTSA directed all licensed PSV operators to undertake an immediate audit of their fleets to ensure compliance. It further required that the Sacco or company name be boldly displayed, that branding be uniform across fleets, that franchise or partner branding not overshadow that of the licensed operator, and that all innovative decorations not forming part of the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6826/eng@2026-04-29 3

page 3 of 22

approved brand design be removed forthwith. The notice warned that failure to comply would attract regulatory sanctions, including impoundment of vehicles, suspension or revocation of operating licences, and withdrawal of access to the NTSA operational portal. 11. The Petitioner’s case is that the said notice took immediate effect, afforded no reasonable period for compliance, and precipitated enforcement actions including the grounding of PSV fleets, harassment of operators, impoundment of vehicles, and the removal of number plates. He further contends that the notice was issued without prior consultation or public participation and, in substance, amounted to a blanket prohibition of graffiti and artistic expression on PSVs, contrary to the Constitution. 12. The Respondents, for their part, deny that the notice imposed any blanket prohibition. Their position is that the notice merely reiterated existing statutory obligations that have been in force since 2014 and signalled an intention to enforce compliance therewith. They further contend that any enforcement measures undertaken pursuant to the notice, including the removal of number plates, are sanctioned under the Traffic Act, Cap. 403, in particular sections 106(4) and 106(4A), which empower licensing and enforcement officers to prohibit the use of non-compliant or unroadworthy vehicles and to remove identification plates in appropriate circumstances. 13. Finally, the Respondents point to the fact that the NTSA has initiated a review of the impugned Regulations, and that a public notice dated 22nd October 2024 was issued inviting stakeholders and members of the public to submit memoranda and comments. On that basis, they contend that the Petitioner ought to have pursued, and exhausted, the ongoing consultative process prior to invoking the jurisdiction of this Court, and that the present proceedings are, on that account, premature and an abuse of the process of the Court. The Petitioner’s Case 14. The Petitioner’s case is set out in the Amended Petition dated 16th June 2025, the Supporting Affidavit sworn contemporaneously therewith, the Further Affidavit sworn on 16th July 2025, and a Supplementary Further Affidavit sworn on 18th December 2025. The Petitioner also filed written submissions dated 25th July 2025, together with further submissions in rejoinder to those of the Respondents. The Court has considered the totality of these pleadings and submissions in distilling the Petitioner’s case. 15. The crux of the Petitioner’s challenge is that the process culminating in the enactment of the impugned Regulations was constitutionally infirm for want of substantive and meaningful public participation. He invokes Articles 10, 118, and 232 of the Constitution, which entrench public participation as a foundational principle in legislative and policy formulation. It is his contention that the Respondents have failed to place before the Court any credible evidence demonstrating that such participation was undertaken prior to the promulgation of the Regulations in 2014. In particular, he points to the absence of documentary material such as minutes of consultative forums, attendance registers, public notices (including in Kiswahili), or any indication that the public was adequately sensitized on the contents of the proposed Regulations. 16. The Petitioner further contends that the subsequent notice issued on 22nd October 2024, inviting public views on a proposed review of the Regulations, cannot retrospectively cure an alleged constitutional defect in the original enactment. In support of this proposition, he places reliance on British American Tobacco Kenya PLC v Cabinet Secretary for Health [2019] KESC 15 (KLR), for the principle that public participation must be real, purposive, and meaningful, and not a mere formality. 17. The Petitioner also assails the impugned Regulations on the ground of vagueness and uncertainty. He argues that Regulation 7(e), which requires that music played in PSVs should not exceed “the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6826/eng@2026-04-29 4

page 4 of 22

prescribed limits,” fails to define those limits, thereby leaving their determination to the subjective discretion of enforcement officers. Likewise, he challenges Regulation 7(l), which prohibits “offensive” innovative decorations, on the basis that the term “offensive” is undefined and inherently subjective. According to the Petitioner, such indeterminacy invites arbitrary enforcement, fosters discriminatory application, and creates fertile ground for abuse of power. He submits that legislation which creates obligations or offences in vague and imprecise terms offends the principle of legality and is inconsistent with the national values and principles of governance, particularly transparency and accountability, enshrined in Article 10(2)(c) of the Constitution. 18. It is further the Petitioner’s case that the limitations imposed by Regulations 7(l), (m), (n), (o), and (p) unjustifiably infringe upon the freedom of artistic creativity, cultural expression, and the right to property, contrary to Article 24 of the Constitution. He contends that the Respondents have not discharged the burden of demonstrating that the impugned restrictions are reasonable and justifiable in an open and democratic society, noting in particular the absence of empirical data, research, or other cogent evidence linking graffiti, artistic decorations, or tinted windows on PSVs to any discernible risk to road safety. The Petitioner further invokes Article 11 of the Constitution, arguing that the State bears a positive obligation to promote and protect all forms of cultural expression. In this regard, he characterizes the so-called “matatu culture” as a distinctive and constitutionally protected form of urban cultural expression, marked by elaborate graffiti, artistic design, tinted windows, and onboard entertainment systems. He points to instances of official recognition and celebration of this culture, including national and county events, as evidencing a pattern of State endorsement. Against that backdrop, he contends that the impugned measures are inconsistent, irrational, and in violation of the doctrine of legitimate expectation. 19. The Petitioner further challenges the legality of the NTSA notice dated 14th May 2025, contending that it contravenes Article 47 of the Constitution, which guarantees the right to fair administrative action. He asserts that the notice took immediate effect, afforded no reasonable period for compliance, and imposed severe sanctions including impoundment of vehicles and revocation of licences without according affected parties an opportunity to be heard. He additionally contends that the removal of number plates by NTSA officers lacks any lawful basis and amounts to an arbitrary deprivation of property, in violation of Article 40 of the Constitution. 20. In answer to the Respondents’ plea that the Petition is barred by laches and inordinate delay, the Petitioner maintains that constitutional petitions are not subject to strict limitation periods. He relies on Otieno Mak’Onyango v Attorney General & Another [2012] eKLR and Peter Ngari Kagume & Others v Attorney General [2006] eKLR, in which courts entertained claims brought many years after the alleged violations. He further contends that, in any event, the cause of action herein crystallized upon the issuance of the impugned notice in May 2025, and that the alleged violations are of a continuing nature, manifested through ongoing enforcement actions such as arrests, prosecutions, and the removal of number plates. 21. The Petitioner also takes issue with the procedural propriety of the Amended Replying Affidavit filed on behalf of the 1st and 2nd Respondents. Placing reliance on Superior Homes (Kenya) PLC v Water Resources Authority & 9 others [2024] KECA 1102 (KLR) and Stephen Boro Githua v Family Finance Building Society & 3 Others [2015] eKLR, it is his submission that an affidavit is not a pleading amenable to amendment, and that any purported amendment thereof renders the affidavit incurably defective. On that basis, he urges the Court to strike out the said affidavit from the record. 22. On the basis of the foregoing, the Petitioner seeks a range of reliefs from this Court. These include declarations that the impugned Regulations are unconstitutional; a declaration that the NTSA notice dated 14th May 2025 is unlawful, null, and void; an order of certiorari to quash the said notice; a https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6826/eng@2026-04-29 5

page 5 of 22

permanent injunction restraining its implementation; orders of mandamus compelling the release of impounded vehicles and the restoration of removed number plates; and compensatory relief in favour of affected vehicle owners. The 1St And 2Nd Respondents’ Case 23. The 1st and 2nd Respondents are the National Transport and Safety Authority (NTSA) and its DirectorGeneral. Their case is articulated through the Replying Affidavit sworn by Dr. Andrew Kiplagat, the Director of Road Safety at the NTSA, together with a Further Replying Affidavit, an Amended Replying Affidavit, and written submissions filed on their behalf. The Court has considered these pleadings in their entirety. 24. As a preliminary point, the 1st and 2nd Respondents take the position that the Petition is incompetent and fatally defective by reason of laches and inordinate delay. They submit that the impugned Regulations were promulgated in 2014, some eleven years prior to the institution of these proceedings, and that no satisfactory explanation has been proffered for the delay. In that regard, they place reliance on Rono v Bank of Africa Ltd & another [2024] KEHC 1161 (KLR), wherein the Court, citing with approval Ivita v Kyumbu [1984] KLR 44, affirmed the principle that delay defeats claims for discretionary relief. It is their contention that the Petitioner’s prolonged inaction amounts to acquiescence to the impugned legal regime, and that the Respondents have, in the intervening period, continued to enforce the Regulations as settled law, thereby suffering prejudice. 25. On the substantive merits, the 1st and 2nd Respondents deny that the impugned Regulations impose a blanket prohibition on graffiti or artistic expression. They contend that the Petitioner has fundamentally misconstrued the nature and scope of the Regulations, which, properly understood, regulate rather than prohibit “innovative decorations,” and do so for legitimate safety considerations. They point to the definition introduced by the amending Regulations and the conditions attached thereto, arguing that such conditions are reasonable, proportionate, and narrowly tailored. In particular, they emphasize that the restrictions are confined to decorations on windows, windscreens, lights, indicators, and chevrons, or to those that are offensive, reflective, or that obscure critical safety features. Graffiti applied to permissible parts of the vehicle body, they contend, remains lawful, provided it does not interfere with mandatory identifiers such as the operator’s name, route designation, or the prescribed yellow line. 26. The 1st and 2nd Respondents further anchor their case on the overarching public interest in road safety. They submit that no constitutional right is absolute, and that Article 24 of the Constitution expressly permits the limitation of rights where such limitation is reasonable and justifiable in an open and democratic society. In support of this position, they rely on an audit and analysis conducted by the NTSA, which, they assert, revealed widespread non-compliance with the regulatory framework governing PSV decorations. They have annexed photographic material to demonstrate instances where PSVs were fitted with tinted windscreens, reflective materials, and decorative modifications that materially impaired driver visibility and compromised the safety of passengers and other road users. 27. With respect to public participation, the 1st and 2nd Respondents maintain that the impugned Regulations were subjected to an adequate and constitutionally compliant participatory process. They refer to a stakeholder engagement held on 8th October 2013 at the Kenyatta International Convention Centre (KICC), as well as to a compilation of memoranda, submissions, and stakeholder comments received in the course of the regulatory process. It is their case that these materials demonstrate that diverse stakeholders including PSV operators, corporate entities, and county authorities were consulted and their views taken into account. They further contend that the ongoing review process, initiated through a public notice dated 22nd October 2024, provides an additional avenue for https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6826/eng@2026-04-29 6

page 6 of 22

stakeholder engagement, which the Petitioner has elected not to pursue, thereby rendering the present proceedings premature. 28. On the doctrine of legitimate expectation, the 1st and 2nd Respondents argue that any expectation arising from the 2014 presidential pronouncement was subsequently crystallized and circumscribed by Legal Notice No. 179 of 2014. They contend that such expectation cannot override clear statutory provisions. In this regard, reliance is placed on Pevans East Africa Limited & another v Chairman Betting Control and Licensing Board & 7 others [2017] eKLR, where the Court of Appeal held that legitimate expectation cannot operate in contravention of statute, as well as Communications Commission of Kenya & 5 others v Royal Media Services & 5 others [2014] eKLR, in which the Supreme Court underscored that policy statements do not constitute enforceable promises capable of overriding the law. 29. Turning to the impugned enforcement measures, the 1st and 2nd Respondents contend that the removal of number plates is expressly authorized under section 106(4A) of the Traffic Act, Cap. 403. They further assert that the notice dated 14th May 2025 was not punitive in nature but constituted a lawful administrative directive aimed at ensuring compliance. It is their case that no immediate punitive action was taken on the date of issuance of the notice, and that operators were afforded a reasonable opportunity to rectify any non-compliance. They categorically deny allegations of harassment, corruption, or selective enforcement, contending that such claims are unsubstantiated and unsupported by evidence. 30. It is the 1st and 2nd Respondents submission that the Petition fails to meet the established constitutional threshold for the enforcement of fundamental rights and freedoms. They rely on Anarita Karimi Njeru v Republic [1979] KLR 154, for the principle that a petitioner must plead constitutional violations with reasonable precision, identifying the specific provisions infringed and the manner of infringement. It is their contention that the present Petition falls short of that standard, amounting instead to a generalized and unparticularized challenge to a long-standing regulatory framework. On that basis, they urge the Court to dismiss the Petition with costs. The 3Rd Respondent’s Case 31. The 3rd Respondent, the In-Charge National Police Traffic, neither filed a replying affidavit nor tendered written submissions in response to the Petition. The factual averments made against it therefore remain formally uncontroverted. That notwithstanding, it is well settled that the absence of a response does not relieve a petitioner of the burden of proof, nor does it automatically entitle a party to the reliefs sought. The Petitioner must still discharge the requisite standard of proof on a balance of probabilities. The 4Th And 5Th Respondents’ Case 32. The 4th Respondent is the Honourable Attorney General, while the 5th Respondent is the Cabinet Secretary for Roads and Transport. Their case is set out in the Replying Affidavit sworn by Mohamed Daghara, CBS, the Principal Secretary in the State Department for Transport, on 30th September 2025, together with written submissions dated 24th November 2025. 33. The 4th and 5th Respondents similarly challenge the competence of the Petition, contending that it fails to meet the constitutional threshold articulated in Anarita Karimi Njeru v Republic [1979] KLR 154 and reaffirmed in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR). They argue that the Petitioner has not pleaded, with the requisite precision, the specific constitutional provisions alleged to have been violated, the manner of such violation, or the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6826/eng@2026-04-29 7

page 7 of 22

prejudice suffered. In their view, the Petition is speculative, evidentially deficient, and premised on generalized allegations lacking particularity. 34. The 4th and 5th Respondents further contend that the notice dated 14th May 2025 constitutes a lawful enforcement measure within the existing statutory and policy framework. They place reliance on the Integrated National Transport Policy (Sessional Paper No. 1 of 2012), which, they submit, provides the overarching framework for transport safety, compliance enforcement, and structured regulation of the PSV sector. It is their position that the impugned notice is consistent with, and indeed gives effect to, this policy framework, and does not introduce any novel or arbitrary requirements. 35. On the alleged violation of Article 27 of the Constitution, the 4th and 5th Respondents submit that the claim of discrimination is unsubstantiated. They argue that the Petition fails to identify any comparator group or to demonstrate differential treatment based on a prohibited ground. In support of this position, they rely on Hersi Hassan Gutale & Abdullahi Mohamed Ahmed v Principal Registrar of Persons & Attorney General [2004] KEHC 98 (KLR). They further contend that the invocation of Article 34 (freedom of the media) is misconceived, as that provision relates to institutional media freedoms rather than commercial branding or vehicle decoration. 36. Similarly, they argue that Article 35 (access to information) is inapplicable in the absence of any demonstrated request for information made to, and declined by, the Respondents. 37. The 4th and 5th Respondents also emphasize the primacy of road safety and the State’s obligation under Article 26 to safeguard the right to life. They submit that while the so-called matatu culture may possess cultural significance, it cannot be invoked to justify non-compliance with safety regulations or the introduction of hazardous modifications to public transport vehicles. In their view, the right to culture under Article 11 is not absolute and must be balanced against competing constitutional imperatives, including public safety and regulatory accountability. 38. It is on the foregoing grounds, that the 4th and 5th Respondents urge the Court to dismiss the Petition with costs. THE 6TH RESPONDENT’S CASE 39. The 6th Respondent, the National Assembly, opposes the Petition through grounds of opposition dated 22nd October 2025 and written submissions of even date. 40. The 6th Respondent invokes the presumption of constitutionality attaching to statutory instruments and submits that the Petitioner has failed to demonstrate that the impugned Regulations are manifestly irrational, disproportionate, or otherwise unconstitutional. It is their case that the Regulations were duly transmitted to the Clerk of the National Assembly and laid before the House on 18th March 2014, and subsequently subjected to scrutiny by the Committee on Delegated Legislation in accordance with section 12 of the Statutory Instruments Act, 2013. In the absence of any resolution to annul or vary the instrument within the prescribed statutory period, the Regulations, they contend, took effect by operation of law and remain valid subsidiary legislation. 41. The 6th Respondent further submits that this Court ought to exercise restraint in matters of policy, which fall within the constitutional remit of the Executive and the Legislature. In that regard, reliance is placed on Onyango & 11 others v Attorney General & 4 others [2005] KEHC 3204 (KLR) and Speaker of the Senate & another v Attorney-General & another Law Society of Kenya & 2 others (Amicus Curiae) [2013] KESC 7 (KLR), for the proposition that judicial intervention is warranted only where there is a clear and demonstrable violation of the Constitution. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6826/eng@2026-04-29 8

page 8 of 22

42. The 6th Respondent also contends that the reliefs sought by the Petitioner are, in any event, incapable of being granted in the absence of specificity. It is submitted that the Petitioner has failed to identify the particular vehicles allegedly impounded or the number plates allegedly removed, and that orders for release or compensation cannot issue in vacuo. 43. In the alternative, and without prejudice to the foregoing, the 6th Respondent urges that should the Court be inclined to find the Petition meritorious, any declaration of invalidity ought to be suspended to afford Parliament an opportunity to undertake remedial measures. In support of this submission, reliance is placed on Cabinet Secretary for the National Treasury and Planning & 4 others v Okotiti & 52 others Bhatia (Amicus Curiae) [2024] KESC 63 (KLR). It is contended that the immediate invalidation of the Regulations would create a regulatory vacuum in the PSV sector, with potentially grave consequences for public safety and the orderly regulation of a critical component of the national transport system. 44. On these grounds, the 6th Respondent urges that the Petition be dismissed, with no order as to costs. Analysis And Determination 45. Having carefully considered the Amended Petition, the affidavits on record, the grounds of opposition, the respective written submissions of the parties, and the authorities relied upon, this Court is of the considered view that the following issues arise for determination: i. Whether the 1st and 2nd Respondents amended replying affidavit is competent and should be struck out. ii. Whether the Petition is incompetent and fatally defective for laches, inordinate delay, and failure to meet the constitutional threshold for pleading. iii. Whether the process leading to the enactment of the impugned Regulations was unconstitutional for lack of public participation, consultation, and parliamentary scrutiny. iv. Whether the impugned Regulations are vague and ambiguous, thereby violating the principles of legality, good governance, and the right to fair administrative action. v. Whether the limitations imposed by the impugned Regulations on the rights to artistic creativity, cultural expression, and property are reasonable and justifiable under Article 24 of the Constitution. vi. Whether the NTSA notice of 14th May 2025 is illegal, unconstitutional, and a violation of the right to fair administrative action and legitimate expectation. vii. Whether the Petitioner is entitled to the reliefs sought. Whether the 1st and 2nd Respondents amended replying affdavit is competent and should be struck out. 46. The Petitioner raises a preliminary objection to the competency of the document titled “1st and 2nd Respondents’ Amended Replying Affidavit.” It is contended that an affidavit, being a sworn evidentiary instrument rather than a pleading, is not amenable to amendment. The Petitioner contends that any attempt to amend an affidavit offends the sanctity of oath and thereby renders the entire affidavit a nullity in law. Reliance is placed on the decisions in Stephen Boro Githua v Family Finance Building Society & 3 Others supra and Superior Homes (Kenya) PLC v Water Resources Authority & 9 others (supra). https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6826/eng@2026-04-29 9

page 9 of 22

47. The Court has given due consideration to the objection so raised. It is not in dispute that neither the Civil Procedure Rules nor the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (the Mutunga Rules) make express provision for the amendment of affidavits. An affidavit is, by its very nature, a solemn declaration of fact on oath, sworn as at a particular point in time, and intended to stand as a representation of veracity within those confines. It follows, therefore, that any alteration to its substantive contents must be approached with considerable circumspection, lest the integrity of sworn evidence be undermined. 48. That said, the Court is enjoined to draw a principled distinction between amendments that go to the substance of sworn depositions, and those that are purely formal, cosmetic, or technical in nature. The former category, which would alter the evidentiary substratum of the affidavit, is plainly impermissible. The latter category, however, which relates to rectification of clerical errors, misdescription, or inadvertent typographical inaccuracies, may be permitted where it does not occasion prejudice or alter the purport of the sworn evidence. This position finds support in Swaleh Gheithan Saanun v Commissioner of Lands & 5 others [2002] KEHC 1168 (KLR), where Onyancha J. observed that while the substantive contents of an affidavit ought not to be amended, minor corrections relating to nomenclature or description are permissible so long as they do not distort the meaning or substance of the deposition. 49. In the present case, the Court has undertaken a comparative examination of the Replying Affidavit sworn on 20th June 2025 and the document titled the Amended Replying Affidavit sworn on 10th July 2025. The Replying affidavit comprised twenty-seven (27) paragraphs, while the subsequent depositions expanded to thirty-nine (39) paragraphs. The impugned amended affidavit substantially mirrors the further affidavit in structure and content, with additional depositions addressing issues of laches, the status of the ongoing regulatory review process, and annexures introduced in response to matters raised by the Petitioner. Importantly, the Court does not discern any material contradiction, retraction, or departure from the substance of the original sworn evidence. Rather, the impugned affidavit appears to amplify and contextualise the Respondents’ position without displacing its foundational factual basis. 50. More fundamentally, this Court is guided by the constitutional imperative enshrined under Article 159(2)(d) of the Constitution, which commands that justice shall be administered without undue regard to procedural technicalities. The Court of Appeal, in Superior Homes (Kenya) PLC v Water Resources Authority & 9 others (supra), underscored that procedural questions must always be evaluated in light of the overarching interests of substantive justice and the particular circumstances of each case. In the present instance, the Petitioner has neither demonstrated nor alleged any prejudice arising from the filing of the impugned affidavit. On the contrary, the record shows that the Petitioner was afforded and indeed utilised the opportunity to respond thereto through his Further Affidavits sworn on 16th July 2025 and 18th December 2025, thereby engaging fully with the substance of the Respondents’ averments. 51. In the premises, and upon a holistic consideration of the objection, the applicable legal principles, and the dictates of substantive justice, the Court finds no basis to uphold the challenge raised. The Court accordingly exercises its discretion in favour of sustaining the impugned document on record. The objection is therefore overruled, and the 1st and 2nd Respondents’ Amended Replying Affidavit is hereby deemed properly filed and shall be considered in determining the merits of the Petition. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6826/eng@2026-04-29 10

page 10 of 22

Whether the Petition is incompetent and fatally defective for laches, inordinate delay, and failure to meet the constitutional threshold for pleading. 52. The 1st and 2nd Respondents challenge the competence of the Petition on two principal grounds. First, that the Petition is defeated by the equitable doctrine of laches and inordinate delay, the impugned Regulations having been enacted in 2014, yet the present challenge having been mounted only in 2025. Secondly, that the Petition does not meet the settled constitutional threshold of precision in pleading as articulated in Anarita Karimi Njeru v Republic and reaffirmed in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others. 53. On their part, the Respondents submit that the Petitioner’s delay of approximately eleven (11) years in challenging the Regulations is inordinate, unexplained, and evidences acquiescence. They contend that such delay is inimical to the administration of justice, particularly where the legal framework has been operational, applied, and relied upon by regulated actors over a prolonged period. It is further argued that the Petition is an afterthought triggered by enforcement action rather than a genuine constitutional grievance. 54. The Petitioner, in rebuttal, contends that constitutional claims are not subject to statutory limitation periods and that delay, however long, cannot of itself extinguish a violation of constitutional rights. He further submits that the cause of action only crystallised in May 2025 upon the issuance of the NTSA enforcement notice, which he characterises as the first concrete act of enforcement against the impugned regulatory framework. 55. The Court accepts as a matter of settled principle that constitutional petitions are not governed by the Limitation of Actions Act, Cap. 22. The absence of a statutory limitation period for enforcement of fundamental rights and freedoms has been affirmed in jurisprudence, including David Gitau Njau & 10 others v Attorney General (Petition No. 340 of 2012), where the Court underscored that constitutional rights are not extinguished by lapse of time. 56. However, it is equally well established that while constitutional claims are not barred by statutory limitation periods, courts retain discretion to apply the equitable doctrine of laches. 57. Laches is founded upon unreasonable delay in asserting a right, coupled with resulting prejudice to the adverse party. The guiding inquiry, as restated in Wilson Kiarie Njoroge v Family Bank Ltd & Another [2015] eKLR and Moses Muriira Maingi & 2 others v Maingi Kamuru & Another (Nyeri CA No. 151 of 2010), is whether the delay is inordinate and inexcusable, and whether in the circumstances justice can still be done notwithstanding the lapse of time. The Court must also consider whether the Respondent has suffered prejudice, including evidentiary or practical prejudice occasioned by the delay. 58. Applying the foregoing principles, it is not in dispute that the impugned Regulations were enacted in 2014 and have remained in force for over a decade. The delay in mounting a direct challenge to their validity is therefore prima facie substantial. However, the Court is not persuaded that the delay is wholly unexplained. The Petitioner has relied on the 2014 presidential pronouncement and the subsequent regulatory environment, contending that these created a perception of permissibility of artistic expression within the PSV sector. While such perception does not override the law, it provides a plausible explanation for the absence of earlier litigation. 59. More significantly, the Court observes that the immediate trigger of the present proceedings is not merely the existence of the 2014 Regulations, but the NTSA enforcement notice dated 14th May 2025. The gravamen of the Petition is the alleged enforcement action taken pursuant to that notice, including https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6826/eng@2026-04-29 11

page 11 of 22

impoundment of vehicles and removal of registration plates. In that regard, the Petition was instituted on 3rd June 2025, approximately twenty (20) days after the impugned administrative action, a period which cannot, in the circumstances, be characterised as inordinate. 60. On the question of prejudice, the Court is not satisfied that the Respondents have demonstrated any material prejudice arising from the alleged delay. The impugned Regulations are formal instruments of law whose text and scope are not in dispute. The Respondents have been fully able to respond to the Petition on its merits through affidavits and submissions. No evidentiary material has been shown to have been lost, nor has it been demonstrated that the passage of time has impaired the ability of the Court to fairly adjudicate the dispute. The allegation of acquiescence, while relevant to the substantive evaluation of rights, does not in itself bar the Petition. 61. In the premises, the Court finds no basis for striking out the Petition on the ground of laches or inordinate delay. 62. The Court now turns to the second limb of the objection, namely whether the Petition satisfies the constitutional threshold of precision in pleading. The principle in Anarita Karimi Njeru v Republic requires that a petitioner must set out with reasonable precision the rights alleged to have been violated and the manner in which they have been infringed. This principle was further refined by the Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others, where the Court emphasised that pleadings must disclose a clear nexus between the facts relied upon and the constitutional provisions invoked. 63. In the present case, the Petitioner invokes a wide range of constitutional provisions, including Articles 10, 11, 27, 32, 33, 34, 35, 40, and 47 of the Constitution. On its face, the Amended Petition is extensive and detailed. However, upon closer scrutiny, the deficiency lies not in the enumeration of rights, but in the absence of sufficient particularity connecting the alleged violations to demonstrable facts attributable to the Petitioner or an identifiable class with requisite specificity. 64. The Petition advances broad allegations of harassment, selective enforcement, and unlawful impoundment of public service vehicles bearing artistic designs. Yet, save for limited documentary material including a single photograph of vehicle registration number KDL 263A and certain compliance certificates the Petitioner has not demonstrated personal exposure to the alleged enforcement measures. He does not plead with clarity his standing in the PSV industry, the specific vehicles affected, or the precise dates and circumstances of the alleged violations. The allegations of discriminatory enforcement, including reference to NTSA vehicle KCE 348D, are similarly unsupported by evidentiary linkage demonstrating differential treatment in comparable circumstances. 65. The purpose of the requirement of precision in constitutional litigation is not ornamental. It serves the substantive ends of justice by ensuring that respondents are properly apprised of the case they must answer, and that the Court is seized of clearly defined issues for determination, thereby avoiding the transformation of constitutional litigation into speculative or generalized grievances. As stated in Mumo Matemu supra: “ Pleadings play a critical role in defining issues in controversy and ensuring fair notice to the opposing party. The principle in Anarita Karimi Njeru is an extension of this requirement of fair notice and reasonable precision.” 66. That said, the Court is equally mindful that precision does not connote mathematical exactitude or procedural rigidity. Constitutional pleadings are to be construed holistically and with a view https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6826/eng@2026-04-29 12

page 12 of 22

to substantive justice. When so construed, the Court is able to distil a coherent core grievance, namely, that the impugned Regulations and their enforcement through the NTSA notice of 14th May 2025 allegedly infringe constitutional protections relating to expression, culture, property, and fair administrative action. 67. Accordingly, while the Petition exhibits deficiencies in particularity and evidentiary linkage, it is not so fundamentally defective as to warrant striking out at the threshold. The said deficiencies shall, however, bear weight in the Court’s ultimate evaluation of whether the alleged constitutional violations have been proved to the required standard. Whether the process leading to the enactment of the impugned Regulations was unconstitutional for lack of public participation, consultation, and parliamentary scrutiny. 68. The Petitioner mounts a serious constitutional challenge to the validity of the impugned Regulations on the basis that they were enacted in breach of the constitutional and statutory duty of public participation. It is contended that the process was procedurally defective, insufficiently consultative, and therefore inconsistent with Articles 10, 118, and 232 of the Constitution, as read together with the Statutory Instruments Act, 2013. 69. The Respondents, on the other hand, maintain that the Regulations were preceded by extensive stakeholder engagement, structured consultation forums, and subsequent parliamentary scrutiny, thereby satisfying the constitutional threshold. 70. There is no contest that public participation is a foundational constitutional imperative. Article 10 of the Constitution elevates it to a national value binding all State organs, while Articles 118 and 232 impose an affirmative obligation on legislative and administrative bodies to facilitate public involvement in decision-making processes. The jurisprudential consequences of non-compliance are equally well settled, a failure to undertake meaningful public participation may render subordinate legislation unconstitutional and void. 71. The jurisprudential contours of public participation are now well settled. In Kiambu County Government & 3 Others v Robert N. Gakuru & Others [2017] eKLR, the Court of Appeal underscored the centrality of public participation as a constitutional imperative, observing that it is not a peripheral procedural formality but a foundational element of democratic governance, binding upon all State organs and actors exercising public power under Article 10 of the Constitution. 72. The Supreme Court in British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others Kenya Tobacco Control Alliance & another (Interested Parties) Mastermind Tobacco Kenya Limited (The Affected Party) [2019] eKLR authoritatively articulated the constitutional content of public participation in the following terms: “ Public participation has been entrenched in our Constitution as a national value and a principle of governance under Article 10 of the Constitution and is binding on all State organs, State officers, public officers and all persons whenever they apply or interpret the Constitution; enact, apply or interpret any law; or make or implement public policy decisions. It is anchored on the principle of the sovereignty of the people which permeates the Constitution and, in accordance with Article 1(4), is exercised at both national and county levels.” 73. The Court further emphasized that public participation is not a procedural formality, but a substantive constitutional safeguard through which the people retain sovereign control over delegated governance authority. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6826/eng@2026-04-29 13

page 13 of 22

74. From the foregoing, the Supreme Court distilled guiding principles which this Court considers dispositive of the present inquiry, namely that public participation: i. Public participation is a constitutional imperative applicable to all governance processes. ii. The duty to facilitate participation lies with the public authority undertaking the decisionmaking process. iii. The absence of a rigid procedural framework does not excuse non-compliance. iv. Participation must be real, meaningful, and not illusory. v. Reasonable notice and opportunity must be afforded. vi. The sufficiency of participation is context-specific and must be evaluated on a case-by-case basis, without automatically vitiating the process upon mere allegation of inadequacy. 75. This proportionality-based approach is consistent with comparative constitutional jurisprudence. In Land Access Movement of South Africa Association for Rural Development and others v Chairperson of the National Council of Provinces and others, the South African Court underscored that the adequacy of public participation is to be assessed on the standard of reasonableness, taking into account the nature of the legislation, institutional constraints, and the practical realities of governance. 76. Against this legal standard, the Court turns to the evidentiary record. The record demonstrates that a structured Public Transport Stakeholders Conference was convened on 8th October 2013 at the Kenyatta International Convention Centre (KICC), as evidenced by annexure “AK-4”. The conference was attended by senior State officials, including the Principal Secretary for Transport, the Chairman of the National Transport and Safety Authority Board, and the Cabinet Secretary for Transport and Infrastructure, alongside key industry stakeholders. The engagement comprised technical presentations, group discussions, and plenary deliberations on the draft Regulations. The process was neither perfunctory nor ceremonial; it was structured, participatory, and demonstrably deliberative in character. 77. Further, annexure “AK-5” comprises a comprehensive collation of written submissions, memoranda, and stakeholder proposals received during the regulatory review process. The material reveals participation from a broad cross-section of stakeholders, including long-distance operators, SACCOs, county governments, private transport companies, and State agencies. 78. The submissions were substantive in nature and addressed specific regulatory clauses, including operational licensing frameworks, safety standards, route regulation, and vehicle modification controls. This demonstrates not only participation in form, but engagement in substance. 79. On the totality of the evidence, this Court is satisfied that the public participation process exhibited both qualitative and quantitative sufficiency. The participation was not confined to symbolic consultation rather, it involved meaningful engagement with stakeholders directly affected by the regulatory framework. 80. The subsequent promulgation of Legal Notice No. 179 of 2014 further reflects that the views received were considered and incorporated in part into the final regulatory scheme, including the structured regulation of “innovative decorations” within defined safety parameters. 81. The Petitioner, however, contends that the process was constitutionally deficient on account of its linguistic medium and accessibility, arguing that the process excluded members of the public who could not engage in English and was insufficiently disseminated beyond online platforms. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6826/eng@2026-04-29 14

page 14 of 22

82. While Article 7 of the Constitution recognizes Kiswahili and English as official languages, the Constitution does not impose a rigid linguistic exclusivity requirement for public participation. The constitutional standard is one of reasonableness, not linguistic uniformity. 83. In the present case, the impugned Regulations concern a specialised regulatory regime governing Public Service Vehicles, a commercial and licensed sector populated by organised entities, associations, and regulated operators. In that context, meaningful participation is properly directed at stakeholders within the regulated industry, who are best placed to engage with technical proposals and operational requirements. The Court is satisfied that such stakeholders were not only afforded an opportunity to participate but actively engaged in the process through structured forums and written submissions. 84. The Petitioner further alleges non-compliance with the Statutory Instruments Act, particularly sections 11, 12, and 13 thereof, contending that the Regulations were not subjected to proper parliamentary scrutiny. However, the 6th Respondent, the National Assembly, has placed before the Court uncontroverted evidence demonstrating that the Regulations were duly transmitted to the Clerk of the National Assembly on 14th March 2014, tabled before the House on 18th March 2014, and subsequently committed to the Committee on Delegated Legislation for consideration. No resolution annulling or varying the instrument was made within the statutory timeline, thereby allowing the Regulations to take full legal effect by operation of law. In the absence of any rebuttal evidence, the Court accepts this position as sufficiently established. 85. In light of the foregoing analysis, and applying the BAT proportionality framework, this Court finds process leading to the enactment of the impugned Regulations complied with the constitutional requirement of public participation that the consultation process was structured, meaningful, and sufficiently inclusive of relevant stakeholders, that the requirements of parliamentary scrutiny under the Statutory Instruments Act were duly satisfied and that the Petitioner has failed to demonstrate any constitutional or statutory breach capable of vitiating or invalidating the Regulations. 86. Accordingly, the challenge premised on alleged lack of public participation, consultation, and parliamentary oversight fails in its entirety. Whether the impugned Regulations are vague and ambiguous, thereby violating the principles of legality, good governance, and the right to fair administrative action. 87. The Petitioner contends that Regulation 7(e), which provides that “music played does not exceed the prescribed limits,” and Regulation 7(l), which requires that “all innovative decorations are not offensive,” are constitutionally infirm on account of vagueness and ambiguity. It is his case that the absence of express definitional thresholds renders these provisions incapable of objective application, thereby conferring upon enforcement officers unfettered discretion and creating fertile ground for arbitrariness, discrimination, and abuse of power contrary to Articles 10 and 47 of the Constitution. 88. The constitutional doctrine of legality, as an incident of the rule of law, requires that legal norms be expressed with sufficient clarity and precision to enable those subject to them to regulate their conduct accordingly, and to provide a discernible standard for those charged with their enforcement. However, it is equally well settled that the Constitution does not demand absolute or mathematical certainty in legislative drafting. Modern regulatory governance often necessitates the use of broad evaluative standards which are capable of contextual application. 89. In Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, the Court of Appeal underscored that constitutional adjudication must balance the need for normative clarity with practical governance considerations, and cautioned against an overly formalistic approach that https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6826/eng@2026-04-29 15

page 15 of 22

would render regulatory instruments unworkable. Similarly, in Nairobi Metropolitan PSV Saccos Union Ltd & 25 others v County of Nairobi Government & 3 others [2013] eKLR, the High Court recognised that in complex regulatory environments particularly in the transport sector the law may properly employ general standards, provided such standards are situated within a coherent regulatory framework capable of guiding both compliance and enforcement. 90. The guiding constitutional inquiry is therefore whether the impugned provisions, read reasonably and in their proper statutory context, possess a sufficiently ascertainable core meaning to avoid arbitrary enforcement. 91. Turning to Regulation 7 holistically, it is evident that it forms part of a detailed regulatory architecture governing public service vehicles. The Regulation contains numerous provisions framed in precise and objective terms, including specifications on signage dimensions, visibility requirements, and prohibitions relating to modifications of safety-critical components such as windows, windscreens, lights, indicators, and chevrons. The impugned provisions must therefore be understood not in isolation, but as part of an integrated regulatory scheme whose overall objective is road safety and standardisation. 92. With respect to Regulation 7(e), the reference to “prescribed limits” is not, properly construed, inherently vague. The evidence placed before the Court, including the NTSA enforcement notice dated 14th May 2025, demonstrates that the operationalisation of permissible sound levels is undertaken through subsidiary guidelines issued by the regulator. Kenyan courts have consistently recognised the legitimacy of such delegated standard-setting mechanisms in technical and dynamic sectors, provided that the guidelines are accessible, transparent, and consistently applied. In that regard, the provision does not confer unfettered discretion but rather incorporates an ascertainable regulatory mechanism external to the parent Regulations. 93. Regulation 7(l), which proscribes “offensive” innovative decorations, similarly employs an evaluative standard rather than an absolute prohibition. The Court accepts that the term “offensive” necessarily calls for contextual judgment. However, that fact alone does not render the provision unconstitutional. The Constitution itself employs evaluative standards in multiple contexts, including under Article 33(2) which recognises permissible limitations on expression in relation to hate speech, incitement to violence, and protection of public morality. Properly construed, “offensive” in the regulatory context is capable of objective calibration by reference to established legal and societal benchmarks, including indecency, obscenity, and content that undermines public safety or order. 94. The Court is not persuaded that the mere use of evaluative terminology renders a statutory or regulatory instrument void for vagueness. The constitutional threshold is not certainty in abstraction, but sufficiency of guidance in application. The question is whether the provision, viewed reasonably and in context, constrains discretion within intelligible bounds and thereby guards against arbitrary enforcement. 95. The Petitioner has not placed before the Court any specific instance in which the impugned provisions have been applied in an arbitrary, inconsistent, or discriminatory manner against him or any identifiable class of persons. Allegations of potential abuse, without evidentiary demonstration of actual constitutional injury, cannot suffice to invalidate otherwise lawful regulatory provisions. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6826/eng@2026-04-29 16

page 16 of 22

96. The Petitioner’s challenge to the removal of number plates, though framed within the broader vagueness argument, is in substance a question of statutory authority rather than linguistic uncertainty. The Court is guided by Section 106(4A) of the Traffic Act, Cap. 403, which expressly provides that: “ Where a police officer, licensing officer or inspector makes an order under subsection (4) he may remove the vehicle identification plates and the vehicle licence and, if he does so, shall deliver them to the Authority to be kept while that order remains in force.” 97. The statutory architecture is therefore explicit. Once an order of prohibition is issued under Section 106(4) where a vehicle is found to be dangerous or non-compliant the removal of number plates is a lawful consequential enforcement measure designed to prevent continued use of the offending vehicle. This position was affirmed in Mwangi & 13 others v In-Charge National Police Traffic & another; Attorney General (Interested Party) [2025] KEHC 12264 (KLR), where the High Court upheld the legality of removal and retention of number plates as a valid exercise of statutory power. 98. In the premises, the Court finds that the impugned Regulations, when read as a whole and within their statutory context, are sufficiently clear, intelligible, and capable of objective application. They do not confer unfettered discretion, nor do they fall afoul of the constitutional doctrine of legality. 99. Accordingly, the Court finds and holds that the Petitioner has failed to demonstrate that the impugned Regulations are void for vagueness or that they violate Articles 10 or 47 of the Constitution. Whether the limitations imposed by the impugned Regulations on the rights to artistic creativity, cultural expression, and property are reasonable and justiffiable under Article 24 of the Constitution. 100. This is the central issue for determination. The Petitioner contends that the impugned Regulations unjustifiably limit his rights under Articles 33(1)(b), 11, and 40 of the Constitution. The Respondents, in opposition, submit that any limitation is constitutionally permissible under Article 24, being reasonably and justifiably imposed in pursuit of the compelling public interest of road safety and the protection of life under Article 26. 101. The Court is mindful that the rights implicated herein occupy a foundational place in the constitutional order. Freedom of artistic creativity under Article 33(1)(b) protects not only expression in its conventional sense but also the broader realm of imagination, design, and cultural production. Equally, Article 11 recognises culture as the foundation of the Republic and obligates the State to promote its diverse manifestations. The matatu artistic ecosystem is one such manifestation and evolving cultural expression characterised by visual art, graffiti, music, and aesthetic design, which has acquired both social and economic significance. 102. However, it is equally settled that constitutional rights are not absolute. Article 24 of the Constitution establishes a structured framework for limitation, requiring that any restriction be reasonable and justifiable in an open and democratic society. The Supreme Court has consistently affirmed that this inquiry is not mechanical but evaluative, requiring a contextual balancing of competing constitutional interests. 103. In British American Tobacco Kenya PLC v Cabinet Secretary for Health supra the apex Court authoritatively held that limitation of rights is constitutionally permissible where it pursues a legitimate public purpose and satisfies proportionality standards under Article 24. The Court emphasised that where the State acts in pursuit of public health and safety objectives, courts must accord due deference https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6826/eng@2026-04-29 17

page 17 of 22

to regulatory judgment, provided the measures adopted are rationally connected to the objective and are not arbitrary or manifestly excessive. 104. The principle that emerges from the Supreme Court jurisprudence is that Article 24 does not require the State to choose the least restrictive conceivable means in the abstract, but rather a constitutionally reasonable measure within a range of permissible regulatory responses. The Court’s role is not to substitute its own policy preference, but to determine whether the impugned limitation falls within constitutional bounds. 105. In the present case, the objective of the impugned Regulations is road safety, a matter directly connected to the protection of life under Article 26 of the Constitution. The Court takes judicial notice that road traffic accidents remain a significant cause of mortality and injury in Kenya. The public service vehicle sector, by its nature, carries large volumes of passengers and therefore constitutes a high-risk regulatory environment requiring stringent safety controls. 106. The challenged provisions under Regulation 7(m) - (p) prohibit modifications to windows, windscreens, lighting systems, and reflective surfaces that may impair visibility, distort signalling, or distract road users. Properly understood, these are not aesthetic prohibitions but safety-preserving interventions directed at maintaining the integrity of vehicle operation and road user communication. The restriction is therefore not aimed at artistic suppression but at mitigating identifiable and demonstrable safety risks. 107. Importantly, the Regulations do not extinguish artistic or cultural expression. Artistic branding remains permissible on the body of the vehicle, provided it does not obscure statutory identifiers. Music is also permitted within prescribed limits. The regulatory scheme therefore represents a calibrated limitation rather than a prohibition, permitting cultural expression within safety-compliant boundaries. 108. The Court is further guided by the Supreme Court’s approach in Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others [2021] eKLR, where it was held that constitutional rights must be interpreted in a manner that balances individual entitlements with broader public interest considerations, particularly where State regulation is directed at legitimate planning, safety, or welfare objectives. 109. Against that jurisprudential backdrop, the Court finds that the impugned Regulations bear a clear rational connection to their objective. Modifications that impair visibility, obscure lighting signals, or introduce reflective distraction directly undermine road safety. The State is therefore entitled to regulate such modifications in pursuit of preventing harm. 110. On the issue of less restrictive means, the Court accepts that alternative regulatory models such as graded tint percentages or conditional lighting standards may be conceivable. However, constitutional reasonableness does not demand theoretical optimality. In line with BAT (supra), the question is whether the measure chosen falls within a constitutionally acceptable range of policy choices. In complex regulatory environments such as public transport safety, the State is entitled to adopt brightline rules where graduated standards would undermine enforceability, create ambiguity, or increase enforcement discretion. 111. The Court is persuaded that the impugned framework meets this threshold. The limitations are targeted, safety-specific, and confined to aspects of vehicle modification that present direct operational risk. They are therefore reasonably tailored and do not amount to disproportionate interference with protected rights. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6826/eng@2026-04-29 18

page 18 of 22

112. On the issue of property rights under Article 40, the Court finds that the Regulations regulate use rather than effect deprivation. Regulatory control over the manner of use of motor vehicles in the public interest is a well-established incident of ownership in a constitutional democracy. Temporary enforcement measures, including removal of number plates pending compliance, do not constitute expropriation but lawful regulatory enforcement. 113. The allegation of selective enforcement does not alter the constitutional analysis. As the Supreme Court has consistently held, the constitutionality of legislation is assessed on its text, purpose, and effect, not on alleged imperfections in enforcement. The appropriate remedy for inconsistent enforcement lies in administrative or supervisory relief, not invalidation of the regulatory framework. 114. In the final analysis, applying the proportionality framework endorsed in BAT (supra) and R v Oakes [1986] 1 S.C.R. 103, which has been adopted by Kenyan courts, the Court finds that: 115. a. The objective of the Regulations is pressing and substantial, being the protection of life and road safety. b. The measures are rationally connected to that objective. c. The limitations are reasonably tailored and fall within a constitutionally permissible range of regulatory choices. d. The public benefit in terms of safety and reduction of risk outweighs the incidental limitation on artistic and cultural expression. Accordingly, the Court finds and holds that the impugned Regulations constitute a reasonable and justifiable limitation of rights within the meaning of Article 24 of the Constitution. Whether the NTSA notice of 14th May 2025 is illegal, unconstitutional, and a violation of the right to fair administrative action and legitimate expectation. 116. The NTSA Notice dated 14th May 2025 is impugned on the basis that it was issued without consultation, that it took immediate effect, that it introduced or threatened severe enforcement consequences including impoundment and licence revocation, and that it violated what the Petitioner characterises as a legitimate expectation arising from a 2014 Presidential pronouncement and the State’s subsequent recognition of matatu artistic culture. 117. The Court has considered the nature and legal character of the impugned Notice. On its face, it is titled “Re: Branding and Use of Innovative Decorations by Public Service Vehicles” and expressly anchors itself on Regulation 7 of the impugned Regulations. It does not purport to create new legal obligations, nor does it introduce new regulatory prohibitions. Properly understood, it is an administrative enforcement communication issued to remind licensees of pre-existing obligations already contained in subsidiary legislation enacted in 2014. Its operative effect is therefore not normative but managerial, being directed at compliance with an already binding legal framework. 118. In that context, the constitutional enquiry under Article 47 of the Constitution does not proceed on the assumption that every enforcement directive must be preceded by fresh consultation. Article 47, as given effect by the Fair Administrative Action Act, requires that administrative action be lawful, reasonable, and procedurally fair. However, fairness is not assessed in the abstract or in isolation from the regulatory environment within which the action is taken. As was observed by the Court of Appeal in Judicial Service Commission v Mbalu Mutava & another [2015] eKLR, Article 47 constitutionalises administrative justice, but the content of fairness is context-specific and depends on the nature of the decision and the statutory scheme under which it is made. Likewise, in Dry Associates Ltd v Capital https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6826/eng@2026-04-29 19

page 19 of 22

Markets Authority & another [2012] eKLR, the Court recognised that procedural fairness is a flexible standard which must be tailored to the circumstances of the case. 119. Measured against that standard, the Court is not persuaded that the impugned Notice offends Article 47 merely because it required compliance with immediate effect. Where regulated parties are already bound by clear statutory obligations, an administrative directive calling for compliance cannot be equated with the imposition of new legal burdens requiring renewed participatory processes. The immediacy complained of must be understood against the backdrop of a continuing regulatory duty that had been in force for over a decade. 120. The argument grounded on legitimate expectation requires more careful consideration. Kenyan courts have consistently held that a claim founded on legitimate expectation must be anchored on a clear and unambiguous representation made by a competent public authority within the scope of its legal powers, which induces a reasonable expectation, and which it would be unjust, unreasonable, or an abuse of power to permit the authority to resile from. The Court of Appeal in Kenya Revenue Authority v Export Trading Company Limited [2018] eKLR reaffirmed these cumulative requirements, while the Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] eKLR made it plain that legitimate expectation cannot operate contrary to statute or be invoked to defeat clear legal provisions. 121. This position has also been reiterated in subsequent decisions including Tarcius v Kenya School of Law & another [2023] KELEAT 378 (KLR), which emphasised that legitimate expectation cannot be used to circumvent clear statutory requirements. 122. In the present case, the expectation asserted by the Petitioner is founded on a general presidential pronouncement made in 2014 and on subsequent State appreciation of matatu artistic expression. Even assuming that such conduct may have generated a perception of tolerance towards artistic modification of public service vehicles, that perception cannot, in law, crystallise into a legitimate expectation capable of overriding express regulatory provisions governing road safety, vehicle modification, and visibility standards. A legitimate expectation must be grounded in legality, it cannot be constructed in opposition to it. 123. In any event, any informal expectation that may have existed prior to the enactment of the 2014 regulatory framework was overtaken and structured by Legal Notice No. 179 of 2014, which introduced a regulated regime permitting artistic expression within defined safety parameters. What emerged thereafter was not an unregulated entitlement but a controlled and conditional permission subject to compliance with safety-oriented restrictions. 124. The Court is therefore not satisfied that there exists any clear, unambiguous, or enforceable representation capable of sustaining a legitimate expectation that the regulatory regime would not be enforced. Nor has it been demonstrated that the Respondents acted in a manner that would render departure from such expectation, even if it existed, unfair or abusive. 125. The additional complaint that the Notice introduced disproportionate sanctions also does not withstand scrutiny. The Notice itself does not create penalties. It merely draws attention to enforcement consequences already provided for under the governing statutory and regulatory framework. The legality of those consequences cannot be attributed to the Notice, they are a function of the parent legislation. 126. Accordingly, the Court finds that the NTSA Notice of 14th May 2025 is a lawful administrative instrument issued in furtherance of existing statutory obligations. It does not violate Article 47 of the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6826/eng@2026-04-29 20

page 20 of 22

Constitution, does not infringe any legally cognisable legitimate expectation, and does not amount to unlawful administrative action. The challenge therefore fails. Whether the Petitioner is entitled to the reliefs sought 127. The Petitioner seeks a multiplicity of reliefs, including declaratory orders pronouncing the impugned Regulations unconstitutional, an order of certiorari to quash the NTSA Notice dated 14th May 2025, injunctive relief restraining enforcement, orders of mandamus compelling the release of impounded vehicles and restoration of removed number plates, as well as compensation for alleged violation of constitutional rights. 128. The grant of constitutional remedies is not automatic. It is contingent upon the demonstration of a violation of the Constitution or the law, and each relief is governed by distinct legal principles. Declaratory relief, in particular, issues only where a petitioner has established the existence of a legal right and a corresponding violation. Similarly, the remedy of certiorari lies to quash decisions that are tainted by illegality, irrationality, or procedural impropriety, while mandamus issues to compel the performance of a public duty that has been unlawfully withheld. Injunctive relief, whether interim or permanent, presupposes the existence of an unlawful act or threatened violation requiring restraint. Compensation, on the other hand, is a consequential remedy that flows from proof of a constitutional breach and demonstrable injury. 129. In the present case, the Court has found, upon a comprehensive analysis of the issues, that the impugned Regulations are constitutionally valid, that the NTSA Notice of 14th May 2025 constitutes a lawful administrative directive issued in furtherance of existing statutory obligations and that the enforcement measures complained of are anchored in statute and have not been shown to have been exercised in an unlawful, arbitrary, or procedurally unfair manner. 130. In the absence of any established violation of constitutional rights or illegality in the impugned actions, the foundation upon which the reliefs sought rest necessarily collapses. The declarations of unconstitutionality are therefore declined, there being no basis upon which the Court can invalidate a lawful regulatory framework. The order of certiorari is similarly unavailable, as there is no impugned decision demonstrated to be tainted by illegality, irrationality, or procedural impropriety. The prayers for injunctive relief must equally fail, no unlawful conduct having been established to warrant restraint. 131. The orders of mandamus sought cannot issue, as the Petitioner has not demonstrated the existence of a specific public duty that has been unlawfully refused or neglected. To the contrary, the material before the Court shows that the Respondents have acted within the bounds of their statutory mandate. In the same vein, the claim for compensation is unsustainable in the absence of proof of violation of rights and resultant injury. 132. Accordingly, the Court finds that the Petitioner has not satisfied the threshold for the grant of any of the reliefs sought. Conclusion 133. For the reasons set out above, the Court concludes that the Petition is without merit. The impugned Regulations were lawfully enacted following public participation and parliamentary scrutiny. The limitations they impose on constitutional rights are reasonable and justifiable under Article 24 for the compelling public interest of road safety. The NTSA notice of 14th May 2025 is a lawful administrative reminder of existing legal obligations and does not violate the right to fair administrative action or any legitimate expectation. The Petitioner has failed to establish any violation of his constitutional rights or the rights of the class he purports to represent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6826/eng@2026-04-29 21

page 21 of 22

134. This is a public interest petition, and the Petitioner brought it in good faith to vindicate what he perceived as an infringement of artistic and cultural rights. 135. Accordingly, the Court makes the following final orders: a. The Petitioner’s Amended Petition dated 16th June 2025 is dismissed. b. Each party shall bear its own costs. Orders accordingly. File closed accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 29TH DAY OF APRIL 2026. BAHATI MWAMUYE JUDGE In the presence of: Counsel for the Petitioner – Mr. Outa Counsel for the 1st & 2nd Respondents – Ms. Kihamba Counsel for the 3rd Respondent, 4th, & 5th Respondents – Ms. Khadija Taib h/b Mr. Weche Counsel for the 6th Respondent -Ms. Khadambi Court Assistant – Mr. Sanja https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6826/eng@2026-04-29 22

page 22 of 22