Kenya Power & Lighting Company Limited v County Government of Nairobi & Attorney General [2017] KEHC 2559 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL & HUMAN RIGHTS DIVISION

PETITION   NO 91 OF 2017

In the matter of Articles 2 (2), 6, 10, 19, 20, 22, 23, 165 (3) (b), 189, 209 (3) (5) and The Fourth Schedule of The Constitution of Kenya, 2010

and

In the matter of alleged contravention of  Rights and Fundamental Freedoms under Articles 27, 29 (a), 40, 46 and 47 of The Constitution of Kenya, 2010

and

In the matter of The Energy Act, 2006

and

In the matter of The Local Government Act, 2012

and

The County Government Act, 2012

and

In the matter of The Fair Administrative Action Act, 2015

and

In the matter of  the decision by the County Government of Nairobi City to demand Way leaves and other payments from the Kenya Power & Lighting Company Limited

BETWEEN

THE KENYA POWER & LIGHTING COMPANY LIMITED...........PETITIONER

VERSUS

THE COUNTY GOVERNMENT OF NAIROBI....................1ST RESPONDENT

THE HON. THE ATTORNEY GENERAL.............................2ND RESPONDENT

JUDGMENT

The petitioners' case

1. The Kenya Power & Lighting Company Limited, (hereinafter referred to as the Petitioner) avers it brings this Petition under Article 22 (1) of the Constitution. It cites vindication of its Rights as well as those of its customers premised on alleged threat  by the first Respondent and seeks the following orders:-

i. A declaration that Legal Notice No 8494 of 2001 of 14 December 2001 was ultra vires the provisions of section 148 of the Local Government ct-Repealed and therefore null and void.

ii. A declaration that the Petitioner is not liable to pay any charges to the first Respondent on account of poles or way leaves either as demanded or at all.

iii. A declaration that, if any sums are due to the first Respondent, on account of poles or way leave charges, they be borne exclusively by the National Government of Kenya.

iv. An order of injunction restraining the first Respondent from demanding and or seeking to enforce in any manner howsoever, whether by itself, its servants and or agents, any  sums on account of poles and way leave charges.

v. Damages including exemplary damages for the violation of the petitioner's rights under Article 9 (a) and 40 of the constitution.

2. The first Respondents is the County Government of Nairobi established under Article 176 of the Constitution  as read with  schedule six to the Constitution. It is the successor to the City Council of Nairobi. The second Respondent is the Hon. Attorney General sued in his capacity as the principal legal representative of the government of Kenya.

3. The Petitioner avers that it operates most of the electricity  transmission and distribution system in the country and sells electricity to over 4.4 million  customers. It's key mandate  is to plan for sufficient electricity generation and transmission capacity to meet  demand; building and maintaining the power distribution and transmission network and retailing  of electricity to its customers. It avers that it is required to provide affordable, reliable, competitive and adequate power supply to its customers.

5. The Petitioner further avers that it has over 1800 kilometres nationwide connectivity  of fibre optic cable it makes available for lease to licensed telecommunication service providers and that the contracts with the licensed telecommunication service providers impose a near perfect reliability obligation on the part of the Petitioner, hence, any disruptions and any change of pricing  would adversely  affect these existing arrangements.

5. The Petitioner further avers that by Legal Notice No. 8494 of 2001 of 14^th December 2011, in purported exercise of its powers under Section 148 of the Local Government Act[1] (Repealed), the City Council of Nairobi, purported, with the approval of the Minister to revise "house rents, fees and charges including "Annual Rent for way leave space on road reserve" at the rates  enumerated in the Gazette Notice.

6. The Petitioner avers that prior to the said Gazette Notice, the first Respondent had neither demanded nor had the Petitioner ever paid any annual rent for way-leave space on road reserve and that it has never factored such payments in its' budget or the tariffs it charges to customers.

7. The Petitioner contends  that Section 148 of the Local Government Act[2] did not authorize such payment. Further, for the Petitioner to make such payments, it would require a substantial revision of the tariffs it charges its consumers. Consequently, it did not make any payment. This prompted the first Respondent to sue the Petitioner in High Court Civil Case No. 891 of 2006 seeking recovery of a sum of Ksh. 164.4 Million.

8. The petitioner also avers that a series of meeting were held involving the petitioner, the first Respondent, representatives of Ministries of Local Government and Energy under the aegis of the Permanent Secretary, finance the last  of such meetings was held on 9^th July 2007, in which it was resolved inter alia that the Central Government would take over the debt/arrears from 2002 to December 2007 with respect to the said levy, while giving priority to the arrears of 164 Million. The Petitioner also adds that it was resolved that Section 148 of the Local Government Act[3] would be re-looked by a technical team and that enforcement of the said section would be suspended with effect from 1^st July 2007. Also, all local authorities who had instituted cases against the Petitioner herein would withdraw.

9. Pursuant to the above, the Ministry of Local Government issued circular number 18/2007 to all local authorities stating that the government was making arrangements to pay the outstanding arrears owed by the Petitioner to local authorities in relation to levies  charged on poles/way leaves and asked  them to forward accumulated audited arrears for the period 2002 to 2007. Also Local Authorities  were asked to stop with immediate effect collecting levis for poles and way- leaves. As a consequence, the first Respondent withdrew the pending suit against the Petitioner.

10. Notwithstanding the foregoing, the first Respondent persisted in claiming charges for way-leaves levies from the Petitioner. The Petitioner avers that it is concerned about the impact  the imposition and payment would have on the consumer.

11. Following further meetings notably on 26^th January 2011, the Permanent Secretary, Treasury, wrote to all local authorities informing them that way-leave charges on key service providers that have impact on national development were to cease from July 2007 and that on the pending debt, the treasury  would find a way out. This was followed by a meeting between the Petitioner herein  and the first Respondent so as to verify the accuracy of the sums and  prepare a report.

12. However, on 12^th October 2015, the first Respondent  barricaded all entrants and exists to the Petitioner's head office at Stima Plaza, Parklands with garbage tracks for alleged failure to accede to a peremptory demand for Ksh. 605,636,600/= in respect of poll charges and way-leave charges from 2002. The barricade was withdrawn after intervention  by the first Respondents County Secretary and head of Public Service. The incidence caused embarrassment to the Petitioner.

13. By a letter dated 24^th November 2015, the first Respondent demanded payment of sum of Ksh. 605 million threatening dire consequences in default of payment. Again, on 16^th December 2015, the Principal Secretary, Ministry of Energy & Petroleum wrote to the first Respondent reminding it of the previous resolutions on the issue and exonerating the Petitioner from  any obligations to pay the said sum. However, notwithstanding the said letter, on 18^th February 2016, the first Respondent insisted on payment on or before February 2016.

14. The Petitioner cites violation of articles 2 (2), 10, 27, 29, 40, 46, 47 and breach of legitimate expectation and prays for the reliefs sought in the Petition.

First Respondents' Replying affidavit

15. In opposition to the Petition, the first Respondent filed the Replying affidavit of   Eng. S.K. Mburu, its Director of Roads. He averred that the first Respondent has the legal mandate of controlling streets and road reserves situated within its jurisdiction  and to maintain them for the benefit of the public and that Section 148 of the Local Government Act[4]-(Repealed)  gave power to the then local authorities to inter alia charge fees for any license or permit and to impose fees or charges for any service or facility provided by the then local authorities.

16. He added that pursuant to the said section and with the approval of the then Minister for Local Government, the first Respondent passed a resolution on fees and charges for the year 2002 effective from 1^st January 2002 which was duly  gazetted, i.e. Legal Notice No. 8494 of 2001 of 14^th December 2001. The Legal Notice gave the first Respondent authority to charge Annual Rent for way-leave  for space on road reserves a position that remained after the Local Government Act was repealed.

17. He further stated that the Petitioner is liable to pay to the first Respondent the sum of Ksh. 641,047,500/= and it has always paid such payments in the past and that previous discussions did not touch on the legality or otherwise of the said legal notice. He also averred that HCCC No 891 of 2006 was withdrawn by consent to pave way for amicable settlement but did not change the Petitioner's liability.

18. He also averred that a joint committee comprising of the Petitioner and the first Respondents predecessor  concluded that  the petitioner owed the first Respondent's predecessor Ksh. 426,147,900/= on account of way-leave charges while the first Respondent's predecessor owed the Petitioner Ksh. 280,402,638.79 on account of electricity bills. He also averred that way-leave charges is charged to other service providers as well who use way leave space on road reserves.

19.  He also avers that the impugned legal notice contains other fees and charges for licenses, permits services and facilities hence invalidating it will have dire legal consequences and financial  ramifications on the first Respondent which is contrary to public interest and denied violating any constitutional provisions.

Second Respondents' grounds of opposition

20. The second Respondent  filed grounds of opposition on 3^rd October 2016 stating that (i) the petition does not disclose any constitutional violations or breaches; (ii) that the petition does not disclose a case against the second Respondent.

Petitioner's Advocates Submissions

21. The Petitioners counsel  submitted  that the legal notice violates article 174 of the constitution, that it violates separation of powers,[5] that demanding the charges is a breach of legitimate expectation and breach of Fair Administrative Action.[6]Counsel insisted that the decision complained of will affect consumer rights. Counsel also submitted that Section 148 of the Local Government Act[7]-(Repealed) did not confer power to the Local Authority to charge way-leave fees.

First Respondents'  Advocates  submissions

22. Counsel for the first Respondent submitted that the legal notice is not utra vires the provisions of Section 148 of the Local Government Act[8]-(Repealed); that the said section mandated the first Respondent to impose rents, fees or charges in respect of any person or matter within its area of jurisdiction; that the first Respondent exercised its powers under the said section with the approval of the Minister[9] and that the first Respondent is mandated in law to control and care for all public streets and road reserves within its area of jurisdiction.

23.  Counsel also submitted that for legitimate expectation to arise, there must be an express, clear and unambiguous promise given by a public authority, the expectation  itself must be reasonable, and that the representation must be one which was competent and lawful for the decision maker to make and there cannot be legitimate expectation against clear provisions of the law or the constitution.[10]

Second Respondents'  Advocates  submissions

24. Second Respondents' counsel did not attend court but filed written submissions stating that the petition does not disclose violation of the Petitioner's constitutional Rights[11] nor does it set out the alleged violations[12]and that the only ground relied upon by the Petitioner is a meeting held on 6^th July 2007 which in counsels submissions does not warrant granting of the orders sought. He also submitted that the alleged violation of constitutional provisions has not been proved and urged the court to dismiss the petition.

Analysis of the facts, the law and authorities

25. It is settled law that Public bodies, no matter how well-intentioned, may only do what the law empowers them to do. That is the essence of the principle of legality, the bedrock of our constitutional dispensation, which is enshrined in our constitution. It follows that for the impugned legal notice to be allowed to stand, it must be demonstrated that the same is grounded on law. Put differently, does the Legal Notice offend the provisions to Section 148 of the Local Government Act-Repealed.?

26. As such, the Legal Notice must conform to the doctrine of legality. Put differently, if the Legal Notice has no foundation in law, then, it would amount to undermining the legality principle which, is inextricably linked to the Rule of Law.  Discussing the principle of legality, the South African court in the case of  AAA Investments (Pty) Ltd vs Micro Finance Regulatory Council and another stated as follows:-

“(t)he doctrine of legality which requires that power should have a source in law, is applicable whenever public power is exercised . . . . Public power . . . can be validly exercised only if it is clearly sourced in law"[13]

27. Courts are similarly constrained by the doctrine of legality, i.e to exercise only those powers bestowed upon them by the law.[14] The concomitant obligation to uphold the Rule of Law and, with it, the doctrine of legality, is self-evident. In this regard, the first Respondent is constrained by that doctrine to enforce the law by ensuring that its decisions including the impugned Legal Notice conform to the relevant provisions of the law.[15]

28. The first respondent has not only a statutory duty but also a moral duty to uphold the law and to ensure due compliance with the governing law. It would in general be wrong to whittle away the obligation of the Respondent as a public body to uphold the law. A lenient approach could be an open invitation to the first Respondent to act against its legal mandate.

29. Section 148 of the  Local Government Act[16]-(Repealed) provided as follows:-

148. (1) A local authority may—

 (a) charge fees for any licence or permit issued under this Act or any other written law or in respect of any person or matter, premises or trade, whom or which the local authority is empowered to control or license;

(b) impose fees or charges for any service or facility provided or goods or documents supplied by the local authority or any of its officers in pursuance of or in connexion with the discharge of any duty or power of the local authority or otherwise.

(2) All fees or charges imposed by a local authority shall be regulated by by-law, or if not regulated by by-law, may be imposed by resolution of the local authority with the consent of the Minister and such consent may be given either in respect of specified fees or charges or may be given so as to allow a specified local authority to impose fees or charges by resolution in respect of a specified power or a particular matter.

(3) Save where the contrary is expressly or by necessary implication in any written law provided, a local authority may authorise the remission in whole or in part of any fees due to it or charges imposed by it under this Act or any other written law.

30.  From the above provision, it is clear that  all fees and charges imposed by a local authority under the said act was  to be regulated by by-laws and if not regulated by by-law, then such charges could only be imposed by resolution of the local authority with the consent of the Minister for Local Government.  This position was up held by the Court of Appeal in Clerk, County Council Of Wajir & Another v Allabdulahi Ahemd And Kuso Dahir Ali Ex-parte Republic.[17]

Issues for determination

31. In light of the above provisions of the law, the principle of legality discussed above which requires the first Respondents' actions to conform with the law, the issue that falls for determination is whether Legal Notice in question offends Section 148 reproduced above.

32. My reading of the above section  is that City Council of Nairobi, the first Respondents predecessor was statutorily mandated to charge way-leave fees as provided for under the above section. The question that follows is whether or not the Legal Notice in question violates section 148 as alleged or any other provision of the law or the constitution.

33. Put differently, the question is whether, properly construed, the impugned Legal Notice  conforms to the above section and the constitution. The appropriate place to begin is with the jurisprudential principles that govern the task of statutory interpretation.

The relevant statutory interpretation principles

34. When the constitutionality of legislation, a by-law or even a Legal Notice which has the force of law is challenged, a court ought first to determine whether, through “the application of all legitimate interpretive aids,”[18] the impugned legislation is capable of being read in a manner that is constitutionally compliant or as in the present case whether it can be read in a manner that conforms to the relevant statute.

35. Our Constitution requires a purposive approach to statutory interpretation. The technique of paying attention to context in statutory construction is now required by the Constitution.[19] As pointed out above, the constitution introduces a mandatory requirement to construe every piece of legislation in a manner that promotes the ‘spirit, purport and objects of the Bill of Rights.’”

36. The purpose of a statute plays an important role in establishing a context that clarifies the scope and intended effect of a law.[20] The often quoted dissenting judgment of Schreiner JA eloquently articulates the importance of context in statutory interpretation:-

“Certainly no less important than the oft repeated statement that the words and expressions used in a statute must be interpreted according to their ordinary meaning is the statement that they must be interpreted in the light of their context. But it may be useful to stress two points in relation to the application of this principle. The first is that ‘the context’, as here used, is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be interpreted. Often of more importance is the matter of the statute, its apparent scope and purpose, and within limits, its background.”[21]

37. A contextual or purposive reading of a statute must of course remain faithful to the actual wording of the statute. When confronted with legislation which includes wording not capable of sustaining an interpretation that would render it constitutionally compliant, courts are required, to declare the legislation unconstitutional and invalid. As it stands, this exposition is generally accepted, but it must be said that context is everything in law, and obviously one needs to examine the particular statute and all the facts that gave rise to it.

38.  A contextual interpretation of a statute, therefore, must be sufficiently clear to accord with the rule of law. Mindful of the imperative to read legislation, by-laws or Legal Notices in conformity with the Constitution and the relevant statute, but only to do so when that reading would not unduly strain the legislation, by-laws or Legal Notices, or Regulations, I turn to an analysis of whether Legal Notice No. 8494 of 2001 of 14^th December 2011 violates Section 148 of the Local Government Act[22]-Repealed or any provision of the constitution.

39.  Mr. Amoko for the Petitioner submitted that the above Legal Notice is "unconstitutional" in that it violates article 174  of the Constitution. I must point out that there is no prayer in the Petition inviting the court to declare the said Legal Notice as unconstitutional. Clearly, the submission inviting this court to declare the said legal notice as unconstitutional is unsustainable on grounds that it is not prayed in the Petition nor is it pleaded.

40. Similarly,  the Petition contains several allegations of violations of constitutional provisions  such as violation of articles 2 (2), 27, 46, 29, 40, and 47 of the Constitution. Curiously, among the reliefs sought,  there is no prayer inviting the court to find or declare that the said provisions have been violated.

41. This brings into sharp focus the function of pleadings, an issue I have addressed in several of my previous decisions. The core issue here is to understand the function of  and purpose of good pleadings. In this regard, I recall the words of the Australian Court[23]where Vickery J said this of the principles of good pleading:-

"In a mathematical proof, elegance is the minimum number of steps to achieve the solution with greatest clarity. In dance or the martial arts, elegance is minimum motion with maximum effect. In filmmaking, elegance is a simple message with complex meaning. The most challenging games have the fewest rules, as do the most dynamic societies and organizations. An elegant solution is quite often a single tiny idea that changes everything.

… Elegance is the simplicity found on the far side of complexity.

While elegance in a pleading is not a precondition to its legitimacy, it is an aspiration which, if achieved, can only but advance the interests of justice. A poorly drawn pleading, on the other hand, which does not tell a coherent story in a well ordered structure, will fail to achieve the central purpose of the exercise, namely communication of the essence of case which is sought to be advanced.

Pleading should not be dismissed as a lost art. It has an important part to play in civil litigation conducted within the adversarial system. Crafting a good pleading calls for precision in drafting, diligence in the identification of the material facts marshalled in support of each allegation, an understanding of the legal principles which are necessary to formulate complete causes of action and the judgment and courage to shed what is unnecessary.

Although a primary function of a pleading is to tell the defending party what claim it has to meet, an equally important function is to inform the court or tribunal of fact precisely what issues are before it for determination.[24] (Emphasis supplied)

42. The function of a pleading in civil proceedings is to alert the other party to the case they need to meet (and hence satisfy basic requirements of procedural fairness) and further, to define the precise issues for determination so that the court may conduct a fair trial; The cardinal rule is that a pleading must state all the material facts to establish a reasonable cause of action (or defence). The expression “material facts” is not synonymous with providing all the circumstances. Material facts are only those relied on to establish the essential elements of the cause of action; a pleading should not be so prolix that the opposite party is unable to ascertain with precision the causes of action and the material facts that are alleged against it.

43. Prayer one of the Petition invites the court to declare that:- "Legal Notice No 8494 of 2001 of 14 December 2001 was ultra vires the provisions of section 148 of the Local Government ct-Repealed and therefore null and void."This warrants a close examination of the said section and the Legal Notice.

44. The Gazette Notice reads:- "IN EXERCISE of the powers conferred by Section 148 of the Local Government Act, the City Council of Nairobi has, with the approval of the Minister for Local Government, revised house rents, fees and charges, effective from 1^st January 2002."

45. The operative words in the Gazette Notice are:- "with the approval of the Minister for Local Government..."  At the risk of reciting the provisions of section 148 reproduced above, I also reproduce below the key words in the said section.

46. My understanding of the section is that a local authority may:- (a) charge fees for any licence or permit issued under the Act or any other written law or in respect of any person or matter, premises or trade, whom or which the local authority is empowered to control or license;  (b) impose fees or charges for any service or facility provided or goods or documents supplied by the local authority or any of its officers in pursuance of or in connexion with the discharge of any duty or power of the local authority or otherwise. (2) All fees or charges imposed by a local authority shall be regulated by by-law, or if not regulated by by-law, may be imposed by resolution of the local authority with the consent of the Minister and such consent may be given either in respect of specified fees or charges or may be given so as to allow a specified local authority to impose fees or charges by resolution in respect of a specified power or a particular matter.

47. It has not been shown that the approval of the Minister was not sought and granted. The first Respondent has not only a statutory duty but also a moral duty to uphold the law and to ensure  due compliance with the law and to provide services. Collection of revenue in a manner provided under the law to perform its functions is part of its legal mandate.  It would in general be wrong to whittle away the obligation of the first Respondent as a public body to uphold the law. A lenient approach could be an open invitation to the first Respondent to act against its legal mandate.

48. Section 148 confirms the mandate of the predecessor to the first Respondent to charge levies in accordance with the law or with the approval of the Minister.

49. The other crucial question which must be answered is what is the standard by which the validity of Legal Notice and conformity to Section 148 or the constitution  should be judged. In this regard such a question should be answered with reference to the standards of review laid down by courts when the validity of a statute is challenged which include two main standards:-    

a. The first is the “rationality” test. This is the standard that applies to all legislation under the rule of law;

b. The second, and more exacting standard, is that of “reasonableness” or “proportionality”, which applies when legislation limits a fundamental right in the Bill of Rights. Article 24 (1) of the Constitution provides that such a limitation is valid only if it is “reasonable and justifiable in an open and democratic society.”

50. It is important to mention that the Legal Notice is  "reasonably related" to a legitimate purpose, that is to enable the first Respondent fulfill its statutory mandate. In determining reasonableness, relevant factors include (a) whether there is a "valid, rational connection" between the regulation or the Legal Notice and a legitimate and public interest to justify it, which connection cannot be so remote as to render the regulation arbitrary or irrational; (b) whether there are alternative means of exercising the asserted right that remain open to the affected person.

51. It is equally important that the court should also as far as possible, avoid any decision or interpretation which would bring about the result of rendering the system unworkable in practice  or create a situation that will go against clear provisions of the law governing the subject in issue. In this case, the law and the  Legal Notice in question  are designed at maintaining and ensuring service delivery and performance of the functions of the first Respondent.

52. It is my view that the impugned Legal Notice has not been shown to be unreasonable and or violating section 148 of the Act as alleged. It is logically related to the legitimate purpose of collecting revenue as provided under the law. It has not been shown that the Ministerial approval was not sought and obtained. Moreover, the Legal Notice  does not deprive the petitioners the opportunity to challenge the amounts in court if not properly tabulated or even to question the rates if unreasonable.

53. The alleged failure by the first Respondent to abide by the resolutions arrived at in the various meetings which it states resolves the matters in issue does not in my view render the Legal Notice invalid. Failure to abide by the resolutions is in my view a civil dispute and can be dealt with by way of a civil suit either seeking to enforce the settlement (if any)  or such other relief that may be appropriate but not by way of a constitutional Petition.

54. Also, whether  or not the settlements arrived at are binding is a matter that can be determined in a civil suit.

55. It is also important to address the question whether this petition raises constitutional issues. It is convenient to state that a constitutional question  is an issue whose resolution requires the interpretation of a constitution rather than that of a statute.[25] This court ought to discourage invocation of the constitutional process where there exists parallel or alternative statutory remedies. In John Harun Mwau vs Peter Gastrol & 3 Others[26] the court made the following observation:-

"Courts will not normally consider a constitutional question unless the existence of a remedy is dependent on it…….It is an established practice  that where a matter can be disposed of without recourse to the constitution, the constitution should not be involved at all."

56. In cases of violation of fundamental rights, the Court has to examine as to what factors the court should weigh while determining the constitutionality of the actions complained of. The court should examine the case in light of the provisions of the Constitution.

57. When determining whether an argument raises a constitutional issue, the court is not strictly concerned with whether the argument will be successful. The question is whether the argument forces us to consider constitutional rights or values.[27]

58. The question of what constitutes a constitutional question was ably illuminated in the South African case of Fredericks & Others vs MEC for Education and Training, Eastern Cape & Others[28] in which Justice O’Regan recalling the Constitutional Court’s observations in S vs. Boesak[29] notes that:-

“The Constitution provides no definition of “constitutional matter.” What is a constitutional matter must be gleaned from a reading of the Constitution itself: If regard is had to the provisions of ........the Constitution, constitutional matters must include disputes as to whether any law or conduct is inconsistent with the Constitution, as well as issues concerning the status, powers and functions of an organ of State...................., the interpretation, application and upholding of the Constitution are also constitutional matters. So too,.............., is the question whether the interpretation of any legislation or the development of the common law promotes the spirit, purport and objects of the Bill of Rights. If regard is had to this and to the wide scope and application of the Bill of Rights, and to the other detailed provisions of the Constitution, such as the allocation of powers to various legislatures and structures of government, the jurisdiction vested in the Constitutional Court to determine constitutional matters and issues connected with decisions on constitutional matters is clearly an extensive jurisdiction.”[30]

59. Put simply, the following are examples of constituting constitutional issues; The constitutionality of provisions within an Act of Parliament; the interpretation of legislation, and the application of legislation.[31] At the heart of the cases within each type or classification is an analysis of the same thing – the constitutionally entrenched  fundamental rights. Therefore the classifications are not discreet and there are inevitably overlaps, but the classifications are nonetheless useful theoretical tools to organise an analysis of the nature of constitutional matters arising from the cases before the Court.

60. In my view, the material before me clearly reveal a civil dispute, arising from a dispute whether the way-leave charges are lawfully payable by the Petitioner, whether they were lawfully demanded, whether the resolutions referred to are binding and enforceable.  All these are disclose a civil dispute.

61. It is my conclusion that the petitioner  has failed to demonstrate that the impugned Legal Notice violates Section  148 of the Act or any provisions of the Constitution.

62. As pointed out earlier, the Petition cites alleged violations of constitutional provisions, but there is no prayer to that effect in the Petition. Key among the alleged infringements is alleged violation of the Right to legitimate expectation. Addressing the subject of legitimate expectation, H. W. R. Wade & C. F. Forsyth[32]  at pages 449 to 450, thus:-

“It is not enough that an expectation should exist; it must in addition be legitimate….First of all, for an expectation to be legitimate it must be founded upon a promise or practice by the public authority that is said to be bound to fulfil the expectation….. Second, clear statutory words, of course, override an expectation howsoever founded….. Third, the notification of a relevant change of policy destroys any expectation founded upon the earlier policy…."

“An expectation whose fulfillment requires that a decision-maker should make an unlawful decision, cannot be a legitimate expectation.  It is inherent in many of the decisions, and express in several, that the expectation must be within the powers of the decision-maker before any question of protection arises.  There are good reasons why this should be so: an official cannot be allowed in effect to rewrite Acts of Parliament by making promises of unlawful conduct or adopting an unlawful practice.” (Emphasis added)

63. It follows that statutory words override an expectation howsoever founded. Thus, a decision maker cannot be required to act against clear provisions of a statute just to meet ones expectations otherwise his decision would be out rightly illegal and a violation of the principle of legality, a key principle in Rule of Law. There cannot be legitimate expectation against the clear provisions of a statute.  The relevant provisions of the law cited earlier clearly show that the first Respondents decision is grounded on the relevant statutory provisions, in particular a Legal Notice issued inconformity with section 148 discussed above.

64. The Petitioner also prays for an order that "if any sums are due to the first Respondent on account of poles or way-leave charges, they be borne exclusively by the National Government." Such a claim cannot be determined in these proceedings. It would, in my view require a suit involving all the parties who were involved in the meetings relied upon. Alternatively, within the framework of the  function of pleadings discussed earlier, it ought to have been brought out in a clear manner so that the Respondents would from the very beginning be aware of the case confronting them. I find no basis to condemn the National Government pay such sums from the material before me.

65. Similarly, the injunction sought cannot be granted. First, the tests for granting injunctions have not been satisfied. It is trite law that an injunction cannot be issued to defeat clear provisions of a statute. Also, there is a prayer for damages. To my mind these have not been pleaded in the body of the Petition nor has it been established. There is no material or basis for the court to award damages.

66. In view of my conclusions herein above, I  decline to grant the reliefs sought in this petition. Accordingly, I dismiss the petition with no orders as to costs.

Orders accordingly.

Dated  at Nairobi  this      3^rd      day of       November     2017

John M. Mativo

Judge