REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI

MISCELLANEOUS CIVIL APPLICATION NO. OF 2004

IN THE MATTER OF ORDER 53 RULE 1 OF THE CIVIL PROCEDURE ACT

AND
IN THE MATTER OF THE TRANSPORT LICENSING ACT CAP 404
AND
IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL
REVIEW

IMPERIAL TRAVELS LIMITED ....................................................... APPLICANT

VERSUS

THE TRANSPORT LICENSING BOARD ...............…………………... RESPONDENT

SUPPORTING AFFIDAVIT

I, SALEH HANNAN of Post Office Box Number 30527 Nairobi in the Republic of Kenya make
oath and say:-

THAT I am the Managing Director of the above-named applicant with requisite authority,
seeking the leave of this Honourable Court to apply for judicial review on the grounds set forth
in the notice of application for such leave dated the 13th day of October 2004. (Annexed hereto
and marked “SH 1” is a true copy of the company’s Certificate of Incorporation.)

THAT the company owns an Isuzu bus Registration number KAR 812 E that is used to ferry
fare-paying passengers between Nairobi and Mombasa. (Annexed hereto and marked “SH
2” is a copy of the logbook.

THAT the company recently procured and obtained a valid TLB licence after having complied
with all requirements of the law after a vehicle inspection report was issued on 11-08-04
indicating that the said motor vehicle complied with all relevant requirements and was valid
for licensing. (Annexed hereto and marked “SH 3” is a true copy of the Vehicle Inspection
Report.)

THAT sometime on 22-09-04 traffic police officers stopped the said bus along the Nairobi –
Mombasa road at Athi River near Daystar University just before the Machakos turn off and
purported to carry out an inspection of the said motor vehicle.

THAT in carrying out their said inspection, a traffic police officer simply drove the bus downhill
and then declared that it had exceeded the speed limit set by law thereby alleging that the
speed governor had been tampered with.

THAT the said police officers did not even bother to look and scientifically inspect the speed
governor, which is in essence an electronic gadget but appeared to crudely rely on the laws
of gravity and velocity to make up their minds in the absence of any electronic testing device.

THAT the police officers then decided to impound the said vehicle at the roadside despite
protestations that the speed governor had not been tampered with and that they were free
to carry out checks in a suitably equipped garage if they wished.

THAT the police officers declined to follow up the matter further, and then proceeded to issue
a Certificate of Examination and Test of Vehicle which indicated that the vehicle was not valid
for licensing yet did not indicate the actual reason why, merely stating that the vehicle “does
not comply with legal notice 161”. (Annexed hereto and marked “SH 4” is a true copy of the
said certificate.)

THAT strangely enough, we conducted another inspection on the said motor vehicle on 28-
09-04 and once again the vehicle was found to comply with all relevant laws and no defects
were found on it. (Annexed hereto and marked “SH 5” is a true copy of the Vehicle Inspection
Report.)

THAT on 08-10-04 police at a traffic check along the Mombasa stopped the said vehicle –
Nairobi highway near Sultan Hamud and the driver was ordered to disembark all passengers
and refund the fares paid, and the vehicle was then impounded purportedly on the orders of
the Transport Licensing Board who had apparently suspended its licence.

THAT we had not been notified of any suspension of the said vehicle, neither had we been
given the reasons thereof, so it came as a total shock to us especially given the fact that with
it being a commercial vehicle, we cannot afford to have it out of business for any period of
time.

THAT upon further queries from TLB, I was then given a letter dated 07-10-04 signed by the
Chairman of TLB indicating that the Board of Transport Licensing Board had sat in Mombasa
on 30-09-04 and had decided to suspend the said vehicle for a period of 6 months. (Annexed
hereto and marked “SH 6” is a true copy of the said letter.)

THAT I was totally shocked that no reasons were given for the suspension of the said vehicle,
and also by the fact that the TLB did not even bother to notify us of the sitting they had, and
neither did they give us a chance to sit in the meeting or to defend ourselves especially given
the fact that I believe our vehicle was not defective in any way.

THAT I am counselled by my advocates, which counsel I verily believe to be true, that we

ought to have been notified of the charge against the company with regard to the allegations
that the said vehicle was defective.

THAT I am further counselled by my advocates, which counsel I verily believe to be true, that
we ought to have been given a chance to sit at the hearing and to be given a reason as to
why TLB was suspending the said vehicle.

THAT I am also counselled by my advocates, which counsel I again verily believe to be true,
that we ought to have been given a chance to defend ourselves or to challenge the allegations
before the decision to suspend the vehicle was reached.

THAT the Transport Licensing Board has acted in an arbitrary manner that is likely to cause
irreparable damage to the company and job losses, as the company cannot sustain its
operations while the vehicle remains off the road, as there are loan repayments that must be
made monthly.

THAT what is deponed to hereinabove is true to the best of my knowledge, information and
belief sources and full particulars whereof have been disclosed.

THAT in the premises, I respectfully ask for leave to apply [move] by way of judicial review
for an order of certiorari and declaration as set out in the said notice of application.
SWORN at NAIROBI by the said )
SALEH HANNAN )
this day of 2004 ) ……………………………………
) DEPONENT
)
)
BEFORE ME )
)
)
)
COMMISSIONER FOR OATHS )

DRAWN & FILED BY:

ROMBO & COMPANY ADVOCATES
SHANKARDASS HOUSE, NEW WING, 1ST FLOOR,
MOI AVENUE,
P.O BOX 2704 – 00100,
NAIROBI.

REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI

MISCELLANEOUS CIVIL APPLICATION NO. OF 2004

IN THE MATTER OF ORDER 53 RULE 1 OF THE CIVIL PROCEDURE ACT

AND
IN THE MATTER OF THE TRANSPORT LICENSING ACT CAP 404
AND
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

REPUBLIC ..............................................................………............... APPLICANT

VERSUS

THE TRANSPORT LICENSING BOARD .......…………………….... RESPONDENT

EX-PARTE IMPERIAL TRAVELS LIMITED

NOTICE OF MOTION
Order 53 Rule 3 (1) of the Civil Procedure Rules, Section 8 and 9 of the Law Reform Act,
Cap 26, and all other enabling provisions of law

(Pursuant to leave granted by His Lordship Justice Mutitu on the 31st day of January 2003)

TAKE NOTICE that this court will be moved on the ………. day of ……………………… 1999 at
9.00 O` Clock in the forenoon or soon thereafter, when counsel for the applicant will be heard
on an application for: -
An order of certiorari to remove into the High Court for the purpose of its being quashed
[quashing] a judgement [order decision decree] made by {specify court, tribunal authority or
other person, body} whereby it was adjudged [ordered decided decreed] on the 16th day of
November 2000 that ....{set out accurately}.

An order of mandamus directed to ....{specify} to compel [require] the said Court [tribunal
etc.] to hear and determine according to law [to take any other steps {specify} required by
statute.

An order of prohibition prohibiting ...{specify court tribunal etc} from proceeding [further
proceeding] with the hearing and determination of .... {state precisely}.

An injunction restraining the {person, body authority} whether by himself his servants or
agents or howsoever otherwise from ....{state the acts or conduct}

[Further or in the alternative] an injunction ordering [requiring] the {person, body} forthwith
[by the 19th day of March 2001] [within a reasonable time] to do the following acts [perform
the following matters] ...{state precisely}.

A declaration that the judgement [order decree decision determination] of the ....{specify
court tribunal person authority etc} was and is invalid [ultra vires] and void and of no effect.

A declaration that the {person body authority} is in breach of his duty under ...{specify
statutory provision etc} in that he has failed to .....

[Further or in the alternative] damages arising from the matters herein and interest thereon.

An order for costs.

Such further and other relief be granted to the applicant as this court deems fit.

WHICH APPLICATION is supported by the grounds set out in the Statement attached
hereunder and in the annexed affidavit of JOE BLOGGS and on such further grounds as may
be adduced at the hearing hereof.

DATED at NAIROBI this ……….. day of ………………………. 1999.

ROMBO & COMPANY

ADVOCATES FOR THE APPLICANT

Note- “If any party served does not appear at the time and place above-mentioned
such order will be made and proceedings taken as the court may think just and
expedient.”

{NOTE that the statement and affidavit to be attached to the application are copies of the
ones in the application for Leave} - Order 53 rule 4 (1)