NAIROBI November 11 – The High Court on Monday declined to commit Transport Minister Chirau Ali Mwakwere to civil jail for contempt in a case filed against him by a group of transporters.,
High Court judges Joseph Nyamu, Ruth Sitati and Mohammed Warsame said Multiple Hauliers Limited and 24 other transporting companies, who sued the Minister over new regulations on axle load capacity, failed to serve him personally with court orders.
“We hold that process service was ineffective because we cannot interpret the affidavits filed. We are therefore constrained to say that there was no proper service to the Minister,” the judges ruled.
The transporters had obtained court orders blocking the Minister from implementing laws governing axle load capacities, to allow them time to comply.
Through their Lawyer Peter Kaluma, the transporters had wanted the court to condemn the Mr Mwakwere to a civil jail, claiming that he had disregarded the court order and went on to implement the new regulations.
Earlier last month, High Court Judge Roselyne Wendoh temporarily suspended the implementation of the new transport rules that bar use of vehicles with more than three-group axles until the case is heard and determined.
Justice Wendoh also allowed the transport companies to file a contempt suit against Mr Mwakwere for ignoring the court’s order, pending the hearing and determination of the case.
The transporters argued that despite the injunctive order issued in July, Mr Mwakwere went ahead to gazette rules outlawing use of vehicles and trailers exceeding a six axle-load capacity and further undermined the case by failing to file necessary papers and submissions.
It was alleged that the Minister deliberately attempted to circumvent the orders by publishing the rules on September 24 which took effect a week later.
Meanwhile, the fate of former councillors axed by Local Government Minister Musalia Mudavadi in August will be sealed on December 10, when the High Court rules on the matter.
Justice Joseph Nyamu is expected to determine whether a test case by Paul Mugethi Joel a former councillor from Maragua County Council is valid. (The outcome of the case will determine the fate of the other councillors).
Mr Mugethi’s lawyer, Paul Mwangi on Tuesday submitted before the judge that Mr Mudavadi erred by de-gazetting the councillors without notifying them of his intended action.
Mr Mwangi argued that the method of notification adopted by the Minister was un-procedural because it went against the provisions of Local Government Act, which requires prior written communication.
He also claimed that the Local Government Minister violated the rules of natural justice because he never accorded the councillors a chance to be heard before terminating their services.
Mr Mugethi has also sought leave to file contempt proceedings against Mr Mudavadi over the new list of nominated councillors claiming the Minister had neglected a court order issued in April, which barred publication of any new list of nominated councillors.
Mr Mugethi claims Mudavadi replaced him with Nancy Kamande in a blatant disregard to the court and termed the minister’s move as ‘mischievous and purporting to circumvent the court orders’.
The State is however opposed to the case saying the Minister acted rightly and accuses the councillors of challenging powers rightly conferred upon the Minister.
“The applicants were fully aware that their nomination was in breach of the law and therefore illegal ab initio (from the beginning),” argued Omondi Opundo, representing the State.
Mr Opundo maintained that the decision was a remedial measure to rectify an illegality.
Electoral Commission of Kenya lawyer, Jemimah Keli supported Mr Opundo and said the applicant’s nomination was un-procedural.