A Mombasa court has declined to certify as urgent a constitutional petition seeking to restrain Mombasa Cement Company Limited from placing commercial advertisements on perimeter walls around public institutions in the coastal region.
High Court judge Jairus Ngaah, in his ruling, directed that the application be served for directions on November 19.
“In the meantime, the respondents and the interested party are directed to file and serve their response within seven days of the date of service of the application," Justice Ngaah ruled.
The petition—filed by Bismillah Centre Self Help Group and activist Fredrick Odhiambo Ojiro—names Mombasa Cement as the first respondent, the county government of Mombasa as the second respondent and the Competition Authority of Kenya as an interested party.
The suit lists 28 public institutions where the cement manufacturer has financed or erected perimeter barriers, including Mbaraki Girls Comprehensive School, Makupa Police Station, Ziwani School for the Deaf, Coast General Teaching and Referral Hospital and Star of the Sea High School.
They allege the walls "mischievously bear pictures, products names, depictions and other commercial branding of products associated with the first respondent including cement, steel and iron-sheet products."
“Access to conspicuous advertising space on public institutional premises by the first respondent have been conferred selectively and without a transparent lawful framework, thereby creating a potentially unjustified promotional advantage over other manufacturers who must procure advertising space on ordinary commercial terms,” the petitioners argue.
They further state corporate social responsibility, while not unlawful in itself, has been used to convert public institutional walls into private advertising media.
“Since public advertising opportunities have been conferred selectively, without rational justification or transparent criteria, such arrangement is a resulting promotional benefit to the first respondent and violates the constitutional requirements of fairness, equity, integrity and accountability.”
They also highlight concerns over lost municipal revenues, saying there are no records to show the county government authorised the displays, received payment or granted Mombasa Cement exemptions.
“Legally chargeable advertising revenue has not been assessed or collected, in violation of the constitutional principles of accountability, prudent public financial management and lawful revenue administration."
Requests submitted under Article 35 seeking county records on advertising approvals and fee waivers reportedly went unanswered.
The petitioners are seeking several remedies, including an order to compel the county government to inspect and inventory all branded structures, assess unpaid advertising fees and disclose all relevant records and waivers.
"A declaration that product-specific branding on walls of public schools and police stations is subject to applicable county advertising controls where it meets the relevant statutory definition, notwithstanding its association with corporate social responsibility."
They are also seeking prohibitory injunctions to restrain Mombasa Cement from placing or maintaining commercial advertisements on public premises without proper statutory approvals and fee payments, alongside mandatory injunctions requiring the removal of any advertisements determined by the court to be unlawful.
Neither Mombasa Cement nor the county government of Mombasa had filed their formal responses or substantive legal arguments.
Justice Ngaah declined to certify the application as urgent.
Instead, the court directed that the respondents and the Competition Authority of Kenya must file and serve their respective responses within seven days of being served with the application, ahead of the next court directions scheduled for November 19.
