Thuo v Kenya National Highways Authority & 3 others [2025] KEHC 48 (KLR) | Right To Property | Esheria

Thuo v Kenya National Highways Authority & 3 others [2025] KEHC 48 (KLR)

Full Case Text

Thuo v Kenya National Highways Authority & 3 others (Constitutional Petition E251 of 2022) [2025] KEHC 48 (KLR) (Constitutional and Human Rights) (15 January 2025) (Judgment)

Neutral citation: [2025] KEHC 48 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Constitutional Petition E251 of 2022

LN Mugambi, J

January 15, 2025

Between

John Waithaka Thuo

Petitioner

and

Kenya National Highways Authority

1st Respondent

National Transport& Safety Authority

2nd Respondent

Kenya Bureau Of Standards (Kebs)

3rd Respondent

Master Fabricators Limited

4th Respondent

Judgment

Introduction 1. The Petition dated 27th May, 2022 was later amended on the 10th of January, 2023. The Petitioner protests that the 1st Respondent clampdown his public service vehicles allegedly because of exceeding the recommended tare weights it amounts to violation of the constitutional rights under Article 40, 47, 48 and 50 (2) of the Constitution. He thus seeks the following reliefs:a.A declaration that the rights and fundamental freedoms of the Petitioner as enshrined under Articles 40, 47, 48 and 50(2) of the Constitution of Kenya, 2010 were infringed and/or violated by the actions of the Respondent;b.A declaration that the detention and subsequent impoundment of the Petitioner’s motor vehicles are illegal, unlawful and/or unconstitutional;c.A declaration that the Petitioner is not in contravention with section 56 of the Traffic Act, CAP 403 Laws of Kenya as they were inspected by the 2nd Respondent and given a green light to begin operations;d.An order of mandamus in judicial review directed at the Respondents to have the said motor vehicle logbooks amended as per the ascertained weights;e.An order of permanent injunction directed to the 1st Respondent, its agents and employees from subjecting and charging the Petitioner, his agents and or employees under the East African Community Vehicle Load Control Act, 2016;f.The costs of the petition.

Petitioner’s Case 2. The Petitioner contends that he is the registered owner of motor vehicles registration KBN400F, KBM798B, KBR627B, KCB460R, KCJ132U, KCF195A, KCJ131U, KCJ134U, KCL060A, KCL065A, KCL068A, KBV671E, KCF194A, KCF196A, KCT137A, KBQ111C, KBS452T, KBT339M, KCB041Y, KCB042Y, KCT138A, KCY004A and KCY242A (the Suit Motor vehicles) which are a class 2 axle category maximum load of 18,000kgs with a ferrying capacity of 49 to 67 passengers.

3. He alleges that the 1st Respondent conducted a crackdown and clamped his said motor vehicles allegedly for being overloaded, a claim he denies.

4. The Petitioner states in view of the above accusation, he caused the vehicles to be subjected to the 2nd Respondent’s independent weighing at the National Cereals and Produce Board which recorded various weights as reflected in the table at paragraph 6 of the amended Petition. That it confirmed that the motor vehicles were compliant while operating on the road and were thus given the green light to carry goods and passengers and have never exceed the recommended tare weight.

5. The Petitioner alleges that there was an oversight during the inspection of the suit vehicles by the 2nd and 3rd Respondents leading to wrong entries in the log books on the tare weight of the said vehicles and he was never given an opportunity to defend the overload claims. He terms the 1st Respondents’ action of detaining the motor vehicles at different weighbridges as unconstitutional, capricious, pre-determined and injudicious and actuated by malice therefore violate the rules of natural justice.

6. He alleges the following actions and omissions on the part of the Respondents:a.That the Respondents discriminated against him contrary to Article 27 of the Constitution as well as section 17, 20, and 22(2) of the East African Community Vehicle Land Control Act, 2016;b.That the Respondent has violated his rights and fundamental freedoms as enshrined under Articles 40, 47, 48 and 50(2) of the Constitution of Kenya;c.That the Respondents have violated his right to fair administrative action as well as the right to be afforded reasons for an administrative action contrary to sections 8 and 9 of the Fair Administrative Actions Act.

7. The amended Petition is supported by the Petitioner’s affidavit deponed on the 10th of January, 2023 and a supplementary affidavit deponed on the 8th of March, 2023.

1st Respondent’s Response 8. The 1st Respondent’s replying affidavit was deponed by Eng. Michael Ngala Achieng on the 29th of June, 2022. He also deponed a further affidavit 20th February, 2023. With regards to the Petitioner’s claims, he depones that the Petitioner is aware that the buses carry both passengers and heavy loads and that since the weighing commenced, many of his buses have been found to be overloaded. He states that it is the 1st Respondent’s duty to protect road infrastructure and that the Petitioner endangers the lives of passengers by operating overloaded vehicles which destabilize a vehicle stability and movement leading to accidents. That it is the 1st Respondent’s mandate to ensure compliance and take remedial measures on overloaded vehicles considering that the Twelfth schedule of the Traffic Act, provides for weights and dimensions of vehicles, where at Rule 2(2) Legal Notice No. 93, the Traffic Amendment Rules, 2013 provides that the maximum weight which may be transmitted to the road in the case of a vehicle fitted with pneumatic tyres, whether laden or unladen shall not exceed 18000kgs.

9. He further swore that the Petitioner lacks the mandate to weigh and determine the tare weight of the suit motor vehicles. At paragraphs 7, 8 and 9 of the further affidavit, he explained that the vehicles have been weighed on diverse dates at different weigh bridges across the country and the weighbridge tickets generated confirmed that the suit vehicles were overweight. He faults the Petitioner for failing to annex the inspection report from the National Cereals and Produce Board as well as the individual logbooks of the suit motor vehicles. He requested for the proof that the said motor vehicles had been detained at various weigh bridges without justifiable cause as alleged by the Petitioner.

10. The 1st Respondent concluded by deponing that the Petitioner had failed to point out with precision how his fundamental rights as enshrined under Articles 40, 47, 48 and 50(2) of the Constitution as well as those under the East African Community Vehicle Load Control Act, 2016 have been infringed. The Respondent prayed for the dismissal of the Petition for being frivolous, vexatious and defective and for the following orders:a.A declaration that the differences on the recordings of the tare weight of a vehicle on a motor vehicle logbook is not within the mandate of the Kenya National Highways Authority and that the Authority is only mandated to weigh vehicles and determine their compliance with the axle load limits within the meaning of the Traffic Act and EACVLC Act.

The 2nd Respondent’s Response 11. James Musausi deponed the 2nd Respondent’s affidavit dated 18th April, 2023.

12. He stated that in line with the 2nd Respondent’s mandate, the Authority registered the Petitioner’s motor vehicles during first time registration and relied on the documents submitted by the Kenya Revenue Authority which date and information was verified. That under the Traffic Act, the required tare weight of the class of the Petitioner’s is 11000 and the load capacity is 5000 to arrive at the required total full body weight of 16000kgs. That the suit motor vehicles were reweighed and all of them exceed the required tare weight as provided under the Traffic Act is attributable to the Petitioner modifying its vehicles over a period of time and failing to submit the same for re-inspection.

13. The 2nd Respondent discredits the Petitioner’s assertions that there was a discrepancy or omission on the capture of the correct tare weight and load capacity of the subject motor vehicles during the 1st registration. That although the petitioner is seeking this Court’s protection, he should have complied with clause 3. 3 of the Standard KS 15;15 2019 that requires all vehicles to be re-inspected once modification has been done.

3rd Respondent’s Response 14. Samuel Okello deponed the affidavit dated 16th February, 2023 on behalf of the 3rd Respondent. He deponed that the 3rd Respondent’s mandate under section 4 of the Standards Act, CAP 496 is to promote standardization in the industry and in the context of this petition, the 3rd Respondent has set a standard KS 372:2019 to ensure the manufacture of quality buses and to this extent the Respondent has signed a scheme of supervision and control with the 4th Respondent based on the set standard and the manufacturers’ respective manuals through which the 3rd Respondent continuously monitors the 4th Respondent to ensure compliance. That Standard KS 1515:2029 whose clauses are applied alongside clause 8. 2 of Standard KS 372:2019 are utilised by the 2nd Respondent in conducting inspection of road vehicles upon completion of manufacturing and prior to registration while clause 3. 3 of the standard 1515:2019 applies in re-inspection by the 2nd Respondent upon completion of modifications.

15. The 3rd Respondent deponed further that it does not conduct inspection of locally fabricated motor vehicles because its mandate with regards to this is limited to establishing the industry standard for inspection. That standard clause 4. 5.1 of the standard KS 1515:2019 is applicable to weighing procedures while clause 4. 5.2 of this standard governs the equipment used in inspection centres.

16. That the Petitioner has not demonstrated any fault on the 3rd Respondent’s part because its standards have not been challenged in the petition and neither has the Respondent violated any of the Petitioner’s rights. The Respondent concluded by deponing that the Petition has not disclosed any cause of action against the 3rd Respondent and the said Respondent should be struck out from the Petition with costs.

4th Respondent’s Response 17. On its part, Bobby Virdee deponed the affidavit dated 11th April, 2023 on behalf of the 4th Respondent. He confirmed that the Petitioner approached the 4th Respondent on diverse dates to fabricate his motor vehicles and that they applied the standards supplied by the 3rd Respondent and afterwards released the said vehicles for inspection by other authorities. The 4th Respondent deponed that the motor vehicles have no additions or subtractions on the Petitioner’s motor vehicles and therefore no proof that the said Respondent had violated the Petitioner’s rights.

Submissions 18. The parties consented to canvassing the Petition by way of written submissions.

19. The Petitioner’s submissions are dated 29th March, 2023. He submitted on the following issues:a.Whether the rights and fundamental freedoms of the Petitioner enshrined under Articles 40, 47, 48 and 50(2) of the Constitution were infringed and/or violated by the Respondents’ actions;b.Whether the detention and subsequent impoundment of the Petitioner’s motor vehicles were illegal, unlawful and unconstitutional;c.Whether the Petitioner is in contravention of section 56 of the Traffic Act, CAP 43 Laws of Kenya as they were inspected by the 2nd Respondent and given a green light to begin operations pursuant to the said section;d.Whether an order of mandamus in judicial review should be directed at the Respondents to have the said motor vehicles log books amended as per the ascertained rights.

20. On the first issue, the Petitioner relying on the case of Anarita Karimi Njeru Vs. Republic Misc Crim App No. 4 Of 1979 and submitted that his right he had specifically pleaded and identified the rights that were violated in that being that his right to property has been violated and or infringed by the Respondents by the decision to detain and or impound the suit motor vehicles.

21. That the Respondents’ reliance on the East African Community Vehicle Load Control Act, 2016 is to arbitrarily deprive the Petitioner of his property which is inconsistent with the provisions of Article 40. He submitted further that the Respondents have infringed on his rights to a fair administrative action under Article 47 as expounded under section 4(3) of the Fair Administrative Actions Act and Article 50(2) of the Constitution.

22. He further submitted that the 1st Respondent acted irrationally and in utter disregard of the principles of natural justice and declined to give him an opportunity to be heard before the impugned decision was made. He relied on the cases of Pashito Holdings & Another Vs. Ndungu & 2 others (1197) EKLR and Onyango Oloo Vs. Attorney General (1986-1989) EA 456 and urged this Court to quash the Respondent’s decision.

23. That there was an oversight in the inspection carried out by the 2nd and 3rd Respondents leading to wrong entries in the log books regarding the tare weight and the load capacity of the motor vehicles. That the failure to give him an opportunity to defend the allegations is proof that the Respondents acted ultra vires and with impunity. He relied on the case of Joram Nyaga Mutegi Vs. Kenya National Highway Authority (2017) eKLR.

24. On his second issue, the Petitioner submitted that the 1st Respondent declared a crackdown and clamped all his suit motor vehicles despite the fact that the vehicles were not overloaded. He stated further that when this Court ordered that the suit motor vehicles be reweighed; from the results of reweighing it is evident that the vehicles were never weighed to ascertain their correct measures. That there was an oversight during the inspection by the 2nd and 3rd Respondents leading to the wrong entries in the log book regarding the tare weights and the load capacity of the motor vehicles which actions were not in conformity with Articles 47 of the Constitution and section 4(3) of the Fair Administrative Action Act, 2015.

25. On his third issue, the Petitioner submitted that in accordance to Section 56 of CAP 403 the suit motor vehicles were compliant with the said section and were even given a greenlight to begin operations.

26. On whether an order of mandamus should be issued, he relied on the case of Republic Vs. The Commissioner of Lands & Another Ex Parte Kithinji Murugu Magere Nai App No. 395 of 2012 and submitted that the order of mandamus is to compel the Respondents to amend the entries in the log books as per the ascertained weights. He urged this Court to find that he had demonstrated that his rights have been infringed one and issue the prayers in the petition.

27. The 1st Respondent’s submissions on the other hand are dated 24th March, 2023 and submitted on the following issues for determination:a.Whether the Petitioner’s fundamental rights and freedoms as enshrined under the Constitution have been infringed as alleged;b.Whether the 1st Respondent acted within the law in apprehending the suit motor vehicles;c.Whether the Petitioner is entitled to the orders sought.

28. On the first issue, the 1st Respondent relied on the MUMO MATEMU case (supra) and submitted that although the Constitution that entitled the Petitioner to rights, the same must be enumerated and the claim pleaded to demonstrate whatever violations that there were and they particularised in a precise manner. The 1st Respondent faulted the Petitioner for failing to detail how the Authority violated his rights under Articles 40, 47 and 50(2) of the Constitution since he has admitted that the suit motor vehicles were weighed and the extent of their overload determined in compliance with the law.

29. The Respondent submitted that the motor vehicles were apprehended pursuant to the East African Community Vehicle Load Control ACT, 2016 which does not require the offender overloading to be charged in Court but only requires them to offload the excess weight and to redistribute the weight. That the Act further decriminalises overloading and a party need not be charged for the same.

30. On the second issue, the 1st Respondent submitted that there are set industry standards that have been established to monitor and ensure compliance to the law upon fabrication of the vehicles. That the Petitioner did not adduce any evidence to demonstrate the wrong entries entered in the motor vehicle log books as alleged and neither did he annex copies of the log books as proof. He placed reliance on section 55, 56 and 58 of the Traffic Act and submitted that the Petitioner has admitted that the suit motor vehicles are fitted with two axles and are permitted to carry a gross weight of 18,000kgs. They relied on the case of Kenya Transport Association & 3 Others Vs. Attorney General & Another (2012) eKLR and submitted that the Petitioner has failed to demonstrate that the suit motor vehicles having been weighed were within the permitted gross vehicle weight. That to this end that the apprehension of the suit motor vehicle was undertaken in compliance with the 1st Respondent’s statutory duties which duties which did not in any way amount to a violation of the Petitioner’s human rights and fundamental freedoms as protected the Constitution.

31. On its last issue, the 1st Respondent submitted that the Petitioner has failed to demonstrate that the Authority acted in breach of his human rights and fundamental freedoms in apprehending the suit motor vehicles. That it is the Authority’s mandate to ensuring that Kenyans enjoy quality national trunk roads and that it weighed the suit motor vehicles in accordance with the law. The Respondent prayed that the order of mandamus be declined as well because the East African Community Vehicle Load Control Act, 2016 is applicable and enforceable within the East African community and all motor vehicles within the community are subject to the applicability of the law and the Petitioner has not laid any basis why the motor vehicles should be exempted from his Act. That any order of mandamus will be contrary to the law as the order will curtail the Authority in performance of its statutory duties.

32. The 3rd Respondent’s submissions are dated 27th February, 2023. The Respondent submitted that its statutory mandate does not include inspection and registration of motor vehicles as it has established standards applicable to weighing procedures applied by the 1st and 2nd Respondents in their respective statutory mandates. That the Petitioner has not demonstrated any fault on the part of the 3rd Respondent and it is clear that the standards have not been challenged in this Petition. They relied on the case of Aluoch Polo Aluochier Vs. Kenya National Commission of Huma Rights & 4 others (2016) eKLR.

33. The 3rd Respondent denied the allegations that it has violated the Petitioner’s rights and stated that the issuance of the order of mandamus is outside the scope of their mandate. The Respondent urged this Court to dismiss the application with costs.

34. The 4th Respondent’s submissions are dated 14th April, 2023 and submitted on single issue for determination: whether the 4th Respondent by its actions have violated the Petitioner’s rights under Articles 40, 47, 48 and 50(2) of the Constitution. The Respondent submitted that it was responsible for the fabrication of the suit motor vehicles and that it applied the standards supplied to it by the 3rd Respondent. That after the fabrication they released the vehicles to the Petitioner for subsequent processing and approvals with other authorities and that when it was directed to inspect and confirm any addition or subtraction on the fabrications it discovered that there were none. The Respondent concluded by submitting that it adhered to body building standards KS 372-2024 and designed the buses to meet the required standards using the recommended material and further improved the overall safety of the bus for passengers.

Analysis and Determination 35. Having considered the parties’ pleadings, submissions and the applicable law, the issues which in my opinion arise for determination are:a.Whether the detention and impoundment of the Petitioner’s motor vehicles is illegal and unconstitutional for violating Articles 40, 47, 48 and 50 (2) of the Constitutionb.Whether an order of mandamus should issue; andc.Who should bear the costs of the Petition

Whether the detention and impoundment of the Petitioner’s motor vehicles is illegal and unconstitutional for violating Articles 40, 47, 48 and 50 (2) of the Constitution 36. The kernel of this Petition is the protest by the Petitioner that the 1st Respondent unilateral decision to weigh his motor vehicles in weighbridges across the Country and consequently impounding them on grounds that they exceeded the recommended weights without giving him an opportunity to be heard or defend himself violated Articles 40, 47, 48 and 50 (2) of the Constitution.

37. He also accuses the 2nd Respondent for recording the wrong tare weights and load capacity in the log books, that is 11000kgs and 5,000kgs respectively.

38. The 1st, 2nd and 3rd Respondents insisted that they discharged their duties in accordance with the statutory mandates.

39. The 4th Respondent on other hand stated that it fabricated the vehicles in line with standard specifications established by the 3rd Respondent.

40. An exhaustive examination of the Respondents’ statutory mandates in relation to the inspection and weighing of the suit motor vehicles is thus germane in guiding the direction of the Court in determining this Petition considering that the Petitioner is not challenging the constitutionality of any of the provisions in these Statutes.

41. The 1st Respondent is established under section 3 of the Kenya Roads Act, CAP 408 with its functions outlined under section 4 of the Act as follows:a.constructing, upgrading, rehabilitating and maintaining roads under its control;b.controlling national roads and road reserves and access to roadside developments;c.implementing road policies in relation to national roads;d.ensuring adherence to the rules and guidelines on axle load control prescribed under the Traffic Act (Cap. 403) and under any regulations under this Act;e.ensuring that the quality of road works is in accordance with such standards as may be prescribed by the Cabinet Secretary;f.in collaboration with the Ministry responsible for Transport and the Police Department, overseeing the management of traffic and road safety on national roads;g.collecting and collating all such data related to the use of national roads as may be necessary for efficient forward planning under this Act;h.monitoring and evaluating the use of national roads;i.planning the development and maintenance of national roads;j.advising the Cabinet Secretary on all issues relating to national roads;k.preparing the road works programmes for all national roads;l.liaising and co-ordinating with other road authorities in planning and on operations in respect of roads; andm.performing such other functions related to the implementation of this Act as may be directed by the Cabinet Secretary.

42. The 2nd Respondent on the other hand is established under Section 3 of the National Transport and Safety Authority Act No. 33 of 2013 with the functions listed under section 4 thereof as among others, the following:a.register and license motor vehicles;b.conduct motor vehicle inspections and certification;c.regulate public service vehicles;d.advise the Government on national policy with regard to road transport system;e.develop and implement road safety strategies;f.facilitate the education of the members of the public on road safety;g.conduct research and audits on road safety;h.compile inspection reports relating to traffic accidents;i.establish systems and procedures for, and oversee the training, testing and licensing of drivers;j.formulate and review the curriculum of driving schools;k.co-ordinate the activities of persons and organisations dealing in matters relating to road safety; andl.perform such other functions as may be conferred on it by the Cabinet Secretary or by any other written law.

43. The 3rd Respondent is established under Section 3 of the Standards Act, CAP 496 with its functions listed under Section 4 as follows:a.to promote standardization in industry and commerce;b.to make arrangements or provide facilities for the testing and calibration of precision instruments, gauges and scientific apparatus, for the determination of their degree of accuracy by comparison with standards approved by the Minister on the recommendation of the Council, and for the issue of certificates in regard thereto;c.to make arrangements or provide facilities for the examination and testing of commodities and any material or substance from or with which and the manner in which they may be manufactured, produced, processed or treated;d.to control, in accordance with the provisions of this Act, the use of standardization marks and distinctive marks;e.to prepare, frame, modify or amend specifications and codes of practice;f.to encourage or undertake educational work in connexion with standardization;g.to assist the Government or any local authority or other public body or any other person in the preparation and framing of any specifications or codes of practice;h.to provide for co-operation with the Government or the representatives of any industry or with any local authority or other public body or any other person, with a view to securing the adoption and practical application of standards;i.to provide for the testing at the request of the Minister, and on behalf of the Government, of locally manufactured and imported commodities with a view to determining whether such commodities comply with the provisions of this Act or any other law dealing with standards of quality or description.

44. Section 56 of the Traffic Act, CAP Laws of Kenya provides thus1. No vehicle shall be used on a road with a load greater than the load specified by the manufacturer of the chassis of the vehicle or than the load capacity determined by an inspector under this Act.2. No vehicle shall be used on a road if it is loaded in such a manner as to make it a danger to other persons using the road or to persons travelling on the vehicle; and should any load or part of a load fall from any vehicle on to a road such fact shall be prima facie evidence that the vehicle was loaded in a dangerous manner until the contrary is proved to the satisfaction of the court.

45. Section 58(2) of the Traffic Act provides for the penalty for overloading under section 56. The section provides that:‘Any person who drives or uses on a road a vehicle in contravention of the provisions of section 55 or section 56 shall be guilty of an offence and liable to a fine not exceeding four hundred thousand or to imprisonment for a term not exceeding two years or to both:Provided that rules under this Act may provide that a person who is guilty of an offence under section 55 or 56 shall be liable to pay a fine according to a prescribed scale, and different scales may be prescribed for first offenders, and for second or subsequent offenders, within a prescribed period, but so that no person shall thereby be liable to pay a fine greater than the maximum provided by this subsection; and for the avoidance of doubt it is declared that liability of a person to pay a fine on a prescribed scale shall not affect that person’s liability to imprisonment under this subsection as an alternative to, in addition to, or in default of, the payment of a fine.’

46. Section 4 of the East African Community Vehicle Load Control Act provides thus:1. The axle load of any vehicle using the Regional Trunk Road Network shall not exceed the maximum permissible weight limits for such vehicle, set out in the Second Schedule.2. The gross vehicle weight of any vehicle using the Regional Trunk Road Network shall not exceed the maximum permissible gross vehicle weight specified in the Third Schedule

47. The penalties for overloading are prescribed under Clause 11 of the East African Community Vehicle Load Control (Enforcement Measures) Regulations, 2018 which states thus:1. Where a vehicle is determined to be overloaded, the transporter shall be liable, and shall pay at the weighbridge station the overloading fees prescribed in the Third Schedule.2. The overloading fees shall comprise both the axle and gross vehicle weight overload as provided in the Third Schedule.3. The overloading fees payable under sub-regulation (1) shall be determined and certified by an authorised officer on the weighbridge certificate.

48. Clause 13 of the said Regulations empowers the National Roads Authority to impound and detain any overloaded vehicle until the requisite overloading fees have been paid.

49. The Kenya Roads (Kenya National Highways Authority) Regulations, 2013 [L.N. 86/2013. ] made pursuant to the Kenya Roads Act No. 2 of 2007 is explicit, under Regulation 14 provides that:1. Subject to regulation 13, the notification in the weighbridge report form shall form the basis for imposing fees where the vehicle is found to be overloaded in accordance with these Regulations.2. Upon issuance of the weighbridge report form, it shall be the duty of the driver to notify the registered owner of an overload offence and the registered owner shall be required to pay the overload fee.3. The registered owner of the motor vehicle pulling the trailer is in breach of regulation 10, the owner of the motor vehicle shall be liable for the overload offence and shall be required to pay overload fees.4. In order to secure payment of fees, an overloaded vehicle shall be detained free of charge by the Authority for the first three consecutive days, and subsequently, a fee of two thousand shillings shall be charged for each extra day until proof of payment is produced.5. Subject to the provisions of this regulation detained vehicles shall be held under the owner’s responsibility and payment of fees prescribed in Part 1E of the Schedule shall be made either by cash or irrevocable bankers’ cheque in United States dollars or its equivalent in Kenya Shillings.

50. The Petitioner’s vehicles are buses fitted with two axles which are within the provisions of clause 2(2) of Schedule 12 Part 1 of the Traffic (Amendment) Rules, 2013 (Legal Notice 93 of 2013);‘Notwithstanding subparagraph (1), the maximum total weight of any vehicle or combination of vehicles fitted with pneumatic tyres, whether laden or unladen, shall not exceed the following—(a)vehicle with two axles .................................... 18,000 kg.’

51. From the foregoing legal provisions, it is crystal clear that the 1st Respondent in exercise of its legal mandate has the authority to detain and impound overloaded motor vehicles upon weighing and finding that they exceed the recommended tare weight. The 1st Respondents did not thus infringe on the Petitioner’s right to property by lawfully discharging its legal mandate. The right to property can be lawfully limited by law, in this case, it is the (Traffic Act) and the East African Community Vehicle Load Control Act as this is permissible as long as conditions set out in Article 24(2) of the Constitution are met. The Petitioner has not proved that this limitation unreasonable or unjustifiable in a democratic society.

52. Concerning the allegation that the 1st Respondent violated his rights under Article 47 of the Constitution, the 1st Respondent deponed and submitted that its weighbridge stations issued the Petitioner’s drivers with the weighbridge tickets and informed them of the fines to be paid and it was only after the same were not paid that the vehicles were impounded and detained.

53. The Kenya Roads (Kenya National Highways Authority) Regulations, 2013 [L.N. 86/2013. ] in particular regulation 19 provides what should happen should any person subject to payment of a fine be dissatisfied with the fines imposed on the weighbridge ticket. It provides the mechanism of appeal as follows:1. A person aggrieved by the decision of the authorized officer or the Authority, refusing to grant a weighbridge report or any permit required to be granted under these Regulations, may appeal against the decision to the Cabinet Secretary.2. Where a person is not satisfied with the decision of the Cabinet Secretary under sub regulation (1), the person may appeal to the High Court.

54. This procedure is also codified in Section 17 of the East African Community Vehicle Load Control Act, 2016, stipulates that: -1. When an authorized officer determines that a vehicle is carrying a load in excess of the legal load limit under this Act, he or she shall issue a weighing report setting out the overload particulars and the amount of overload fees payable.2. Where an authorized officer, while a journey is being undertaken, determines that a vehicle is carrying a load in excess of the legal load limit, the authorized officer shall in consultation with relevant implementing agencies, not allow the vehicle in question to continue its journey, unless the load is redistributed and the vehicle is, upon being reweighed, found to be within the legal load limit, or the vehicle is offloaded to lower its weight to the legal load limit and—a.any amounts due under subsection (1) have been paid to the national roads authority or its duly appointed agent; orb.a guarantee in the prescribed format is provided by the transporter that such amounts shall be paid.3. Where the fact of overloading is not disputed by the transporter, the transporter shall sign and acknowledge the weighing report in the prescribed manner and the transporter shall be liable for the overload fees which may be recovered as a summary debt by the national roads authority.4. Where the fact of overloading is disputed by the transporter, the authorized officer weighing the vehicle shall indicate such dispute in the weighing report, and a copy of the disputed report shall be issued to the transporter who may—a.pay the requisite overloading fees on a without prejudice basis to secure the release of the vehicle, make such necessary adjustment on the load as may be directed by the authorized officer and lodge an appeal against the fees as provided for by regulations made under this Act; orb.appeal against the fees, using regulations made under this Act, during which period the vehicle will remain detained at such designated place at the cost of the transporter.

55. There is a clear path through which disputes arising from the implementation or application of the provisions of the Act in question can be resolved as provided for in the Kenya Roads (Kenya National Highways Authority) Regulations, 2013 [L.N. 86/2013. ] as well as the East African Community Vehicle Load Control Act, 2026 yet the Petitioner skipped this process of taking up the matter of the disputed the fines for overloading with the Cabinet Secretary before approaching this Court. This offends the doctrine of exhaustion of remedies and thereby deprives this Court the jurisdiction to entertain this dispute. I am emboldened in making this finding by the decision of Gabriel Mutava & 2 others v Managing Director Kenya Ports Authority & another [2016] eKLR where the Court held thus:“… Time and again it has been said that where there exists other sufficient and adequate avenue to resolve a dispute, a party ought not to trivialize the jurisdiction of the Constitutional Court by bringing actions that could very well and effectively be dealt with in that other forum. Such party ought to seek redress under such other legal regime rather than trivialize constitutional litigation…”

56. The Petitioner does not deny that weighbridge tickets were issued by the Respondent yet he never contested them before the Cabinet Secretary Roads prior to filing this Petition. The filing of this Petition offends the principle of exhaustion of administrative remedies in the circumstances.

57. In any case, the High Court has had to deal with similar issues in petition in Aziz Vs. Kenya National Highways Authority & Another (petition E113 Of 2021) [2023] KEHC 17758 (klr) (constitutional And Human Rights) (28 April 2023) (judgment). Lady Justice M. Thande commenting on these statutory provisions observed:“57. The impugned Sections generally provide for liability to pay overloading fees to the 1st Respondent at weighing stations or other designated locations. The provisions also provide for the consequences of not paying the overloading fees, which include impounding and detaining of an overloaded vehicle and discontinuation with its journey…59. ….Further, the protection of our roads which are built at great cost to the tax payer is a matter of great public interest that this Court must be alive to. I also agree with the learned Judge that the reasonableness and convenience of overloading fees levied to a transporter whose vehicle has been found to be overloaded cannot be gainsaid. This in my view saves time to both the state and the offender and is a less restrictive means which satisfies the Article 24 analysis test. Further a transporter who disputes an overload finding by the 1st Respondent is free under Section 17 of the Act to appeal the decision. I therefore find and hold that the Petitioner has not demonstrated to the satisfaction of the Court, that the impugned provisions of the Act are unconstitutional.”

Whether an order of mandamus should issue 58. On whether I should issue an order of mandamus to have the suit motor vehicles log books amended by the Respondents as per the ascertained weights; my take is that registration of motor vehicles is governed by section 6 of the Traffic Act with subsections 4 and 7 which provides thus:(4)If any application is made to register any commercial vehicle or trailer, the load capacity of which has not been declared by the manufacturers of the chassis, a licensing officer shall not register the vehicle or trailer until an inspector has determined its load capacity; and the determination shall be final.(7)In the event of any change of circumstance which affects the accuracy of the registered particulars of any vehicle, the owner of the vehicle shall inform the Authority of such change and shall forward to him the registration certificate in order that it may be amended together with the prescribed fee, and shall supply the Authority with any further information which he may require.

59. The Black’s Law Dictionary, 11th Edition, defines Mandamus as follows:“(Latin “we command”) A writ issued by a court to compel performance of a particular act by a lower court or a governmental officer or body, usually to correct a prior action or failure to act.”

60. An order of mandamus is one of the judicial review orders which can issue pursuant to Article 23 (3) (f) of the Constitution as a Constitutional supervision of power meant to safeguard Constitutional principles, values and purposes. It is a discretionary remedy that compels performance of a duty by a person or body of persons who has failed to perform a specified duty that the Applicant has a legal right to expect the duty shall be performed.

61. In Republic Vs. Principal Secretary, Ministry Of Internal Security & Another Exparte Schon Noorani & Another [2018] EKLR, the court in adopting the reasoning in Apotex Inc v. Canada (Attorney General) 1993 Can L11 3004 (F.C.A) [1994] I.F.C 742 (C.A) aff’d 1994 Can LL47, (S.C.C) [1994] 3 S.C.R 1100 and Dragan v. Canada (Minister of Citizenship and Immigration 2003 FCT 211 (Can L11) [2003] 4. F. C 189 (T.D) aff’d 2003 FCA 233 (Can L11) 2003 FCA 233), set out the following seven factors which must be demonstrated for the writ of mandamus to issue:i.There must be a public legal duty to act;ii.The duty must be owed to the Applicants;iii.There must be a clear right to the performance of that duty, meaning that;a.The Applicants have satisfied all conditions precedent; andb.There must have been;1. A prior demand for performance;2. A reasonable time to comply with the demand, unless there was outright refusal; and3. An express refusal or an implied refusal through unreasonable delay;iv.No other adequate remedy is available to the Applicants.v.The order sought must be of some practical value or effect;vi.There is no equitable bar to the relief sought.vii.On a balance of convenience, mandamus should lie.

62. The mandate to register motor vehicles belongs to the 2nd Respondent. The said 2nd Respondent stated that in registering the suit motor vehicles it relied on the information provided during 1st Registration which was KRA entry documents, goods of description, chassis number, engine number, tare weight and load capacity. That the tare weight and load capacity prescribed for the suit motor vehicles under the Traffic Act is 11000kgs and 5000kgs respectively to arrive at a total full body weight of 16000kgs.

63. The 1st Respondent confirmed that during the re-weighing of the said motor vehicles, the tare weight exceeded the recommended 11,000kgs. Some of the vehicles weighed as follows: KCF 194A and KCF 196A weighed 14,760Kgs, KCT 137A weighed 13,480kgs, KCT 138A weighed 13,240kgs, KBS 452T weighed 13,390kgs, KCB 460R weighed 13,560kgs, KCL 065A weighed 13,960kgs.

64. It is the responsibility of the Petitioner to apply for the correction of the information on the log books as provided under section 6(7) of the Traffic Act. The Traffic Act proposes a specific gross vehicle weight for the vehicles in the category as those of the Petitioner, the 2nd Respondent cannot therefore record any weight on the logbook above that stipulated in the Act. The 2nd Respondent cannot be compelled to register the Petitioner’s vehicles using weights that are in excess of what is provided for in law. The order cannot command 2nd Respondent to do what is not is legally bound to do.

65. The prayer for the order of mandamus therefore declined. In the case of Republic Vs. Kenya National Examinations Council Ex Parte Gathenji & Others, (1997) EKLR explained the applicable principles for an order of mandamus to issue as follows:“The next issue we must deal with is this: What is the scope and efficacy of an Order of Mandamus? Once again we turn to Halsbury’s Law Of England, 4th Edition Volume 1 at page 111 From paragraph 89. That learned treatise says:-At paragraph 90 headed “the mandate” it is stated:“The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.”What do these principles mean? They mean that an order of mandamus will compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed….”

66. The upshot of the above is that this Petition is hereby dismissed with costs to the Respondents.

DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 15TH DAY OF JANUARY, 2025. …………………………L N MUGAMBIJUDGE