REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CONSTITUTIONAL PETITION NO. E001 OF 2024
IN THE MATTER OF ARTICLES 2(1), 2(4), 3(1), 10 (1) & (2), 19, 20(1) & (3), 21, 22, 23, 24, 25(c), 35, 40, 43, 47, 50(2), 232 & 258 OF THE CONSTITUTION, 2010
AND
IN THE MATTER OF CONTRAVENTION OF ARTICLES 2(1), 3(1) & (2), 10 (1) & (2), 21, 25(c), 35, 40, 43, 47 & 50 & 232 OF THE CONSTITUTION, 2010
BETWEEN
ABDIRIZAK MUSE FARAH……….……………………………..PETITIONER
AND
KENYA NATIONAL HIGHWAYS AUTHORITY RESPONDENT
RULING
1. This ruling is in respect of the notice of preliminary objection dated 14th March 2024, was taken out by the Respondent opposing the Petitioner's Petition dated 1st February, 2024.
2. The preliminary objection was tailored as follows: -
a. The Honourable Court lacks jurisdiction to hear the Petition on the first instance pursuant to the provisions of Section 17 of the East African Vehicle Load Control Act, 2016.
3. On this Court’s directions, the preliminary objection was to be heard together and by way of written submissions. Both parties complied with the Court directive.
4. The preliminary objection impugned the jurisdiction of this Court on the basis of the doctrine of exhaustion. It was contended that the Petitioner had not exhausted the internal dispute mechanisms and the statutory dispute resolution mechanisms prior to making their way to Court.
5. This Court will, therefore, address itself on whether the doctrine of exhaustion applies in this matter as a complete jurisdictional bar.
6. In Kenya, the doctrine traces its origin from Article 159(2)(c) of the Constitution which recognizes and entrenches the use of alternative mechanisms of dispute resolution in the following terms: -
“159(2) In exercising judicial authority, the Courts and tribunals shall be guided by the following principles-
(a) …
(b) …
(c) alternative forms of dispute resolution including resolution, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause 3.”
7. Clause 3 is on traditional dispute resolution mechanisms.
8. The doctrine of exhaustion was comprehensively dealt with by a 5-Judge Bench in Mombasa High Court Constitutional Petition No 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) (2020) eKLR. The Court stated as follows:
“52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in R vs Independent Electoral and Boundaries Commission (I.EBC) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, where the Court opined thus:
42. This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated words:
Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.
43.While this case was decided before the Constitution of Kenya 2010 was promulgated, many cases in the Post-2010 era have found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution. We can do no better in this regard than cite another Court of Appeal decision which provides the Constitutional rationale and basis for the doctrine. This is Geoffrey Muthiga Kabiru & 2 others – vs- Samuel Munga Henry & 1756 others [2015] eKLR, where the Court of Appeal stated that:
It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”
9. The Court also dealt with the exceptions to the doctrine of exhaustion. It expressed itself as follows: -
“59. However, our case law has developed a number of exceptions to the doctrine of exhaustion. In R vs Independent Electoral and Boundaries Commission (IEBC) & Others ex parte The National Super Alliance Kenya (NASA) (supra), after exhaustively reviewing Kenya's decisional law on the exhaustion doctrine, the High Court described the first exception thus:
What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake. See also Moffat Kamau and 9 Others vs Aelous (K) Ltd and 9 Others.)
60. As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined inthe Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.
61.The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR.
62.In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.”
10. The above decision was appealed against by the Respondents. The Court of Appeal in upholding the decision and in dismissing the appeal in Mombasa Civil Appeal No 166 of 2018 Kenya Ports Authority v William Odhiambo Ramogi & 8 others [2019] eKLR held as follows: -
“The jurisdiction of the High Court is derived from Article 165 (3) and (6) of the Constitution. Accordingly, the High Court has unlimited original jurisdiction in criminal and civil matters, including determination of a question of enforcement of the bill of rights and interpretation of the Constitution encompassing determination of any matter relating to the Constitutional relationship between the different levels of government.
At the High Court, we note that the learned Judges dealt with this matter under the question framed as follows: Is the court barred from considering the suit at present by virtue of Article 189 of the Constitution and sections 33 and 34 of Inter-Governmental Relations Act of 2012 (IGRA)? The parties have advanced similar arguments as before the learned Judges of the High Court. The High Court went further than just looking at the ruling by Ogola J. They also took into account the doctrine of exhaustion as enunciated in Republic vs Independent Election and Boundaries Commission (IEBC) ex parte National Super Alliance (NASA) Kenya & 6 Others [2017] eKLR. They applied a dual pronged approach before concluding that the dispute was not an inter-governmental dispute under IGRA. First, they considered that the test for determining the matter as an inter-governmental dispute for purposes of application of IGRA was not simply to look at who the parties to the dispute were, but the nature of the claim in question and; secondly, they considered that the claimed Constitutional violations seeking to be enforced are not mere “bootstraps.” We have keenly addressed our minds to the learned Judges’ decision and are satisfied that they stayed within the expected contours and properly directed themselves. Once they determined that the dispute was not inter-governmental in nature, we do not think it is necessary to consider whether the petitioners had exhausted their legal avenue. Jurisdiction by the High Court under Article 165 (5) of the Constitution became automatic. And in our view, it could not be ousted or substituted.”
11. Further, in Civil Appeal 158 of 2017, Fleur Investments Limited -vs- Commissioner of Domestic Taxes & another [2018] eKLR, the Learned Judges of the Court of Appeal relied on an earlier decision in Speaker of National Assembly vs Njenga Karume (1990-1994) EA 546 to assume jurisdiction by bypassing the mechanism under Income Tax Tribunal. They observed as follows: -
“23. For the reasons we have given earlier and others that will become apparent, there were definitely exceptional circumstances that existed in this case that were outside the ambit of the Income Tax Tribunal which called for intervention by way of judicial review. Whereas courts of Law are enjoined to defer to specialised Tribunals and other Alternative Dispute Resolution Statutory bodies created by Parliament to resolve certain specific disputes, the court cannot, being a bastion of Justice, sit back and watch such institutions ride roughshod on the rights of citizens who seek refuge under the Constitution and other legislations for protection. The court is perfectly in order to intervene where there is clear abuse of discretion by such bodies, where arbitrariness, malice, capriciousness and disrespect of the Rules of natural justice are manifest. Persons charged with statutory powers and duties ought to exercise the same reasonably and fairly.”
12. From the foregoing discussion, the doctrine of exhaustion is a complete bar to the jurisdiction of a Court save in cases where any of the exceptions apply.
13. Applying the above to this matter, there is no doubt that the Petition herein relates to the non-transparent, inconsistent, unreasonable and unconscionable acts of the Respondent by charging him on different occasions overload fees of Kshs. 211,114/= was paid without any tussle, another extra amount of Kshs. 844,306/= 4 times the amount earlier paid as a pre-condition for the release of the vehicle, which sums was again paid and another demand for Kshs. 387,493/= was made. The Petitioner termed the acts of the Respondent as capricious, whimsical and contrary to the provisions of Article 10 & 47 of the Constitution and he alleges that the said acts have resulted to the violation of the Petitioner's right to fair administrative action but also right to fair hearing right to property and social security. The Petitioner argued that Article 23 of the Constitution vests in the High Court jurisdiction to hear and determine applications for redress of a denial, violation or an infringement of a right or fundamental freedom and issue declaratory orders and compensation, which are the prayers sought in his instant Petition.
14. The Respondent argued that the Petitioner’s Petition offended the mandatory provisions of Section 17 of the East African Community Vehicle Control Act, 2016. They argued that Section 17 (3) of the East African Vehicle Load Control Act, 2016 stipulates that 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 relevant National Roads Authority, which in this regard is the Respondent.
15. Further, the Respondent argued that under Section 17(4) of the East African Vehicle Load Control Act, 2016, where the transporter disputes the overloading fees charges, he can pay for the fee on a without prejudice basis to secure the release of the vehicle, make necessary weight adjustments and appeal against the fees or appeal against the fees while the motor vehicle is detained at the cost of the owner of the vehicle. The section provides; 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 reported shall be issued to the transporter who (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 the regulations under this Act; or (b)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.
16. The Respondent contends that the Petitioner failed to indicate the dispute in the weighting report as provided in the Act and that the Petitioner proceeded to pay the overloading fees and secure the release of the vehicle. The Respondent argued that the Petitioner made a payment of Kshs. 844,356.00/= and Kshs. 211,964.00/= respectively to secure release of the suit motor vehicle. Upon receipt of the payment by the Respondent, it was mandatory to ensure that the motor vehicle was reweighed before being released as prescribed in law. On 26th January 2024, at 1319hrs, the suit motor vehicle was reweighed before being released and the scale gave different weights from the initial weighing which required the transporter to make additional payment for the overload fees of 367,493.00/=. Further, the Respondent argued that commenced investigations and on initial inquiry, it established that the disparity in weights had been brought about by lack of integrity of some of the personnel at weighbridge, who in collusion with the driver of the said motor vehicle made a scheme to ensure the motor vehicle pays less overload fees. Investigations were commenced on the aforementioned allegations and the staff who were manning the multideck scale at the time of this incident were suspended from duty.
17. Section 17(4) of the East African Vehicle Load Control Act, 2016 (enforcement measures) do not create an appellate mechanism. A closer examination of the regulations reveals that the only appellate procedure is with regard to dispute of a report of a road damage assessment and not a determination of an overload. Based on my scrutiny of the East African Vehicle Load Control Act, 2016 and the Petitioner’s Petition, it is indeed correct to say that there is no clear, easily ascertainable appellate mechanism inbuild in the Act or regulations made thereunder that a party dissatisfied with the decision of the officer under Section 17 of the Act would invoke to seek redress. In Misc. Application No. E005 of 2022 Jorame Ontwori Makori vs Kenya National Highway Authority, Justice Muigai stated that; “I have not come across any procedure and or inference of any internal mechanism that the parties could first exhaust before approaching this court. The respondent has not outlined which internal mechanism they could approach to address their grievances”. The Court further stated that; “It is true section 17(4) (a) and (b) of the EACVLA recognizes the aspect of lodging an appeal against the fee but it is not clear the forum under which that appeal is to be lodged making the said provision a mere prescription.”
18. It is therefore this Court’s decision that the facts relating to the variance in the weights having been caused by the Respondent’s personnel and the contestation of the different overloading fees by the Respondent can only be determined at the hearing of the petition where all the issues in controversy will be canvassed and tested.
19. Secondly, I am not convinced that there exist in the East African Vehicle Load Control Act, 2016 a clear, easily ascertainable appellate mechanism where an aggrieved party to a decision of authorized officer under Section 17(4) would go to in the event of a dispute.
20. Thirdly, as the Petitioner alleges violations of fundamental rights, it’s only the High Court that has jurisdiction under Article 23(3) of the Constitution to hear and determine applications for redress of denial, violations or infringement of, or threat to, a right or fundamental freedom in the bill of right. The principle of exhaustion can not defeat a petition for declaration of violation of Constitutional rights and freedoms. In any event the Constitution of Kenya 2010 is the supreme law and the enforcement of fundamental rights and freedoms enshrined therein takes precedence over other legislation which must at all times conform to the Constitition.
21. Consequently, the preliminary objection dated 14th March 2024, as to the jurisdiction of this Court is dismissed with cost to the petitioner.
Orders accordingly.
Delivered, Signed and Dated at Bungoma this 3rd day of March 2026.
Mwanaisha.S. Shariff
Judge
In the presence of:
Anwar for the Petitioner
N/A by Respondent
Peter Machoni – Court Assistant
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CONSTITUTIONAL PETITION NO. E001 OF 2024
IN THE MATTER OF ARTICLES 2(1), 2(4), 3(1), 10 (1) & (2), 19, 20(1) & (3), 21, 22, 23, 24, 25(c), 35, 40, 43, 47, 50(2), 232 & 258 OF THE CONSTITUTION, 2010
AND
IN THE MATTER OF CONTRAVENTION OF ARTICLES 2(1), 3(1) & (2), 10 (1) & (2), 21, 25(c), 35, 40, 43, 47 & 50 & 232 OF THE CONSTITUTION, 2010
BETWEEN
ABDIRIZAK MUSE FARAH……….……………………………..PETITIONER
AND
KENYA NATIONAL HIGHWAYS AUTHORITY RESPONDENT
RULING
1. This ruling is in respect of the notice of preliminary objection dated 14th March 2024, was taken out by the Respondent opposing the Petitioner's Petition dated 1st February, 2024.
2. The preliminary objection was tailored as follows: -
a. The Honourable Court lacks jurisdiction to hear the Petition on the first instance pursuant to the provisions of Section 17 of the East African Vehicle Load Control Act, 2016.
3. On this Court’s directions, the preliminary objection was to be heard together and by way of written submissions. Both parties complied with the Court directive.
4. The preliminary objection impugned the jurisdiction of this Court on the basis of the doctrine of exhaustion. It was contended that the Petitioner had not exhausted the internal dispute mechanisms and the statutory dispute resolution mechanisms prior to making their way to Court.
5. This Court will, therefore, address itself on whether the doctrine of exhaustion applies in this matter as a complete jurisdictional bar.
6. In Kenya, the doctrine traces its origin from Article 159(2)(c) of the Constitution which recognizes and entrenches the use of alternative mechanisms of dispute resolution in the following terms: -
“159(2) In exercising judicial authority, the Courts and tribunals shall be guided by the following principles-
(a) …
(b) …
(c) alternative forms of dispute resolution including resolution, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause 3.”
7. Clause 3 is on traditional dispute resolution mechanisms.
8. The doctrine of exhaustion was comprehensively dealt with by a 5-Judge Bench in Mombasa High Court Constitutional Petition No 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) (2020) eKLR. The Court stated as follows:
“52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in R vs Independent Electoral and Boundaries Commission (I.EBC) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, where the Court opined thus:
42. This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated words:
Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.
43.While this case was decided before the Constitution of Kenya 2010 was promulgated, many cases in the Post-2010 era have found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution. We can do no better in this regard than cite another Court of Appeal decision which provides the Constitutional rationale and basis for the doctrine. This is Geoffrey Muthiga Kabiru & 2 others – vs- Samuel Munga Henry & 1756 others [2015] eKLR, where the Court of Appeal stated that:
It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”
9. The Court also dealt with the exceptions to the doctrine of exhaustion. It expressed itself as follows: -
“59. However, our case law has developed a number of exceptions to the doctrine of exhaustion. In R vs Independent Electoral and Boundaries Commission (IEBC) & Others ex parte The National Super Alliance Kenya (NASA) (supra), after exhaustively reviewing Kenya's decisional law on the exhaustion doctrine, the High Court described the first exception thus:
What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake. See also Moffat Kamau and 9 Others vs Aelous (K) Ltd and 9 Others.)
60. As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined inthe Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.
61.The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR.
62.In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.”
10. The above decision was appealed against by the Respondents. The Court of Appeal in upholding the decision and in dismissing the appeal in Mombasa Civil Appeal No 166 of 2018 Kenya Ports Authority v William Odhiambo Ramogi & 8 others [2019] eKLR held as follows: -
“The jurisdiction of the High Court is derived from Article 165 (3) and (6) of the Constitution. Accordingly, the High Court has unlimited original jurisdiction in criminal and civil matters, including determination of a question of enforcement of the bill of rights and interpretation of the Constitution encompassing determination of any matter relating to the Constitutional relationship between the different levels of government.
At the High Court, we note that the learned Judges dealt with this matter under the question framed as follows: Is the court barred from considering the suit at present by virtue of Article 189 of the Constitution and sections 33 and 34 of Inter-Governmental Relations Act of 2012 (IGRA)? The parties have advanced similar arguments as before the learned Judges of the High Court. The High Court went further than just looking at the ruling by Ogola J. They also took into account the doctrine of exhaustion as enunciated in Republic vs Independent Election and Boundaries Commission (IEBC) ex parte National Super Alliance (NASA) Kenya & 6 Others [2017] eKLR. They applied a dual pronged approach before concluding that the dispute was not an inter-governmental dispute under IGRA. First, they considered that the test for determining the matter as an inter-governmental dispute for purposes of application of IGRA was not simply to look at who the parties to the dispute were, but the nature of the claim in question and; secondly, they considered that the claimed Constitutional violations seeking to be enforced are not mere “bootstraps.” We have keenly addressed our minds to the learned Judges’ decision and are satisfied that they stayed within the expected contours and properly directed themselves. Once they determined that the dispute was not inter-governmental in nature, we do not think it is necessary to consider whether the petitioners had exhausted their legal avenue. Jurisdiction by the High Court under Article 165 (5) of the Constitution became automatic. And in our view, it could not be ousted or substituted.”
11. Further, in Civil Appeal 158 of 2017, Fleur Investments Limited -vs- Commissioner of Domestic Taxes & another [2018] eKLR, the Learned Judges of the Court of Appeal relied on an earlier decision in Speaker of National Assembly vs Njenga Karume (1990-1994) EA 546 to assume jurisdiction by bypassing the mechanism under Income Tax Tribunal. They observed as follows: -
“23. For the reasons we have given earlier and others that will become apparent, there were definitely exceptional circumstances that existed in this case that were outside the ambit of the Income Tax Tribunal which called for intervention by way of judicial review. Whereas courts of Law are enjoined to defer to specialised Tribunals and other Alternative Dispute Resolution Statutory bodies created by Parliament to resolve certain specific disputes, the court cannot, being a bastion of Justice, sit back and watch such institutions ride roughshod on the rights of citizens who seek refuge under the Constitution and other legislations for protection. The court is perfectly in order to intervene where there is clear abuse of discretion by such bodies, where arbitrariness, malice, capriciousness and disrespect of the Rules of natural justice are manifest. Persons charged with statutory powers and duties ought to exercise the same reasonably and fairly.”
12. From the foregoing discussion, the doctrine of exhaustion is a complete bar to the jurisdiction of a Court save in cases where any of the exceptions apply.
13. Applying the above to this matter, there is no doubt that the Petition herein relates to the non-transparent, inconsistent, unreasonable and unconscionable acts of the Respondent by charging him on different occasions overload fees of Kshs. 211,114/= was paid without any tussle, another extra amount of Kshs. 844,306/= 4 times the amount earlier paid as a pre-condition for the release of the vehicle, which sums was again paid and another demand for Kshs. 387,493/= was made. The Petitioner termed the acts of the Respondent as capricious, whimsical and contrary to the provisions of Article 10 & 47 of the Constitution and he alleges that the said acts have resulted to the violation of the Petitioner's right to fair administrative action but also right to fair hearing right to property and social security. The Petitioner argued that Article 23 of the Constitution vests in the High Court jurisdiction to hear and determine applications for redress of a denial, violation or an infringement of a right or fundamental freedom and issue declaratory orders and compensation, which are the prayers sought in his instant Petition.
14. The Respondent argued that the Petitioner’s Petition offended the mandatory provisions of Section 17 of the East African Community Vehicle Control Act, 2016. They argued that Section 17 (3) of the East African Vehicle Load Control Act, 2016 stipulates that 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 relevant National Roads Authority, which in this regard is the Respondent.
15. Further, the Respondent argued that under Section 17(4) of the East African Vehicle Load Control Act, 2016, where the transporter disputes the overloading fees charges, he can pay for the fee on a without prejudice basis to secure the release of the vehicle, make necessary weight adjustments and appeal against the fees or appeal against the fees while the motor vehicle is detained at the cost of the owner of the vehicle. The section provides; 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 reported shall be issued to the transporter who (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 the regulations under this Act; or (b)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.
16. The Respondent contends that the Petitioner failed to indicate the dispute in the weighting report as provided in the Act and that the Petitioner proceeded to pay the overloading fees and secure the release of the vehicle. The Respondent argued that the Petitioner made a payment of Kshs. 844,356.00/= and Kshs. 211,964.00/= respectively to secure release of the suit motor vehicle. Upon receipt of the payment by the Respondent, it was mandatory to ensure that the motor vehicle was reweighed before being released as prescribed in law. On 26th January 2024, at 1319hrs, the suit motor vehicle was reweighed before being released and the scale gave different weights from the initial weighing which required the transporter to make additional payment for the overload fees of 367,493.00/=. Further, the Respondent argued that commenced investigations and on initial inquiry, it established that the disparity in weights had been brought about by lack of integrity of some of the personnel at weighbridge, who in collusion with the driver of the said motor vehicle made a scheme to ensure the motor vehicle pays less overload fees. Investigations were commenced on the aforementioned allegations and the staff who were manning the multideck scale at the time of this incident were suspended from duty.
17. Section 17(4) of the East African Vehicle Load Control Act, 2016 (enforcement measures) do not create an appellate mechanism. A closer examination of the regulations reveals that the only appellate procedure is with regard to dispute of a report of a road damage assessment and not a determination of an overload. Based on my scrutiny of the East African Vehicle Load Control Act, 2016 and the Petitioner’s Petition, it is indeed correct to say that there is no clear, easily ascertainable appellate mechanism inbuild in the Act or regulations made thereunder that a party dissatisfied with the decision of the officer under Section 17 of the Act would invoke to seek redress. In Misc. Application No. E005 of 2022 Jorame Ontwori Makori vs Kenya National Highway Authority, Justice Muigai stated that; “I have not come across any procedure and or inference of any internal mechanism that the parties could first exhaust before approaching this court. The respondent has not outlined which internal mechanism they could approach to address their grievances”. The Court further stated that; “It is true section 17(4) (a) and (b) of the EACVLA recognizes the aspect of lodging an appeal against the fee but it is not clear the forum under which that appeal is to be lodged making the said provision a mere prescription.”
18. It is therefore this Court’s decision that the facts relating to the variance in the weights having been caused by the Respondent’s personnel and the contestation of the different overloading fees by the Respondent can only be determined at the hearing of the petition where all the issues in controversy will be canvassed and tested.
19. Secondly, I am not convinced that there exist in the East African Vehicle Load Control Act, 2016 a clear, easily ascertainable appellate mechanism where an aggrieved party to a decision of authorized officer under Section 17(4) would go to in the event of a dispute.
20. Thirdly, as the Petitioner alleges violations of fundamental rights, it’s only the High Court that has jurisdiction under Article 23(3) of the Constitution to hear and determine applications for redress of denial, violations or infringement of, or threat to, a right or fundamental freedom in the bill of right. The principle of exhaustion can not defeat a petition for declaration of violation of Constitutional rights and freedoms. In any event the Constitution of Kenya 2010 is the supreme law and the enforcement of fundamental rights and freedoms enshrined therein takes precedence over other legislation which must at all times conform to the Constitition.
21. Consequently, the preliminary objection dated 14th March 2024, as to the jurisdiction of this Court is dismissed with cost to the petitioner.
Orders accordingly.
Delivered, Signed and Dated at Bungoma this 3rd day of March 2026.
Mwanaisha.S. Shariff
Judge
In the presence of:
Anwar for the Petitioner
N/A by Respondent
Peter Machoni – Court Assistant