Introduction
1. The petitioner herein moved the court vide a petition dated 5 th June 2026 seeking the following reliefs:
A. A DECLARATION that the automated traffic enforcement and penalty system operated by the 1 st Respondent, which determines liability and imposes penal sanctions upon motorists without prior adjudication by a competent and independent court or tribunal, is unconstitutional and inconsistent with the Constitution of Kenya, 2010, and in particular with Articles 1, 2, 25(c), 47, 48, 50, 159, and 160 thereof.
B. A DECLARATION that the determination of criminal liability and the imposition of penal sanctions are judicial functions exclusively vested by Article 159(1) of the Constitution in the courts and tribunals established by or under the Constitution, and cannot be exercised by the 1 st Respondent or any other administrative agency.
C. A DECLARATION that the 1 st Respondent's operation of the impugned system constitutes an unconstitutional usurpation of judicial authority contrary to Articles 159 and 160 of the Constitution and a violation of the doctrine of separation of powers.
D. A DECLARATION that the impugned system violates the Petitioner's rights under Articles 25(c), 27, 28, 35, 47, 48, and 50 of the Constitution.
E. AN ORDER OF PROHIBITION, directed to the 1 st Respondent, its officers, servants, agents, assigns, and all persons acting under its authority or direction, prohibiting the 1 st Respondent from implementing, enforcing, operating, levying, collecting, or otherwise giving effect to the impugned automated traffic enforcement and penalty system, or any similar mechanism that makes binding determinations of liability and imposes penal sanctions upon motorists without prior judicial determination by a competent and independent court or tribunal.
F. A DECLARATION that all fines, penalties, sanctions, demerit points, licence restrictions, registration restrictions, or other adverse consequences imposed upon the Petitioner or any other person pursuant to the impugned automated system are unconstitutional, unlawful, null and void ab initio and of no force and effect.
G. AN ORDER directing the 1 st Respondent to refund, within ninety (90) days of the date of this order, all monies collected from motorists pursuant to the impugned system, together with interest thereon at court rates from the date of collection.
H. AN ORDER directing the 1 st Respondent to take immediate steps to expunge from its records all demerit points, penalty notices, licence restrictions. registration restrictions, and adverse notations imposed pursuant to the impugned system.
I. COSTS of this Petition, including all hearing fees, counsel fees, and disbursements, on a full indemnity basis, to be borne by the Respondents jointly and severally.
J. INTEREST on all monetary orders at court rates from the date of the judgment of this Honourable Court until the date of full satisfaction.
K. General damages for violation of the Petitioners' constitutional rights.
L. SUCH FURTHER AND OTHER RELIEF as this Honourable Court may deem just, expedient, and appropriate in all the circumstances, including such structural or supervisory orders as the Court may consider necessary to give effect to the Constitution and to prevent a recurrence of the violations identified herein.
2. Contemporaneously with the filing of the petition, the petitioner filed a Notice of Motion application dated 5 th June, 2026 filed under certificate of urgency, seeking the following orders: -
a) THAT this Application be certified urgent and heard ex-parte in the first instance.
b) THAT pending the inter partes hearing and determination of this Application, this Honourable Court be pleased to issue a Conservatory Order restraining the Respondent, whether by itself, its officers, servants, agents or any person acting under its authority, from enforcing, collecting, processing, implementing, acting upon or giving any effect whatsoever to any penalties, fines, sanctions, demerit points, licence restrictions, suspensions or any other adverse administrative actions arising from the impugned automated traffic enforcement and fines system.
c) THAT this Honourable Court be pleased to issue a Conservatory Order restraining the Respondent, whether by itself, its officers, servants, agents or any person acting under its authority, from enforcing, collecting, processing, implementing, acting upon or giving any effect whatsoever to any penalties, fines, sanctions, demerit points, licence restrictions, suspensions or any other adverse administrative actions arising from the impugned automated traffic enforcement and fines system.
d) THAT pending the inter partes hearing and determination of this Application, the Respondent, its officers, servants, agents and/or any persons acting under their instructions or on their behalf, be restrained from issuing, processing, enforcing, collecting or in any manner whatsoever acting upon any notices of violation, penalties or sanctions pursuant to the impugned automated traffic enforcement system.
e) THAT the Respondent, its officers, servants, agents and/or any persons acting under their instructions or on their behalf, be restrained from issuing, processing, enforcing, collecting or in any manner whatsoever acting upon any notices of violation, penalties or sanctions pursuant to the impugned automated traffic enforcement system.
f) THAT upon the inter partes hearing of this Application, this Honourable Court be pleased to grant a substantive Conservatory Order restraining the Respondent from enforcing the impugned automated traffic enforcement and fines system pending the hearing and determination of the Petition.
g) THAT this Honourable Court be pleased to grant such further or other orders as it may deem just and expedient in the circumstances.
h) THAT the costs of this Application be in the cause.
3. Upon a preliminary consideration of the application, the court certified the matter as urgent, and gave directions on service, the 1 st Respondent entered appearance and filed grounds of objection, raising the issue of res judicata .Parties took directions on submissions to dispose of the application of 5 th June, 2026.
Petitioner’s Case
4. The application is supported the affidavit of GEORGE SHITANDI, sworn on even date and the grounds on the face of the application.
5. The Petitioner/Applicant asserts that the Respondent has established and operationalized an automated traffic enforcement system through which alleged traffic offences are detected electronically and penalties imposed upon motorists, which the petition herein challenges the constitutionality and legality of the said automated traffic enforcement and fines system.
6. The petitioner deposes that under the impugned system motorists are issued with notices of violation and are required to pay penalties arising from alleged traffic offences without the matter first being determined by a court of competent jurisdiction which he believes that the determination of criminal liability and the imposition of penal sanctions are judicial functions vested exclusively in the courts by the Constitution.
7. The Petitioner avers that since 1 st June 2026, the Respondent has been and continues to actively enforce the impugned system, thereby exposing the Petitioner and other motorists to ongoing violations of our constitutional rights and unless restrained by this Honourable Court, the Respondent shall continue implementing and enforcing the impugned system.
8. The petitioner avers that the continued enforcement of the impugned system exposes him and other motorists to ongoing violations of constitutional rights and freedoms under Articles 47 and 50 and unless the conservatory orders sought are granted, the Respondent shall continue issuing penalties, collecting fines and taking adverse administrative action under a system whose constitutionality is the subject of challenge before this Court.
9. The petitioner deposes that the Petition raises substantial constitutional questions touching on the separation of powers, judicial authority, fair hearing and fair administrative action and its in the public interest that the constitutional issues raised herein be determined before further implementation and enforcement of the impugned system.
10. That no prejudice shall be suffered by the Respondent if the conservatory orders sought are granted, whereas I and the public stand to suffer continuing constitutional violations if the orders are denied.
The Respondents grounds of objection
11. The Respondent filed grounds of opposition dated 8 th June, 2026 wherein the state as follows:
12. The instant Petition shows that it regurgitates the issues that were raised in the High Court in Nairobi High Court Judicial Review Miscellaneous Application No. 485 of 2016 Republic Versus Cabinet Secretary for Transport, Infrastructure, Housing & Urban Development & Another Ex Parte Kenya National Union of Cooperatives Staff [2018] [KEHC9431] [KLR] (“the 2018 Instant Fines Petition”) on inter alia , the constitutionality of “instant fines” notice and the impugned enforcement framework under Sections 117 and 117A of The Traffic Act and the Traffic (Minor) Offences Rules 2016, specifically alleged violation of the right to fair administrative action, right to access justice, rights of arrested persons and right to a fair hearing. This Petition is res judicata.
13. In the said judgment delivered on 10th September 2018 by The Honourable Justice Mativo, this Court did not find the impugned sections of the Traffic Act, the impugned Rules and the enforcement actions thereunder unconstitutional and that based on the doctrine of res judicata this Court cannot entertain a re-litigation of the same issues in this Petition that it had finally disposed of in the 2018 Instant Fines Petition or ought to have been raised therein.
14. That further this Court is bereft of jurisdiction based on the doctrine of issue estoppel as the same issues in this Petition are the same issues that were determined by this Court in the 2018 Instant Fines Petition or ought to have been raised therein.
15. The 1 st Respondent also averred that their actions were in observance of delegation authority as provided by Article 94 of the Constitution where Article 94 (5) and (6) of the Constitution, provides that Parliament may delegate legislative authority to other entities, however, when such legislative authority is delegated, Parliament still retains residuary power to approve and regulate the exercise of such delegated powers.
16. The Respondent states that Pursuant to the provisions of Section 117 (1)(a) of the Traffic Act, the Cabinet Secretary for Roads and Transport published the Traffic (Minor) Offences Rules 2016 in Legal Notice No. 161 dated 23rd September 2016. The Cabinet Secretary, the Principal Secretary, State Department of Transport transmitted the Rules to the Clerk of the National Assembly and the Clerk of the Senate to be laid before the two houses of Parliament, pursuant to Section 11 of the Statutory Instruments Act.
17. That the Rules were laid before the National Assembly where they were subsequently referred to the Committee on Delegated Legislation (“the Committee”) for scrutiny in compliance with the provisions of Section 12 of the Statutory Instruments Act, 2013 and hence in the absence of any report from the Committee on Delegated Legislation and with no resolution of the House to annul or vary the instrument within the statutory window, the Rules having been duly laid took effect by operation of law upon the expiry of the prescribed twenty-eight sitting days. Consequently, the Rules continued in force as valid subsidiary legislation unless and until set aside by Parliament or a Court of Law.
18. The Respondent further states that the sections enjoy a presumption of constitutionality, that the Petitioner has failed to demonstrate how the impugned Sections 117 and 117A of The Traffic Act and the Traffic (Minor) Offences Rules 2016 are so manifestly irrational or disproportionate as to warrant a declaration of unconstitutionality and that Mere dissatisfaction with Legislative or Executive policy choices or isolated enforcement grievances cannot suffice to rebut the presumption of constitutionality attaching to duly enacted subsidiary legislation, the Traffic Act and the Rules, having been lawfully passed following robust public participation and parliamentary scrutiny, are the law.
19. The Respondent states that it is a State Corporation established under statute and charged with the regulation, coordination and enforcement of road transport and safety across the Republic, and is solely responsible for ensuring compliance with traffic laws and safeguarding the lives of road users. Pursuant to this mandate, the 1st Respondent is tasked with regulating public service vehicles, advising on policy, implementing regulations, and overseeing Kenya’s road transport system by ensuring safety, reliability, and efficiency through vehicle registration, inspections, driver licensing, public education, research, and the coordination of road safety initiatives.
20. The Respondent states that it is in consonance with its mandate and mission of continuously improving road safety, the 1st Respondent, vide the impugned notice dated 28th May 2026, announced its intention to launch the Automated Instant Fines Traffic Management System on 1st June 2026 pursuant to the provisions of Sections 5A, 117 & 117A of the Traffic Act and the Traffic (Minor Offences) Rules 2016 that prescribe Traffic (Minor Offences) and allow use of information technology and/or any electronic or mobile communications technology.
21. The Respondent states that the impugned system is firmly anchored in statute, including the Traffic Act and the subsidiary legislation made thereunder, and constitutes a lawful mechanism for detection, notification and payment of traffic infractions. That the system does not determine criminal liability, nor does it supplant the role of the courts, as claimed by the Petitioner but merely facilitates the detection and communication of alleged offences, leaving adjudication to a court of law and Motorists retain the unfettered right to decline any notification and elect trial before a competent court, thereby preserving the guarantees under Articles 47 and 50 of the Constitution.
22. The Respondent states that the orders sought have the effect of paralyzing a nationwide statutory enforcement regime, thereby exposing the public to heightened risk of road carnage and undermining lawful regulatory functions.
23. The Respondent states that the Petitioner is seeking through falsehood and misapprehension of the law to unduly restrict the exercise of the 1 st Respondent’s statutory mandate, that impugned system forms an integral component of a national road safety framework designed to enhance compliance, deter violations and reduce fatalities arising from traffic infractions.
24. The Respondent therefore asks this court to dismiss the Application and Petition for it does not disclose a case-warranting grant of conservatory orders.
Petitioner’s submissions
25. The Petitioner filed submissions dated 29 th June, 2026 in support of his application and in opposition to the 1 st Respondents grounds of opposition.
26. He condensed the issues for determination to three as follows:
i. Whether the Petitioner has satisfied the legal threshold for the grant of conservatory orders pending the hearing and determination of the Petition.
ii. Whether the present Petition and Application are barred by the doctrines of res judicata and issue estoppel.
iii. Whether the impugned Automated Traffic Enforcement System is constitutionally and statutorily valid, having regard to the 1 st Respondent’s statutory mandate, the doctrine of delegated legislation, parliamentary scrutiny under the Statutory Instruments Act, and the presumption of constitutionality.
27. On the 1 st Issue, the Petitioner submits that the Applications meets the threshold. He cites Giella v Cassman Brown & Co. Ltd , where the Court held that an applicant must establish a prima facie case with a probability of success, demonstrate that he stands to suffer irreparable injury incapable of being adequately compensated by an award of damages, and where the Court is in doubt, the matter should be determined on a balance of convenience. He also relies on Nguruman Limited v Jan Bonde Nielsen & 2 Others .
28. That the Petitioner has therefore raised a prima facie case. the petitioner states that the Petition Raises Weighty and Arguable Constitutional Questions by questioning whether executive agencies may lawfully exercise functions that are judicial in nature, that the enforcement continues to date exposing motorist to automated penalties and fines without judicial adjudication.
29. The petitioner submits that continuation of the enforcement but the Respondent would render the Petition nugatory under a regime whose constitutionality remains under challenge and this Court should not permit a challenged constitutional process to continue unchecked where its legality is the very issue awaiting determination.
30. The petitioner states that The Public Interest Favourably Supports Preservation It concerns a nationwide enforcement regime affecting every motorist within Kenya and the balance of probabilities therefore favours temporary preservation pending judicial determination and the Respondent will suffer no irreparable prejudice if enforcement is temporarily suspended pending hearing of the Petition, Conversely, if the orders are granted and the Petition subsequently fails, the 1st Respondent will remain at liberty to resume implementation of the system in accordance with the Court's determination.
31. On whether Present Petition and Application are Barred by the Doctrines of Res Judicata and Issue Estoppel, the Petitioner submits that The principles governing res judicata were authoritatively restated by the Supreme Court in Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others, where the Court held that for the doctrine to apply, there must be identity of the parties, the subject matter, the issues in controversy, and the title under which the parties litigate. The absence of any one of these elements is fatal to a plea of res judicata .
32. In the present case, those requirements have not been met. The Petitioner was not a party to the 2018 proceedings, nor is he litigating under the same title as the petitioner in that matter. More importantly, the constitutional questions raised in the present Petition arise from the implementation of the Automated Traffic Enforcement System operationalised on 1st June 2026, whose legality and constitutional validity have never been the subject of judicial determination. The Petition is therefore founded on a distinct factual matrix giving rise to a fresh constitutional controversy.
33. The Petitioner further states that that doctrine of estoppel only precludes the re-litigation of an issue that was distinctly put in issue and conclusively determined between the same parties or their privies. The present Petition challenges the constitutionality of an automated enforcement framework alleged to determine criminal liability and impose penal consequences without judicial intervention, thereby violating Articles 47, 50, 159 and 160 of the Constitution. Those questions arise from the present operational framework and could neither have been conclusively determined nor anticipated in the earlier proceedings.
34. The Petitioner's submission is therefore that Grounds 1–5 of the Grounds of Opposition are devoid of merit. The present Petition is founded on a new factual and constitutional controversy, is not barred by either res judicata or issue estoppel, and is properly before this Honourable Court for determination on its merits.
35. On the third issue, the Petitioner submits that, The 1 st Respondent, in Grounds 6–36 of its Grounds of Opposition, contends that the impugned Automated Traffic Enforcement System is lawful because it is implemented pursuant to the provisions of the Traffic Act, the National Transport and Safety Authority Act, and the Traffic (Minor Offences) Rules, 2016. It further argues that the impugned subsidiary legislation underwent parliamentary scrutiny under the Statutory Instruments Act and therefore enjoys a presumption of constitutionality. The Petitioner respectfully submits that these arguments are legally untenable as they overlook the fundamental principle that all legislation, whether primary or subsidiary, must conform to the Constitution.
36. That the Petitioner's principal complaint is not against the use of technology in traffic enforcement. Rather, it is against a system that allegedly permits an administrative authority to detect alleged offences, determine liability, impose penalties, accumulate demerit points and trigger punitive administrative sanctions without first affording an affected motorist a hearing before an independent and impartial court or tribunal. Such a process raises serious constitutional questions under Articles 47, 50, 159 and 160 of the Constitution, which cannot be answered merely by pointing to statutory provisions or subsidiary legislation.
37. The petitioner submits Article 159(1) of the Constitution vests judicial authority exclusively in the courts and tribunals established under the Constitution. Consequently, the determination of criminal liability and the imposition of penal consequences are matters that fall within the province of the Judiciary. Whereas the 1 st Respondent may investigate, regulate and enforce compliance with traffic laws, it cannot, under the guise of administrative efficiency, assume functions that are judicial in nature. To do so would offend the doctrine of separation of powers, which is one of the foundational principles underpinning Kenya's constitutional order.
38. That the presumption of constitutionality relied upon by the 1 st Respondent is not absolute. It is a rebuttable presumption which yields where a party demonstrates a credible allegation that legislation or administrative action infringes the Constitution. The role of this Honourable Court under Articles 23 and 165 of the Constitution is precisely to interrogate such allegations and determine whether the impugned legal framework complies with constitutional requirements and the Petitioner therefore submits that Grounds 6 – 36 of the Grounds of Opposition do not answer the constitutional grievances raised in the Petition.
39. The Petitioner submits that the grounds of opposition by the Respondent are devoid of merit and should be dismissed. He asks that the application of 5 th June, 2026 be upheld.
Analysis and determination
40. From the record, I find the following as the sole issue for determination:
a) Whether the petition herein is caught by the doctrine of Res judicata
41. The Petitioner faults the implementation by the Respondent of the notice dated 28 th May, 2026 titled “ implementation of minor traffic offences enforcement framework under Section 117 of the Traffic Act (CAP 403.”
42. The petitioner cites constitutional violations for the imposition of the automatic fines without judicial adjudication. It is important to note that the Petitioner raises no issue with the rules and regulations under Cap. 403, only the notice of implementation of the rules.
43. In fact the court in Republic v Cabinet Secretary for Transport, Infrastructure, Housing and Urban Development & another Ex-parte Kenya National Union of Co-operatives Staff [2018] KEHC 9431 (KLR), in upholding the rules as set out held that:
“I find and hold that no evidence was tendered to demonstrate that the impugned Rules were not adopted in a manner consistent with the constitutional and statutory requirements.”
44. A reproduction of the notice is as below:
“IMPLEMENTATION OF THE MINOR TRAFFIC OFFENCES ENFORCEMENT FRAMEWORK UNDER SECTION 117 OF THE TRAFFIC ACT (CAP. 403)”
Following the withdrawal of the earlier notice on the rollout of the Minor Traffic Offences System, the National Transport and Safety Authority (NTSA), in collaboration with the National Police Service (NPS), the Office of the Director of Public Prosecutions (ODPP), the Judiciary, and other relevant enforcement agencies, has reviewed the minor traffic offences and developed internal procedures to guide the implementation framework.The National Transport and Safety Authority (NTSA) wishes to notify members of the public that the Government will operationalize a modernized enforcement framework for minor traffic offences under Sections 117 and 117A of the Traffic Act (Cap. 403), effective 1 st June, 2026.
The primary objectives of this framework are to:1) Enhance road safety for all users,
2) Increase compliance with traffic laws,
3) Reduce congestion in traffic courts;
4) Promote transparency, accountability, and efficiency in traffic enforcement
Under the new framework, motorists who commit certain minor traffic offences will no longer need to appear in court immediately. Instead, they may receive a Police Notification of Traffic Offence. Offences can be detected either by police officers during routine enforcement or electronically via traffic cameras and other digital monitoring systems. Once sufficient evidence is gathered, the notification will be issued to the driver or the registered vehicle owner.
These notifications may be served in several ways, including personal delivery by police officers, affixing the notice to the vehicle, or electronically via SMS, email, or approved digital traffic enforcement platforms. Motorists are therefore strongly encouraged to ensure their contact details in the NTSA registration system are accurate and up to date.
Each notification will contain key details such as the nature of the offence, the date, time and location it occurred, the prescribed penalty, payment instructions, and response deadlines.
Upon receiving notice, motorists have two options: they may admit liability and pay the prescribed fine within the stipulated period, or they may dispute the allegation in court. If the motorist chooses to pay the fine, the matter can be settled without the need for a court appearance. However, the court retains the power to reduce or refund the penalty based on mitigating circumstances (if any) and administer demerit points against the driver's licence where appropriate .Failure to respond, pay fines, or appear in court when required may result in harsher penalties imposed by the COURTS. Motorists have the RIGHT to access evidence, such as photographs or video recordings, supporting the alleged offence.Finally, NTSA assures the public that all personal data collected will be handled in accordance with the Constitution and the Data Protection Act.
A detailed FAQ on the minor traffic offences is available on the NTSA website ( www.ntsa.go.ke ) for public use.
DIRECTOR GENERAL.”
45. The above snippet shows that the notice was published after consultation with several stakeholders including the Judiciary (see the underlined parts). The notice further gives the Petitioner and other motorists the option to plead guilty or defend themselves before a court of law, the court also has power to review penalties imposed by the Respondent so that it is not operating in a vacuum. This clearly answers the Petitioner’s question as presented in the petition.
46. It is this court’s view that the Petition is a reproduction of the complaints in Republic v Cabinet Secretary for Transport, Infrastructure, Housing and Urban Development & another Ex-parte Kenya National Union of Co-operatives Staff [2018] KEHC 9431 (KLR) , supra.
47. In the said case, the court stated thus:
“It is alleged that the Rules infringe rights conferred by Articles 48, 49 and 50 of the Constitution.
87. When a constitutional right is infringed, it is important to determine whether such infringement is justified in terms of Article 24 of the Constitution which provides that the rights in the Bill of Rights may be limited only in terms of law and only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including — the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose; and less restrictive means to achieve the purpose.
88. A reading of the Rules reveals that an offender is at liberty to plead guilty or not guilty. These being minor offences under the Act, bail is guaranteed. Upon paying cash bail, the suspected offender is bonded to attend Court, in which event; the matter will be tried and determined by the Court.
89. The question to be addressed is whether the alleged infringement of Article 48 and 49 Rights of the Constitution meets the Article 24 analysis test. Even though instant fines are a rapidly growing feature of our criminal justice system, they have received relatively little attention from the academic community or the justice sector in terms of understanding their effects. This is despite the fact that infringements are the only interaction most offenders especially those pleading guilty will have with the justice system. It is not disputed that instant fines are a low-cost, simple way of punishing minor offenders without, in most cases, recourse to the courts.
90. Instant fines can prevent minor cases reaching Court and save time and money for the offender and th
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1. The petitioner herein moved the court vide a petition dated 5 th June 2026 seeking the following reliefs:
A. A DECLARATION that the automated traffic enforcement and penalty system operated by the 1 st Respondent, which determines liability and imposes penal sanctions upon motorists without prior adjudication by a competent and independent court or tribunal, is unconstitutional and inconsistent with the Constitution of Kenya, 2010, and in particular with Articles 1, 2, 25(c), 47, 48, 50, 159, and 160 thereof.
B. A DECLARATION that the determination of criminal liability and the imposition of penal sanctions are judicial functions exclusively vested by Article 159(1) of the Constitution in the courts and tribunals established by or under the Constitution, and cannot be exercised by the 1 st Respondent or any other administrative agency.
C. A DECLARATION that the 1 st Respondent's operation of the impugned system constitutes an unconstitutional usurpation of judicial authority contrary to Articles 159 and 160 of the Constitution and a violation of the doctrine of separation of powers.
D. A DECLARATION that the impugned system violates the Petitioner's rights under Articles 25(c), 27, 28, 35, 47, 48, and 50 of the Constitution.
E. AN ORDER OF PROHIBITION, directed to the 1 st Respondent, its officers, servants, agents, assigns, and all persons acting under its authority or direction, prohibiting the 1 st Respondent from implementing, enforcing, operating, levying, collecting, or otherwise giving effect to the impugned automated traffic enforcement and penalty system, or any similar mechanism that makes binding determinations of liability and imposes penal sanctions upon motorists without prior judicial determination by a competent and independent court or tribunal.
F. A DECLARATION that all fines, penalties, sanctions, demerit points, licence restrictions, registration restrictions, or other adverse consequences imposed upon the Petitioner or any other person pursuant to the impugned automated system are unconstitutional, unlawful, null and void ab initio and of no force and effect.
G. AN ORDER directing the 1 st Respondent to refund, within ninety (90) days of the date of this order, all monies collected from motorists pursuant to the impugned system, together with interest thereon at court rates from the date of collection.
H. AN ORDER directing the 1 st Respondent to take immediate steps to expunge from its records all demerit points, penalty notices, licence restrictions. registration restrictions, and adverse notations imposed pursuant to the impugned system.
I. COSTS of this Petition, including all hearing fees, counsel fees, and disbursements, on a full indemnity basis, to be borne by the Respondents jointly and severally.
J. INTEREST on all monetary orders at court rates from the date of the judgment of this Honourable Court until the date of full satisfaction.
K. General damages for violation of the Petitioners' constitutional rights.
L. SUCH FURTHER AND OTHER RELIEF as this Honourable Court may deem just, expedient, and appropriate in all the circumstances, including such structural or supervisory orders as the Court may consider necessary to give effect to the Constitution and to prevent a recurrence of the violations identified herein.
2. Contemporaneously with the filing of the petition, the petitioner filed a Notice of Motion application dated 5 th June, 2026 filed under certificate of urgency, seeking the following orders: -
a) THAT this Application be certified urgent and heard ex-parte in the first instance.
b) THAT pending the inter partes hearing and determination of this Application, this Honourable Court be pleased to issue a Conservatory Order restraining the Respondent, whether by itself, its officers, servants, agents or any person acting under its authority, from enforcing, collecting, processing, implementing, acting upon or giving any effect whatsoever to any penalties, fines, sanctions, demerit points, licence restrictions, suspensions or any other adverse administrative actions arising from the impugned automated traffic enforcement and fines system.
c) THAT this Honourable Court be pleased to issue a Conservatory Order restraining the Respondent, whether by itself, its officers, servants, agents or any person acting under its authority, from enforcing, collecting, processing, implementing, acting upon or giving any effect whatsoever to any penalties, fines, sanctions, demerit points, licence restrictions, suspensions or any other adverse administrative actions arising from the impugned automated traffic enforcement and fines system.
d) THAT pending the inter partes hearing and determination of this Application, the Respondent, its officers, servants, agents and/or any persons acting under their instructions or on their behalf, be restrained from issuing, processing, enforcing, collecting or in any manner whatsoever acting upon any notices of violation, penalties or sanctions pursuant to the impugned automated traffic enforcement system.
e) THAT the Respondent, its officers, servants, agents and/or any persons acting under their instructions or on their behalf, be restrained from issuing, processing, enforcing, collecting or in any manner whatsoever acting upon any notices of violation, penalties or sanctions pursuant to the impugned automated traffic enforcement system.
f) THAT upon the inter partes hearing of this Application, this Honourable Court be pleased to grant a substantive Conservatory Order restraining the Respondent from enforcing the impugned automated traffic enforcement and fines system pending the hearing and determination of the Petition.
g) THAT this Honourable Court be pleased to grant such further or other orders as it may deem just and expedient in the circumstances.
h) THAT the costs of this Application be in the cause.
3. Upon a preliminary consideration of the application, the court certified the matter as urgent, and gave directions on service, the 1 st Respondent entered appearance and filed grounds of objection, raising the issue of res judicata .Parties took directions on submissions to dispose of the application of 5 th June, 2026.
Petitioner’s Case
4. The application is supported the affidavit of GEORGE SHITANDI, sworn on even date and the grounds on the face of the application.
5. The Petitioner/Applicant asserts that the Respondent has established and operationalized an automated traffic enforcement system through which alleged traffic offences are detected electronically and penalties imposed upon motorists, which the petition herein challenges the constitutionality and legality of the said automated traffic enforcement and fines system.
6. The petitioner deposes that under the impugned system motorists are issued with notices of violation and are required to pay penalties arising from alleged traffic offences without the matter first being determined by a court of competent jurisdiction which he believes that the determination of criminal liability and the imposition of penal sanctions are judicial functions vested exclusively in the courts by the Constitution.
7. The Petitioner avers that since 1 st June 2026, the Respondent has been and continues to actively enforce the impugned system, thereby exposing the Petitioner and other motorists to ongoing violations of our constitutional rights and unless restrained by this Honourable Court, the Respondent shall continue implementing and enforcing the impugned system.
8. The petitioner avers that the continued enforcement of the impugned system exposes him and other motorists to ongoing violations of constitutional rights and freedoms under Articles 47 and 50 and unless the conservatory orders sought are granted, the Respondent shall continue issuing penalties, collecting fines and taking adverse administrative action under a system whose constitutionality is the subject of challenge before this Court.
9. The petitioner deposes that the Petition raises substantial constitutional questions touching on the separation of powers, judicial authority, fair hearing and fair administrative action and its in the public interest that the constitutional issues raised herein be determined before further implementation and enforcement of the impugned system.
10. That no prejudice shall be suffered by the Respondent if the conservatory orders sought are granted, whereas I and the public stand to suffer continuing constitutional violations if the orders are denied.
The Respondents grounds of objection
11. The Respondent filed grounds of opposition dated 8 th June, 2026 wherein the state as follows:
12. The instant Petition shows that it regurgitates the issues that were raised in the High Court in Nairobi High Court Judicial Review Miscellaneous Application No. 485 of 2016 Republic Versus Cabinet Secretary for Transport, Infrastructure, Housing & Urban Development & Another Ex Parte Kenya National Union of Cooperatives Staff [2018] [KEHC9431] [KLR] (“the 2018 Instant Fines Petition”) on inter alia , the constitutionality of “instant fines” notice and the impugned enforcement framework under Sections 117 and 117A of The Traffic Act and the Traffic (Minor) Offences Rules 2016, specifically alleged violation of the right to fair administrative action, right to access justice, rights of arrested persons and right to a fair hearing. This Petition is res judicata.
13. In the said judgment delivered on 10th September 2018 by The Honourable Justice Mativo, this Court did not find the impugned sections of the Traffic Act, the impugned Rules and the enforcement actions thereunder unconstitutional and that based on the doctrine of res judicata this Court cannot entertain a re-litigation of the same issues in this Petition that it had finally disposed of in the 2018 Instant Fines Petition or ought to have been raised therein.
14. That further this Court is bereft of jurisdiction based on the doctrine of issue estoppel as the same issues in this Petition are the same issues that were determined by this Court in the 2018 Instant Fines Petition or ought to have been raised therein.
15. The 1 st Respondent also averred that their actions were in observance of delegation authority as provided by Article 94 of the Constitution where Article 94 (5) and (6) of the Constitution, provides that Parliament may delegate legislative authority to other entities, however, when such legislative authority is delegated, Parliament still retains residuary power to approve and regulate the exercise of such delegated powers.
16. The Respondent states that Pursuant to the provisions of Section 117 (1)(a) of the Traffic Act, the Cabinet Secretary for Roads and Transport published the Traffic (Minor) Offences Rules 2016 in Legal Notice No. 161 dated 23rd September 2016. The Cabinet Secretary, the Principal Secretary, State Department of Transport transmitted the Rules to the Clerk of the National Assembly and the Clerk of the Senate to be laid before the two houses of Parliament, pursuant to Section 11 of the Statutory Instruments Act.
17. That the Rules were laid before the National Assembly where they were subsequently referred to the Committee on Delegated Legislation (“the Committee”) for scrutiny in compliance with the provisions of Section 12 of the Statutory Instruments Act, 2013 and hence in the absence of any report from the Committee on Delegated Legislation and with no resolution of the House to annul or vary the instrument within the statutory window, the Rules having been duly laid took effect by operation of law upon the expiry of the prescribed twenty-eight sitting days. Consequently, the Rules continued in force as valid subsidiary legislation unless and until set aside by Parliament or a Court of Law.
18. The Respondent further states that the sections enjoy a presumption of constitutionality, that the Petitioner has failed to demonstrate how the impugned Sections 117 and 117A of The Traffic Act and the Traffic (Minor) Offences Rules 2016 are so manifestly irrational or disproportionate as to warrant a declaration of unconstitutionality and that Mere dissatisfaction with Legislative or Executive policy choices or isolated enforcement grievances cannot suffice to rebut the presumption of constitutionality attaching to duly enacted subsidiary legislation, the Traffic Act and the Rules, having been lawfully passed following robust public participation and parliamentary scrutiny, are the law.
19. The Respondent states that it is a State Corporation established under statute and charged with the regulation, coordination and enforcement of road transport and safety across the Republic, and is solely responsible for ensuring compliance with traffic laws and safeguarding the lives of road users. Pursuant to this mandate, the 1st Respondent is tasked with regulating public service vehicles, advising on policy, implementing regulations, and overseeing Kenya’s road transport system by ensuring safety, reliability, and efficiency through vehicle registration, inspections, driver licensing, public education, research, and the coordination of road safety initiatives.
20. The Respondent states that it is in consonance with its mandate and mission of continuously improving road safety, the 1st Respondent, vide the impugned notice dated 28th May 2026, announced its intention to launch the Automated Instant Fines Traffic Management System on 1st June 2026 pursuant to the provisions of Sections 5A, 117 & 117A of the Traffic Act and the Traffic (Minor Offences) Rules 2016 that prescribe Traffic (Minor Offences) and allow use of information technology and/or any electronic or mobile communications technology.
21. The Respondent states that the impugned system is firmly anchored in statute, including the Traffic Act and the subsidiary legislation made thereunder, and constitutes a lawful mechanism for detection, notification and payment of traffic infractions. That the system does not determine criminal liability, nor does it supplant the role of the courts, as claimed by the Petitioner but merely facilitates the detection and communication of alleged offences, leaving adjudication to a court of law and Motorists retain the unfettered right to decline any notification and elect trial before a competent court, thereby preserving the guarantees under Articles 47 and 50 of the Constitution.
22. The Respondent states that the orders sought have the effect of paralyzing a nationwide statutory enforcement regime, thereby exposing the public to heightened risk of road carnage and undermining lawful regulatory functions.
23. The Respondent states that the Petitioner is seeking through falsehood and misapprehension of the law to unduly restrict the exercise of the 1 st Respondent’s statutory mandate, that impugned system forms an integral component of a national road safety framework designed to enhance compliance, deter violations and reduce fatalities arising from traffic infractions.
24. The Respondent therefore asks this court to dismiss the Application and Petition for it does not disclose a case-warranting grant of conservatory orders.
Petitioner’s submissions
25. The Petitioner filed submissions dated 29 th June, 2026 in support of his application and in opposition to the 1 st Respondents grounds of opposition.
26. He condensed the issues for determination to three as follows:
i. Whether the Petitioner has satisfied the legal threshold for the grant of conservatory orders pending the hearing and determination of the Petition.
ii. Whether the present Petition and Application are barred by the doctrines of res judicata and issue estoppel.
iii. Whether the impugned Automated Traffic Enforcement System is constitutionally and statutorily valid, having regard to the 1 st Respondent’s statutory mandate, the doctrine of delegated legislation, parliamentary scrutiny under the Statutory Instruments Act, and the presumption of constitutionality.
27. On the 1 st Issue, the Petitioner submits that the Applications meets the threshold. He cites Giella v Cassman Brown & Co. Ltd , where the Court held that an applicant must establish a prima facie case with a probability of success, demonstrate that he stands to suffer irreparable injury incapable of being adequately compensated by an award of damages, and where the Court is in doubt, the matter should be determined on a balance of convenience. He also relies on Nguruman Limited v Jan Bonde Nielsen & 2 Others .
28. That the Petitioner has therefore raised a prima facie case. the petitioner states that the Petition Raises Weighty and Arguable Constitutional Questions by questioning whether executive agencies may lawfully exercise functions that are judicial in nature, that the enforcement continues to date exposing motorist to automated penalties and fines without judicial adjudication.
29. The petitioner submits that continuation of the enforcement but the Respondent would render the Petition nugatory under a regime whose constitutionality remains under challenge and this Court should not permit a challenged constitutional process to continue unchecked where its legality is the very issue awaiting determination.
30. The petitioner states that The Public Interest Favourably Supports Preservation It concerns a nationwide enforcement regime affecting every motorist within Kenya and the balance of probabilities therefore favours temporary preservation pending judicial determination and the Respondent will suffer no irreparable prejudice if enforcement is temporarily suspended pending hearing of the Petition, Conversely, if the orders are granted and the Petition subsequently fails, the 1st Respondent will remain at liberty to resume implementation of the system in accordance with the Court's determination.
31. On whether Present Petition and Application are Barred by the Doctrines of Res Judicata and Issue Estoppel, the Petitioner submits that The principles governing res judicata were authoritatively restated by the Supreme Court in Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others, where the Court held that for the doctrine to apply, there must be identity of the parties, the subject matter, the issues in controversy, and the title under which the parties litigate. The absence of any one of these elements is fatal to a plea of res judicata .
32. In the present case, those requirements have not been met. The Petitioner was not a party to the 2018 proceedings, nor is he litigating under the same title as the petitioner in that matter. More importantly, the constitutional questions raised in the present Petition arise from the implementation of the Automated Traffic Enforcement System operationalised on 1st June 2026, whose legality and constitutional validity have never been the subject of judicial determination. The Petition is therefore founded on a distinct factual matrix giving rise to a fresh constitutional controversy.
33. The Petitioner further states that that doctrine of estoppel only precludes the re-litigation of an issue that was distinctly put in issue and conclusively determined between the same parties or their privies. The present Petition challenges the constitutionality of an automated enforcement framework alleged to determine criminal liability and impose penal consequences without judicial intervention, thereby violating Articles 47, 50, 159 and 160 of the Constitution. Those questions arise from the present operational framework and could neither have been conclusively determined nor anticipated in the earlier proceedings.
34. The Petitioner's submission is therefore that Grounds 1–5 of the Grounds of Opposition are devoid of merit. The present Petition is founded on a new factual and constitutional controversy, is not barred by either res judicata or issue estoppel, and is properly before this Honourable Court for determination on its merits.
35. On the third issue, the Petitioner submits that, The 1 st Respondent, in Grounds 6–36 of its Grounds of Opposition, contends that the impugned Automated Traffic Enforcement System is lawful because it is implemented pursuant to the provisions of the Traffic Act, the National Transport and Safety Authority Act, and the Traffic (Minor Offences) Rules, 2016. It further argues that the impugned subsidiary legislation underwent parliamentary scrutiny under the Statutory Instruments Act and therefore enjoys a presumption of constitutionality. The Petitioner respectfully submits that these arguments are legally untenable as they overlook the fundamental principle that all legislation, whether primary or subsidiary, must conform to the Constitution.
36. That the Petitioner's principal complaint is not against the use of technology in traffic enforcement. Rather, it is against a system that allegedly permits an administrative authority to detect alleged offences, determine liability, impose penalties, accumulate demerit points and trigger punitive administrative sanctions without first affording an affected motorist a hearing before an independent and impartial court or tribunal. Such a process raises serious constitutional questions under Articles 47, 50, 159 and 160 of the Constitution, which cannot be answered merely by pointing to statutory provisions or subsidiary legislation.
37. The petitioner submits Article 159(1) of the Constitution vests judicial authority exclusively in the courts and tribunals established under the Constitution. Consequently, the determination of criminal liability and the imposition of penal consequences are matters that fall within the province of the Judiciary. Whereas the 1 st Respondent may investigate, regulate and enforce compliance with traffic laws, it cannot, under the guise of administrative efficiency, assume functions that are judicial in nature. To do so would offend the doctrine of separation of powers, which is one of the foundational principles underpinning Kenya's constitutional order.
38. That the presumption of constitutionality relied upon by the 1 st Respondent is not absolute. It is a rebuttable presumption which yields where a party demonstrates a credible allegation that legislation or administrative action infringes the Constitution. The role of this Honourable Court under Articles 23 and 165 of the Constitution is precisely to interrogate such allegations and determine whether the impugned legal framework complies with constitutional requirements and the Petitioner therefore submits that Grounds 6 – 36 of the Grounds of Opposition do not answer the constitutional grievances raised in the Petition.
39. The Petitioner submits that the grounds of opposition by the Respondent are devoid of merit and should be dismissed. He asks that the application of 5 th June, 2026 be upheld.
Analysis and determination
40. From the record, I find the following as the sole issue for determination:
a) Whether the petition herein is caught by the doctrine of Res judicata
41. The Petitioner faults the implementation by the Respondent of the notice dated 28 th May, 2026 titled “ implementation of minor traffic offences enforcement framework under Section 117 of the Traffic Act (CAP 403.”
42. The petitioner cites constitutional violations for the imposition of the automatic fines without judicial adjudication. It is important to note that the Petitioner raises no issue with the rules and regulations under Cap. 403, only the notice of implementation of the rules.
43. In fact the court in Republic v Cabinet Secretary for Transport, Infrastructure, Housing and Urban Development & another Ex-parte Kenya National Union of Co-operatives Staff [2018] KEHC 9431 (KLR), in upholding the rules as set out held that:
“I find and hold that no evidence was tendered to demonstrate that the impugned Rules were not adopted in a manner consistent with the constitutional and statutory requirements.”
44. A reproduction of the notice is as below:
“IMPLEMENTATION OF THE MINOR TRAFFIC OFFENCES ENFORCEMENT FRAMEWORK UNDER SECTION 117 OF THE TRAFFIC ACT (CAP. 403)”
Following the withdrawal of the earlier notice on the rollout of the Minor Traffic Offences System, the National Transport and Safety Authority (NTSA), in collaboration with the National Police Service (NPS), the Office of the Director of Public Prosecutions (ODPP), the Judiciary, and other relevant enforcement agencies, has reviewed the minor traffic offences and developed internal procedures to guide the implementation framework.The National Transport and Safety Authority (NTSA) wishes to notify members of the public that the Government will operationalize a modernized enforcement framework for minor traffic offences under Sections 117 and 117A of the Traffic Act (Cap. 403), effective 1 st June, 2026.
The primary objectives of this framework are to:1) Enhance road safety for all users,
2) Increase compliance with traffic laws,
3) Reduce congestion in traffic courts;
4) Promote transparency, accountability, and efficiency in traffic enforcement
Under the new framework, motorists who commit certain minor traffic offences will no longer need to appear in court immediately. Instead, they may receive a Police Notification of Traffic Offence. Offences can be detected either by police officers during routine enforcement or electronically via traffic cameras and other digital monitoring systems. Once sufficient evidence is gathered, the notification will be issued to the driver or the registered vehicle owner.
These notifications may be served in several ways, including personal delivery by police officers, affixing the notice to the vehicle, or electronically via SMS, email, or approved digital traffic enforcement platforms. Motorists are therefore strongly encouraged to ensure their contact details in the NTSA registration system are accurate and up to date.
Each notification will contain key details such as the nature of the offence, the date, time and location it occurred, the prescribed penalty, payment instructions, and response deadlines.
Upon receiving notice, motorists have two options: they may admit liability and pay the prescribed fine within the stipulated period, or they may dispute the allegation in court. If the motorist chooses to pay the fine, the matter can be settled without the need for a court appearance. However, the court retains the power to reduce or refund the penalty based on mitigating circumstances (if any) and administer demerit points against the driver's licence where appropriate .Failure to respond, pay fines, or appear in court when required may result in harsher penalties imposed by the COURTS. Motorists have the RIGHT to access evidence, such as photographs or video recordings, supporting the alleged offence.Finally, NTSA assures the public that all personal data collected will be handled in accordance with the Constitution and the Data Protection Act.
A detailed FAQ on the minor traffic offences is available on the NTSA website ( www.ntsa.go.ke ) for public use.
DIRECTOR GENERAL.”
45. The above snippet shows that the notice was published after consultation with several stakeholders including the Judiciary (see the underlined parts). The notice further gives the Petitioner and other motorists the option to plead guilty or defend themselves before a court of law, the court also has power to review penalties imposed by the Respondent so that it is not operating in a vacuum. This clearly answers the Petitioner’s question as presented in the petition.
46. It is this court’s view that the Petition is a reproduction of the complaints in Republic v Cabinet Secretary for Transport, Infrastructure, Housing and Urban Development & another Ex-parte Kenya National Union of Co-operatives Staff [2018] KEHC 9431 (KLR) , supra.
47. In the said case, the court stated thus:
“It is alleged that the Rules infringe rights conferred by Articles 48, 49 and 50 of the Constitution.
87. When a constitutional right is infringed, it is important to determine whether such infringement is justified in terms of Article 24 of the Constitution which provides that the rights in the Bill of Rights may be limited only in terms of law and only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including — the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose; and less restrictive means to achieve the purpose.
88. A reading of the Rules reveals that an offender is at liberty to plead guilty or not guilty. These being minor offences under the Act, bail is guaranteed. Upon paying cash bail, the suspected offender is bonded to attend Court, in which event; the matter will be tried and determined by the Court.
89. The question to be addressed is whether the alleged infringement of Article 48 and 49 Rights of the Constitution meets the Article 24 analysis test. Even though instant fines are a rapidly growing feature of our criminal justice system, they have received relatively little attention from the academic community or the justice sector in terms of understanding their effects. This is despite the fact that infringements are the only interaction most offenders especially those pleading guilty will have with the justice system. It is not disputed that instant fines are a low-cost, simple way of punishing minor offenders without, in most cases, recourse to the courts.
90. Instant fines can prevent minor cases reaching Court and save time and money for the offender and th
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