' REPUBLIC OF KENYA
IN THE HIGH COURT
AT BUNGOMA
JUDICIAL REVIEW DIVISION
HCJRNO. E011 OF 2024
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF PROHIBITION AND MANDAMUS
AND
IN THE MATTER OF: ARTICLES 2(1) AND 2(2), 10, 19, 20, 21, 22, 23, 25 (a) and (c), 29 (d), 47, 50 and 159 OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF SECTION 4(1), (2) AND (3), 67 AND 9(1) OF THE FAIR ADMINISTRATIVE ACTION ACT NO. 4 OF 2015
AND
IN THE MATTER OF SECTIONS 56 & 58 OF THE TRAFFIC ACT CAP 403 LAWS OF KENYA
AND
IN THE MATTER OF: REGULATIONS 14 & 15 OF THE KENYA ROADS (KENYA NATIONAL HIGHWAYS AUTHORITY) REGULATIONS, 2013
AND
IN THE MATTER OF ORDER 55 OF THE CIVIL PROCEDURE RULES, 2010
AND
IN THE MATTER OF SECTION 8 & 9 OF THE LAW REFORM ACT, CHAPTER 26 LAWS OF KENYA
AND
IN THE MATTER OF: THE IMPOSITION OF A FINE FOR AN ALLEGED OFFENCE WITHOUT TRIAL.
BETWEEN
REPUBLIC……………………………………………………….. APPLICANT
VERSUS
THE KENYA NATIONAL
HIGHWAYS AUTHORITY…………………….……………..RESPONDENT
AND
LYDIA NAMONO…………………………….……EX-PARTE APPLICANT
JUDGEMENT
Introduction
1. The Ex-parte Applicant herein through her Notice of Motion application dated 27th November 2024, seeks the following reliefs:-
a. THAT this Honourable Court be pleased to issue an Order of MANDAMUS to compel the Respondent herein to release back to the ex-parte Applicant her motor vehicle registration number UBK 750N make Mitsubishi Fuso.
b. THAT this Honourable Court be pleased to issue an Order of PROHIBITION to prohibit and prevent the Respondent herein or other persons/state actors acting at its behest from forcefully impounding and/or detaining the ex-parte Applicant’s motor vehicle registration number UBK 750N make Mitsubishi Fuso without following due procedure as provided in law.
c. THAT the costs of this application be provided for.
2. The motion application was supported by the Statutory Statement and Verifying Affidavit of Lydia Namono, the ex-parte Applicant herein both dated 20th November 2024, and filed in Court on the even date.
Ex-parte Applicant’s case
3. The ex-parte Applicant is engaged in the transport business which she does with motor vehicle registration number UBK 750N which she utilizes commercially to generate revenue.
4. On or about the 12th May 2024, the ex-parte Applicant''s motor vehicle was impounded by officers of the Respondent herein on its way from Naitiri near Sikhendu within the Republic of Kenya where it was transporting a client''s molasses for allegedly being overloaded. The officers of the Respondent herein caused the said motor vehicle to be driven and/or taken to its Webuye weighbridge where it was weighed and immediately on the same day, the Applicant was ordered to pay the Respondent a sum of Kshs. 2, 773, 755.00/= as fine for overloading with no further explanation. The ticket was printed and dated 14th May 2024 at 19:06:49.
5. The ex-parte Applicant argues that she was never accorded an opportunity to answer to the preferred charges and was neither provided with a basis for the fine imposed as the same is contrary to the scale provided for under the Traffic Act. She further argues that she was not accorded an opportunity to be heard before the demand for Kshs. 2, 773, 755.00/= was made which goes against the rules of natural justice and the Fair Administrative Action Act as enshrined by Articles 47 and 50 of the Constitution of Kenya, thus the Respondent arrogated itself the role of both judge, jury and executioner as it decreed that the ex-parte Applicant had committed an offence of overloading and immediately proceeded to punish her for the said offence by imposing a penalty/fine for the offences it had condemned the ex-parte Applicant for.
6. The ex-parte Applicant argues that the Respondent acted ultra vires to its powers as provided for by law as the relevant provisions of the Kenya Roads (Kenya National Highways Authority) Regulations, 2013 that initially provided the Respondent with the authority to decree a commission of an offence and proceed to impose a penalty/fine without trial were long declared unconstitutional hence the action of the respondent was null and void ab initio and such, the Respondent herein had no authority to accuse the ex-parte Applicant of an offence and proceed to convict and punish her for the same without trial.
7. Finally, the ex-parte Applicant avers that, her motor vehicle has been detained illegally at the Respondent''s yard in Webuye since May 2024 causing her to suffer grave economic loss and the same may similarly be auctioned and sold at any time to recover the fines imposed without affording her a fair trial. She urges this Court, in the interest of justice, to grant her the orders sought so as avert a miscarriage of justice.
Respondent’s case
8. Paul Muriungi Mwirigi, swore a Replying Affidavit on 20th February 2025 in response to the Ex Parte Applicant’s application. He deposed that he is an employee of Ms. lnterways Works Limited which has been contracted by Kenya National Highways Authority to manage designated weighbridges in Kenya on it’s behalf by way of monitoring and enforcing compliance of the motor vehicles using the roads in Kenya. That Ms Interways Works Limited mandate is to ensure compliance by motor vehicles, with the load capacity designated for each such motor vehicles as specified in the relevant schedules under the provisions of Section 4 (2) (a), (b), (c), (d), (f), (g), (h),(j), (l) and (m) and 50 of the Kenya Roads Act,2007, as read with provisions of Sections 52 (1)(a), 55 (2) and 56 (1) & (2) of the Traffic Act, Chapter 403, Laws of Kenya, and in the event of none compliance to impose corresponding prescribed penalties as set out in the proviso to section 58 (1) thereof, as read with Section 58 (2) thereof, and the East Africa Community Vehicle Load Control Act, 2016 Sections 3,4,5,6,7,8,9, l0, l1, 12, 13, 14, 15, 16, 17 and 25 thereof, as read with Article 2 (6) of the Constitution of Kenya, which allows the said later legislation passed by the East African community to have the force of law, in Kenya. In addition, he deposed that he is also in charge of all such motor vehicles held or detained at Webuye Police station arising from any of the responsibilities of the Respondent as shown in the referred legislation.
9. It was the Respondent’s case that, on 11th May 2024, at around 16.00 hours Mr Mwirigi received information of suspected overloaded trucks that were about to depart from Naitiri Sugar Company travelling along Kitale - Kamukuywa - Webuye Highway. Pursuant to this information, he secured an appropriate surveillance team constituting the OCS of Webuye Weighbridge Police Station, Chief Inspector Mark Rotich, and they proceeded to act on the information using the Respondent''s motor vehicle registration number KDK 411 Z in this operation. (Produced in Court an automatically generated trip record of the said motor vehicle fitted in the car showing the entire period of surveillance on 12th May 2024 up to the time they concluded the entire operations leading to the ultimate detention of the said motor vehicle the subject of this proceedings as PMM/1).
10. The Respondent posits that on 12th May 2024 between 02.00-02.30 hours as they were patrolling along Kitale - Kamukuywa - Webuye Highway they intercepted and stopped motor vehicle registration number UBK 750 N, a few kilometres from Naitiri Sugar Company, between Kitale and Kamukuywa town and the said vehicle was loaded with molasses. That while driving the Respondent''s motor vehicle registration number KDK 411 Z, they sounded an alarm for the driver of motor vehicle registration number UBK 750 N to stop, to which he complied, but prior to their engagement with him, the driver quickly stepped out of the motor vehicle registration number UBK 750 N and escaped. This prompted the Respondent to summon reinforcements to secure the motor vehicle registration number UBK 750 N and the molasses load.
11. Mr Mwirigi further deposed that later on 12th May 2024, he received information that one person by the name Daniel Fred Masinde, had approached the reinforcement team alleging to have been sent by the owner of the motor vehicle registration number UBK 750 N to check on it. That at the request of the enforcement team, the said man agreed to drive the motor vehicle registration number UBK 750 N to Webuye Weighbridge Police Station where the motor vehicle and its load was duly weighed by the Respondent’s agent working with Ms. Interways Works Limited at 19:06:49 hours in the presence of the owner’s driver/agent namely, Daniel Fred Maside, of National Identity 34005420. It was established that motor vehicle registration number UBK 750 N was overloaded as follows:
“Its Gross Vehicle Weight (GVWI) was 45,040 Kgs, instead of the legal permissible limit of 30,000 Kgs on the Gross Vehicle Weight, had an excess overload of 15,040 Kgs, whose statutory prescribed overload penalty fees for the said weight in excess is USD 21,132.85 being an equivalent of Ksh.2,773,755.00 at a then prevailing dollar rate of Ksh.131.2532 per US dollar, plus the Ksh.50- convenience fee payable under the E-citizen portal, bringing the amount due at Ksh.2,773,805.00”
12. The Respondent argues that the driver/agent of the owner of motor vehicle registration number UBK 750 N was issued with a weighbridge ticket specifying the excess loads, and the penalties were computed thereon as per the copy of the weighbridge certificate of the penalty as constituted in the weighbridge ticket already annexed in the supporting affidavit of the ex-parte Applicant as LN 2(a) and (b) including the copy of the National Identity Card of the driver of the motor vehicle thereon, the Overload Fees invoice, and the pay bill Mpesa account to which the payment is to be made directly to the Government of Kenya as prescribed by law, being the Government designated E-citizen Mpesa account. He also produced the more legible copies of the said documents in Court as PMM/2 (a), (b) and (c).
13. The Respondent maintains that the motor vehicle registration number UBK 750 N loaded with molasses was intercepted along Sirare-Kisumu-Webuye-Kitale-Lodwar-Sudan, Northern Trunk Road Network which the East Africa Community Vehicle Load Control Act 2016 applies within the meaning of the First Schedule Item No. 6 at page 30 of the said statute, and the same is enforceable within the meaning of Section 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 25 thereof as read with Article 2(6) of the Constitution of Kenya.
14. The Respondent posits that according to the weighbridge ticked issued, the ex-parte Applicant is the registered owner of the motor vehicle registration number UBK 750 N and that the said motor vehicle has been driven and used along Regional Trunk Road Network making the applicable law the East Africa Community Vehicle Load Control Act 2016 which explicitly decriminalizes overloading and does not require a party to be present before any Court before a penalty is imposed on the owner of the motor vehicle. The Respondent places reliance on Section 17 of the EACVLC, 2016 which provides for a procedure in cases of vehicle overloading; a party pays the overload penalty, and in the event that the owner of the offending motor vehicle disputes the computation of the penalty as in this case, then she/he has to lodge an appeal against the computation of the penalty in a Court with unlimited jurisdiction under the Constitution of Kenya, as there is no prescribed mechanism for such dispute resolution at the level of appeal by the National Road Authority and this being a case of Kenya National Highway Authority, the dints of the East African Community Vehicle Load Control (Enforcement Measures) Regulations, 2018 are applicable.
15. The Respondent argues that as per the dints of Section 17(4) (a) and (b) of the Act, the ex-parte Applicant was supposed to pay the disputed fees without prejudice then lodge the requisite appeal as a basis of release of the motor vehicle registration number UBK 750 N or in the alternative, have the motor vehicle registration number UBK 750 N remain detained pursuant to the powers of such detention vested upon the Respondent in consultation with the Police, until the determination of the appeal.
16. The Respondent argues that as per Section 17 (6) of the Act an overloaded vehicle shall be detained without charge for a period of 3 days and thereafter a fee of 50 USD shall be charged for each extra date and the same is expected to be pay along with the disputed penalty charged for excess load. The Respondent posits that in this case the ex-parte Applicant’s motor vehicle registration number UBK 750 N has as at 5th December 2024, accumulated parking fees of 204 days placing the total amount owed as parking fees as Kshs. 1, 319,167/=.
17. The Respondent argues that it has not accorded itself the role of a judge or jury and executioner in the case of the ex-parte Applicant as the ex-parte Applicant was, by operation of law, been afforded an opportunity to be present at the time of weighing the said motor vehicle registration number UBK 750 N, through her chosen agent or her own personal capacity and given that she contested the handed overload penalties she would have done so as the applicable statues allow so and that the ex-parte Applicant arguments are anchored at a time in the past, when regulations in place were not anchored in substantive legislative law and the Constitution.
18. On 26th March 2025, the parties were directed to canvass the Motion application dated 27th November 2024, by way of written submissions. On my scrutiny of the Court record and the Court Tracking System, only the ex-parte Applicant filed her written submissions. The Respondent did not comply with the Court orders.
Ex-parte Applicant submissions
19. Vide written submissions dated 23rd May 2025, Counsel for the ex-parte Applicant submitted on three (3) issues of whether the Respondent''s actions of imposing a fine/penalty without trial is lawful and whether the present application is merited and whether the orders sought should issue.
20. On the first issue, Counsel submits that it is not in dispute that the ex-parte Applicant''s motor vehicle registration no. UBK 750N was impounded by the Respondent along the Kitale -Webuye Highway and caused the same to be driven to Webuye where it was allegedly weighed, found to be overloaded and was detained. That the Ex Parte Applicant was then ordered to pay a penalty/fine of Kshs. 2, 773, 805.00/=. Further, it is not in contention that overloading was the offence upon which the ex-parte Applicant was charged and convicted of by the Respondent and that the fine/penalty imposed of Kshs. 2. 773, 805.00/=, was the punishment for the said offence and she was required to pay the said fine to secure the release of her motor vehicle.
21. The Ex Parte Applicant submitted that at no point was she given an opportunity to be heard before a fine/penalty for the alleged offence of overloading was imposed on her. That the Respondent constituted itself as the complainant, prosecutor, judge, jury and executioner and the ex-parte Applicant had no viable means of challenging it’s decision contrary to the dints of Article 50 of the Constitution of Kenya which prescribes for a fair hearing of any dispute. That contrary to the rules of natural justice the Applicant was condemned and punished by imposion of a penalty for the said offence without affording her an opportunity to answer to the said charges or to defend herself before punishment. Further that the Respondent’s conduct amounted to a violation of the Ex Parte Applicant’s inalienable fundamental rights to fair administrative action and fair hearing as enshrined in Article 25 of the Constitution of Kenya. Reliance was placed on the case of Margaret Miano v Kenya National Highways Authority (Petition 23 of 2015) [2015] KEHC 4768 (KLR) (8 May 2015) (Ruling) and the Court of Appeal in Registered Trustees Kenya Railways Staff Retirement Benefits Scheme vs Chairman Rent Restriction Tribunal; Simon O Godia & 98 others (Interested Parties) [2019] eKLR.
22. As regards the provisions of Section 17 of the East African Community Vehicle Load Control Act, 2016 (hereafter EACVLA, 2016), Counsel for the Ex Parte Applicant has submitted that they contend with the arguments of the Respondent on the same as per it’s Replying Affidavit. He insists that the Constitution of Kenya is the supreme law of the land and as such, any international legislation can only apply in as far as the same is in consonance with the letter and spirit of the Constitution. He categorically argues that EACLVA, 2016 cannot purport to limit the right to a fair hearing where the Constitution of Kenya itself provides that the said right cannot be limited under any circumstances. Counsel relied on the decisions of the Supreme Court in Evans Odhiambo Kidero & 4 others v Ferdinand Waititu & 4 Others [20141 eKLR and Attorney General (On behalf of the National Government) v Karua (Reference EOOI of 2022) [20241 KESC 21 (KLR)
23. Further, Counsel submits that EACVLCA, 2016 provides avenues for the ex-parte Applicant to be heard including a right of appeal to this Honourable Court in the manner that the ex-parte Applicant has done. Counsel argues that nowhere does the EACVLCA, 2016 provide for any opportunity for the affected parties to be heard before they are punished. Right from the process of impounding, detention, weighing, charging and punishment through imposition of a penalty. There is nowhere where the said statute provides that before the penalty is imposed, the party to be affected ought to be afforded a chance to offer their representation. In respect to the provision of an appeal, Counsel insists that the same clearly comes after the fact. He submits that EACVLCA, 2016 provides that where the affected party disputes the fees, not even the conviction, then they may appeal. It however does not provide how or to whom such an appeal can be lodged. Counsel placed reliance decision by the Court of Appeal in Premji Patel Company Limited v Director General Kenya National Highways Authority (KENHA) & 3 others (Civil Appeal 67 of 2019) 120221 KECA 738 (KLR)
24. It is based on the foregoing that Counsel submits that the Respondent''s actions of charging, convicting and punishing the ex-parte Applicant for an alleged offence of overloading without affording her the opportunity to defend herself is/was unlawful and ultra vires hence the urgent need of this Court''s intervention.
25. On the second issue, placing reliance on the case of Republic vs National Assembly & 2 others; Okoiti (Ex-parte); Retirement Benefits Authority (RBA) & 2 others (Interested Parties) (Judicial Review Application 095 of (2020) [2022) KEHC 15587 (KLR), Counsel submits that in the judicial review proceedings, it is evident that a Court of law can and ought to intervene when the decision being complained of is tainted with illegality, irrationality and procedural impropriety and the Respondent''s allegations that the present judicial review proceedings are not an appeal against its decision must be rejected as the same is clearly erroneous and is not anchored anywhere in law.
26. In conclusion, Counsel urged this Court to allow the ex-parte Applicant’s application and grant the orders sought as prayed.
Analysis and determination
27. I have considered the pleadings, submissions of the Ex Parte Applicant and the authorities cited by her and the following issue commend itself to my attention in order to dispose of this case: Whether this Court ought to grant the orders sought.
28. In the case of Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300 in which the Court citing Council of Civil Unions vs. Minister for the Civil Service [1985] AC 2 and an Application by Bukoba Gymkhana Club [1963] EA 478 at 479 held that:
“In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety...Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality...Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards...Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.”
29. I will address a pertinent issue which the ex-parte Applicant omitted to address. This is whether this Motion application offends the doctrine of exhaustion. Section 17 (4) (a) and (b) of the East African Community Vehicle Control Act (EACVC Act) 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 report shall be issued to the transporter who may—
a. pay the requisite overloading fees on a without prejudice basis to secure the release of the vehicle, make such necessary adjustment on the load as may be directed by the authorized officer and lodge an appeal against the fees as provided for by regulations made under this Act; 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.
30. The East African Community Vehicle Load Control Act, 2016 came into force on 1st October, 2016. Kenya is a member of the East African Community and the Act therefore applies. The statute is one of specific application. Its provisions are applicable within the Regional Trunk Road Network and supersedes national legislation thereon.
31. As per the 1st schedule, the road between Mombasa and Malaba is a Regional Trunk Road Network and the provisions of the Act therefore apply pursuant to the provisions of Section 3. Section 8(1) requires the transporter operating a vehicle of a gross vehicle weight of 3,500 kilogrammes or more to present such vehicle to be weighed at every weighing station that is situated along the Regional Trunk Road Network traversed by such vehicle or that is designated for this purpose by a national roads authority.
32. Clearly, the ex-parte Applicant’s truck was within the regional trunk road network and therefore the provisions of the East African Community Vehicle Load Control Act, 2016 are applicable to this Judicial Review Proceedings.
33. Under Section 17 of the East African Community Vehicle Load Control Act, 2016 when an authorized officer determines that a vehicle is carrying a load in excess of the legal load limit, he or she shall issue a weighing report setting out the overload particulars and the amount of overload fees payable. The officer shall not allow the journey to be continued unless the load is redistributed to comply with the load limit, or the vehicle is offloaded to lower its weight to the legal load limit and-
A. any amounts due under subsection (1) have been paid to the national roads authority or its duly appointed agent; or
B. a guarantee in the prescribed format is provided by the transporter that such amounts shall be paid.
34. Under Sub Section 3 of the East African Community Vehicle Control Act (EACVC Act), the transporter shall sign and acknowledge the weighing report in the prescribed manner and the transporter shall be liable for the overload fees which may be recovered as a summary debt by the national roads authority if the fact of overloading is not disputed.
35. If the fact is disputed however, the authorized officer shall indicate such dispute in the weighing report, and a copy of the disputed report shall be issued to the transporter who may 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.
36. In William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR it was held;
“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.”
37. It is also important to point out that Section 15 (2) of the East African Community Vehicle Load Control Act insulates the authorized officer from liability for any damage to or loss in respect of a vehicle or its load, unless it is shown that the authorized officer acted maliciously or recklessly. Section 17 of the lays down a very elaborate procedures in case of vehicle overloading.
38. In this regard, it is important to point out that the Respondent’s functions are stipulated in Section 4 of the Roads Act. The Section provides that: -
1. The Highways Authority shall be responsible for the management, development, rehabilitation and maintenance of national roads.
2. For the purposes of discharging its responsibility under subsection (1), the Highways Authority shall have the following functions and duties—
(a) constructing, upgrading, rehabilitating and maintaining roads under its control;
(b) controlling national roads and road reserves and access to roadside developments;
(c) implementing road policies in relation to national roads;
(d) ensuring adherence to the rules and guidelines on axle load control prescribed under the Traffic Act (Cap. 403) and under any regulations under this Act;
(e) ensuring that the quality of road works is in accordance with such standards as may be prescribed by the Minister;
(f) in collaboration with the Ministry responsible for Transport and the Police Department, overseeing the management of traffic and road safety on national roads;
(g) collecting and collating all such data related to the use of national roads as may be necessary for efficient forward planning under this Act;
(h) monitoring and evaluating the use of national roads;
(i) planning the development and maintenance of national roads;
(j) advising the Minister on all issues relating to national roads;
(k) preparing the road works programmes for all national roads;
(l) liaising and co-ordinating with other road authorities in planning and on operations in respect of roads; and
(m) performing such other functions related to the implementation of this Act as may be directed by the Minister.
39. Secondly, the Respondent has a statutory duty to ensure adherence to the rules and guidelines on axle load control prescribed under the Traffic Act (Cap. 403) and under any regulations under the Act. In fact, a failure to do so amounts to a dereliction of duty.
40. The above position becomes clear if we read the preamble to the enabling East African Community Vehicle Load Control Act, which reads: - An Act of the Community to make provision for the control of vehicle loads, harmonized enforcement, institutional arrangements for the Regional Trunk Road Network within the Community and to provide for other related matters.
41. Section 4(1) of the East African Community Vehicle Load Control Act provides that the axle load of any vehicle using the Regional Trunk Road Network shall not exceed the maximum permissible weight limits for such vehicle, set out in the Second Schedule. Section 4(2) provides that the gross vehicle weight of any vehicle using the Regional Trunk Road Network shall not exceed the maximum permissible gross vehicle weight specified in the Third Schedule.
42. Section 5 of the East African Community Vehicle Load Control Act prohibits overloading in peremptory terms. Also couched in mandatory terms is Section 6(1) which provides that a person shall not drive, use, cause or permit to be driven or used, any vehicle on the Regional Trunk Road Network while overloaded. As if to underscore the gravity of the matter Section 6 (2) stipulates that any person who drives, uses, causes or permits to be driven or used, any vehicle on the Regional Trunk Road Network while overloaded shall be liable to pay overloading fees to the national roads authority or any institution designated by a Partner State where the overloading is detected, such overloading fees as may be from time to time be prescribed and published in the Gazette by the Council.
43. Part 111 of the East African Community Vehicle Load Control Act deals with control of vehicle loads and the short title reads” Obligatory weighing of vehicles.” So obligatory is the requirement to weigh a vehicle that Section 8(1) requires a transporter operating a vehicle of a gross vehicle weight of 3,500 Kg to present such vehicle to be weighed at every weighing station that is situated along t
[...truncated]
IN THE HIGH COURT
AT BUNGOMA
JUDICIAL REVIEW DIVISION
HCJRNO. E011 OF 2024
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF PROHIBITION AND MANDAMUS
AND
IN THE MATTER OF: ARTICLES 2(1) AND 2(2), 10, 19, 20, 21, 22, 23, 25 (a) and (c), 29 (d), 47, 50 and 159 OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF SECTION 4(1), (2) AND (3), 67 AND 9(1) OF THE FAIR ADMINISTRATIVE ACTION ACT NO. 4 OF 2015
AND
IN THE MATTER OF SECTIONS 56 & 58 OF THE TRAFFIC ACT CAP 403 LAWS OF KENYA
AND
IN THE MATTER OF: REGULATIONS 14 & 15 OF THE KENYA ROADS (KENYA NATIONAL HIGHWAYS AUTHORITY) REGULATIONS, 2013
AND
IN THE MATTER OF ORDER 55 OF THE CIVIL PROCEDURE RULES, 2010
AND
IN THE MATTER OF SECTION 8 & 9 OF THE LAW REFORM ACT, CHAPTER 26 LAWS OF KENYA
AND
IN THE MATTER OF: THE IMPOSITION OF A FINE FOR AN ALLEGED OFFENCE WITHOUT TRIAL.
BETWEEN
REPUBLIC……………………………………………………….. APPLICANT
VERSUS
THE KENYA NATIONAL
HIGHWAYS AUTHORITY…………………….……………..RESPONDENT
AND
LYDIA NAMONO…………………………….……EX-PARTE APPLICANT
JUDGEMENT
Introduction
1. The Ex-parte Applicant herein through her Notice of Motion application dated 27th November 2024, seeks the following reliefs:-
a. THAT this Honourable Court be pleased to issue an Order of MANDAMUS to compel the Respondent herein to release back to the ex-parte Applicant her motor vehicle registration number UBK 750N make Mitsubishi Fuso.
b. THAT this Honourable Court be pleased to issue an Order of PROHIBITION to prohibit and prevent the Respondent herein or other persons/state actors acting at its behest from forcefully impounding and/or detaining the ex-parte Applicant’s motor vehicle registration number UBK 750N make Mitsubishi Fuso without following due procedure as provided in law.
c. THAT the costs of this application be provided for.
2. The motion application was supported by the Statutory Statement and Verifying Affidavit of Lydia Namono, the ex-parte Applicant herein both dated 20th November 2024, and filed in Court on the even date.
Ex-parte Applicant’s case
3. The ex-parte Applicant is engaged in the transport business which she does with motor vehicle registration number UBK 750N which she utilizes commercially to generate revenue.
4. On or about the 12th May 2024, the ex-parte Applicant''s motor vehicle was impounded by officers of the Respondent herein on its way from Naitiri near Sikhendu within the Republic of Kenya where it was transporting a client''s molasses for allegedly being overloaded. The officers of the Respondent herein caused the said motor vehicle to be driven and/or taken to its Webuye weighbridge where it was weighed and immediately on the same day, the Applicant was ordered to pay the Respondent a sum of Kshs. 2, 773, 755.00/= as fine for overloading with no further explanation. The ticket was printed and dated 14th May 2024 at 19:06:49.
5. The ex-parte Applicant argues that she was never accorded an opportunity to answer to the preferred charges and was neither provided with a basis for the fine imposed as the same is contrary to the scale provided for under the Traffic Act. She further argues that she was not accorded an opportunity to be heard before the demand for Kshs. 2, 773, 755.00/= was made which goes against the rules of natural justice and the Fair Administrative Action Act as enshrined by Articles 47 and 50 of the Constitution of Kenya, thus the Respondent arrogated itself the role of both judge, jury and executioner as it decreed that the ex-parte Applicant had committed an offence of overloading and immediately proceeded to punish her for the said offence by imposing a penalty/fine for the offences it had condemned the ex-parte Applicant for.
6. The ex-parte Applicant argues that the Respondent acted ultra vires to its powers as provided for by law as the relevant provisions of the Kenya Roads (Kenya National Highways Authority) Regulations, 2013 that initially provided the Respondent with the authority to decree a commission of an offence and proceed to impose a penalty/fine without trial were long declared unconstitutional hence the action of the respondent was null and void ab initio and such, the Respondent herein had no authority to accuse the ex-parte Applicant of an offence and proceed to convict and punish her for the same without trial.
7. Finally, the ex-parte Applicant avers that, her motor vehicle has been detained illegally at the Respondent''s yard in Webuye since May 2024 causing her to suffer grave economic loss and the same may similarly be auctioned and sold at any time to recover the fines imposed without affording her a fair trial. She urges this Court, in the interest of justice, to grant her the orders sought so as avert a miscarriage of justice.
Respondent’s case
8. Paul Muriungi Mwirigi, swore a Replying Affidavit on 20th February 2025 in response to the Ex Parte Applicant’s application. He deposed that he is an employee of Ms. lnterways Works Limited which has been contracted by Kenya National Highways Authority to manage designated weighbridges in Kenya on it’s behalf by way of monitoring and enforcing compliance of the motor vehicles using the roads in Kenya. That Ms Interways Works Limited mandate is to ensure compliance by motor vehicles, with the load capacity designated for each such motor vehicles as specified in the relevant schedules under the provisions of Section 4 (2) (a), (b), (c), (d), (f), (g), (h),(j), (l) and (m) and 50 of the Kenya Roads Act,2007, as read with provisions of Sections 52 (1)(a), 55 (2) and 56 (1) & (2) of the Traffic Act, Chapter 403, Laws of Kenya, and in the event of none compliance to impose corresponding prescribed penalties as set out in the proviso to section 58 (1) thereof, as read with Section 58 (2) thereof, and the East Africa Community Vehicle Load Control Act, 2016 Sections 3,4,5,6,7,8,9, l0, l1, 12, 13, 14, 15, 16, 17 and 25 thereof, as read with Article 2 (6) of the Constitution of Kenya, which allows the said later legislation passed by the East African community to have the force of law, in Kenya. In addition, he deposed that he is also in charge of all such motor vehicles held or detained at Webuye Police station arising from any of the responsibilities of the Respondent as shown in the referred legislation.
9. It was the Respondent’s case that, on 11th May 2024, at around 16.00 hours Mr Mwirigi received information of suspected overloaded trucks that were about to depart from Naitiri Sugar Company travelling along Kitale - Kamukuywa - Webuye Highway. Pursuant to this information, he secured an appropriate surveillance team constituting the OCS of Webuye Weighbridge Police Station, Chief Inspector Mark Rotich, and they proceeded to act on the information using the Respondent''s motor vehicle registration number KDK 411 Z in this operation. (Produced in Court an automatically generated trip record of the said motor vehicle fitted in the car showing the entire period of surveillance on 12th May 2024 up to the time they concluded the entire operations leading to the ultimate detention of the said motor vehicle the subject of this proceedings as PMM/1).
10. The Respondent posits that on 12th May 2024 between 02.00-02.30 hours as they were patrolling along Kitale - Kamukuywa - Webuye Highway they intercepted and stopped motor vehicle registration number UBK 750 N, a few kilometres from Naitiri Sugar Company, between Kitale and Kamukuywa town and the said vehicle was loaded with molasses. That while driving the Respondent''s motor vehicle registration number KDK 411 Z, they sounded an alarm for the driver of motor vehicle registration number UBK 750 N to stop, to which he complied, but prior to their engagement with him, the driver quickly stepped out of the motor vehicle registration number UBK 750 N and escaped. This prompted the Respondent to summon reinforcements to secure the motor vehicle registration number UBK 750 N and the molasses load.
11. Mr Mwirigi further deposed that later on 12th May 2024, he received information that one person by the name Daniel Fred Masinde, had approached the reinforcement team alleging to have been sent by the owner of the motor vehicle registration number UBK 750 N to check on it. That at the request of the enforcement team, the said man agreed to drive the motor vehicle registration number UBK 750 N to Webuye Weighbridge Police Station where the motor vehicle and its load was duly weighed by the Respondent’s agent working with Ms. Interways Works Limited at 19:06:49 hours in the presence of the owner’s driver/agent namely, Daniel Fred Maside, of National Identity 34005420. It was established that motor vehicle registration number UBK 750 N was overloaded as follows:
“Its Gross Vehicle Weight (GVWI) was 45,040 Kgs, instead of the legal permissible limit of 30,000 Kgs on the Gross Vehicle Weight, had an excess overload of 15,040 Kgs, whose statutory prescribed overload penalty fees for the said weight in excess is USD 21,132.85 being an equivalent of Ksh.2,773,755.00 at a then prevailing dollar rate of Ksh.131.2532 per US dollar, plus the Ksh.50- convenience fee payable under the E-citizen portal, bringing the amount due at Ksh.2,773,805.00”
12. The Respondent argues that the driver/agent of the owner of motor vehicle registration number UBK 750 N was issued with a weighbridge ticket specifying the excess loads, and the penalties were computed thereon as per the copy of the weighbridge certificate of the penalty as constituted in the weighbridge ticket already annexed in the supporting affidavit of the ex-parte Applicant as LN 2(a) and (b) including the copy of the National Identity Card of the driver of the motor vehicle thereon, the Overload Fees invoice, and the pay bill Mpesa account to which the payment is to be made directly to the Government of Kenya as prescribed by law, being the Government designated E-citizen Mpesa account. He also produced the more legible copies of the said documents in Court as PMM/2 (a), (b) and (c).
13. The Respondent maintains that the motor vehicle registration number UBK 750 N loaded with molasses was intercepted along Sirare-Kisumu-Webuye-Kitale-Lodwar-Sudan, Northern Trunk Road Network which the East Africa Community Vehicle Load Control Act 2016 applies within the meaning of the First Schedule Item No. 6 at page 30 of the said statute, and the same is enforceable within the meaning of Section 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 25 thereof as read with Article 2(6) of the Constitution of Kenya.
14. The Respondent posits that according to the weighbridge ticked issued, the ex-parte Applicant is the registered owner of the motor vehicle registration number UBK 750 N and that the said motor vehicle has been driven and used along Regional Trunk Road Network making the applicable law the East Africa Community Vehicle Load Control Act 2016 which explicitly decriminalizes overloading and does not require a party to be present before any Court before a penalty is imposed on the owner of the motor vehicle. The Respondent places reliance on Section 17 of the EACVLC, 2016 which provides for a procedure in cases of vehicle overloading; a party pays the overload penalty, and in the event that the owner of the offending motor vehicle disputes the computation of the penalty as in this case, then she/he has to lodge an appeal against the computation of the penalty in a Court with unlimited jurisdiction under the Constitution of Kenya, as there is no prescribed mechanism for such dispute resolution at the level of appeal by the National Road Authority and this being a case of Kenya National Highway Authority, the dints of the East African Community Vehicle Load Control (Enforcement Measures) Regulations, 2018 are applicable.
15. The Respondent argues that as per the dints of Section 17(4) (a) and (b) of the Act, the ex-parte Applicant was supposed to pay the disputed fees without prejudice then lodge the requisite appeal as a basis of release of the motor vehicle registration number UBK 750 N or in the alternative, have the motor vehicle registration number UBK 750 N remain detained pursuant to the powers of such detention vested upon the Respondent in consultation with the Police, until the determination of the appeal.
16. The Respondent argues that as per Section 17 (6) of the Act an overloaded vehicle shall be detained without charge for a period of 3 days and thereafter a fee of 50 USD shall be charged for each extra date and the same is expected to be pay along with the disputed penalty charged for excess load. The Respondent posits that in this case the ex-parte Applicant’s motor vehicle registration number UBK 750 N has as at 5th December 2024, accumulated parking fees of 204 days placing the total amount owed as parking fees as Kshs. 1, 319,167/=.
17. The Respondent argues that it has not accorded itself the role of a judge or jury and executioner in the case of the ex-parte Applicant as the ex-parte Applicant was, by operation of law, been afforded an opportunity to be present at the time of weighing the said motor vehicle registration number UBK 750 N, through her chosen agent or her own personal capacity and given that she contested the handed overload penalties she would have done so as the applicable statues allow so and that the ex-parte Applicant arguments are anchored at a time in the past, when regulations in place were not anchored in substantive legislative law and the Constitution.
18. On 26th March 2025, the parties were directed to canvass the Motion application dated 27th November 2024, by way of written submissions. On my scrutiny of the Court record and the Court Tracking System, only the ex-parte Applicant filed her written submissions. The Respondent did not comply with the Court orders.
Ex-parte Applicant submissions
19. Vide written submissions dated 23rd May 2025, Counsel for the ex-parte Applicant submitted on three (3) issues of whether the Respondent''s actions of imposing a fine/penalty without trial is lawful and whether the present application is merited and whether the orders sought should issue.
20. On the first issue, Counsel submits that it is not in dispute that the ex-parte Applicant''s motor vehicle registration no. UBK 750N was impounded by the Respondent along the Kitale -Webuye Highway and caused the same to be driven to Webuye where it was allegedly weighed, found to be overloaded and was detained. That the Ex Parte Applicant was then ordered to pay a penalty/fine of Kshs. 2, 773, 805.00/=. Further, it is not in contention that overloading was the offence upon which the ex-parte Applicant was charged and convicted of by the Respondent and that the fine/penalty imposed of Kshs. 2. 773, 805.00/=, was the punishment for the said offence and she was required to pay the said fine to secure the release of her motor vehicle.
21. The Ex Parte Applicant submitted that at no point was she given an opportunity to be heard before a fine/penalty for the alleged offence of overloading was imposed on her. That the Respondent constituted itself as the complainant, prosecutor, judge, jury and executioner and the ex-parte Applicant had no viable means of challenging it’s decision contrary to the dints of Article 50 of the Constitution of Kenya which prescribes for a fair hearing of any dispute. That contrary to the rules of natural justice the Applicant was condemned and punished by imposion of a penalty for the said offence without affording her an opportunity to answer to the said charges or to defend herself before punishment. Further that the Respondent’s conduct amounted to a violation of the Ex Parte Applicant’s inalienable fundamental rights to fair administrative action and fair hearing as enshrined in Article 25 of the Constitution of Kenya. Reliance was placed on the case of Margaret Miano v Kenya National Highways Authority (Petition 23 of 2015) [2015] KEHC 4768 (KLR) (8 May 2015) (Ruling) and the Court of Appeal in Registered Trustees Kenya Railways Staff Retirement Benefits Scheme vs Chairman Rent Restriction Tribunal; Simon O Godia & 98 others (Interested Parties) [2019] eKLR.
22. As regards the provisions of Section 17 of the East African Community Vehicle Load Control Act, 2016 (hereafter EACVLA, 2016), Counsel for the Ex Parte Applicant has submitted that they contend with the arguments of the Respondent on the same as per it’s Replying Affidavit. He insists that the Constitution of Kenya is the supreme law of the land and as such, any international legislation can only apply in as far as the same is in consonance with the letter and spirit of the Constitution. He categorically argues that EACLVA, 2016 cannot purport to limit the right to a fair hearing where the Constitution of Kenya itself provides that the said right cannot be limited under any circumstances. Counsel relied on the decisions of the Supreme Court in Evans Odhiambo Kidero & 4 others v Ferdinand Waititu & 4 Others [20141 eKLR and Attorney General (On behalf of the National Government) v Karua (Reference EOOI of 2022) [20241 KESC 21 (KLR)
23. Further, Counsel submits that EACVLCA, 2016 provides avenues for the ex-parte Applicant to be heard including a right of appeal to this Honourable Court in the manner that the ex-parte Applicant has done. Counsel argues that nowhere does the EACVLCA, 2016 provide for any opportunity for the affected parties to be heard before they are punished. Right from the process of impounding, detention, weighing, charging and punishment through imposition of a penalty. There is nowhere where the said statute provides that before the penalty is imposed, the party to be affected ought to be afforded a chance to offer their representation. In respect to the provision of an appeal, Counsel insists that the same clearly comes after the fact. He submits that EACVLCA, 2016 provides that where the affected party disputes the fees, not even the conviction, then they may appeal. It however does not provide how or to whom such an appeal can be lodged. Counsel placed reliance decision by the Court of Appeal in Premji Patel Company Limited v Director General Kenya National Highways Authority (KENHA) & 3 others (Civil Appeal 67 of 2019) 120221 KECA 738 (KLR)
24. It is based on the foregoing that Counsel submits that the Respondent''s actions of charging, convicting and punishing the ex-parte Applicant for an alleged offence of overloading without affording her the opportunity to defend herself is/was unlawful and ultra vires hence the urgent need of this Court''s intervention.
25. On the second issue, placing reliance on the case of Republic vs National Assembly & 2 others; Okoiti (Ex-parte); Retirement Benefits Authority (RBA) & 2 others (Interested Parties) (Judicial Review Application 095 of (2020) [2022) KEHC 15587 (KLR), Counsel submits that in the judicial review proceedings, it is evident that a Court of law can and ought to intervene when the decision being complained of is tainted with illegality, irrationality and procedural impropriety and the Respondent''s allegations that the present judicial review proceedings are not an appeal against its decision must be rejected as the same is clearly erroneous and is not anchored anywhere in law.
26. In conclusion, Counsel urged this Court to allow the ex-parte Applicant’s application and grant the orders sought as prayed.
Analysis and determination
27. I have considered the pleadings, submissions of the Ex Parte Applicant and the authorities cited by her and the following issue commend itself to my attention in order to dispose of this case: Whether this Court ought to grant the orders sought.
28. In the case of Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300 in which the Court citing Council of Civil Unions vs. Minister for the Civil Service [1985] AC 2 and an Application by Bukoba Gymkhana Club [1963] EA 478 at 479 held that:
“In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety...Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality...Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards...Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.”
29. I will address a pertinent issue which the ex-parte Applicant omitted to address. This is whether this Motion application offends the doctrine of exhaustion. Section 17 (4) (a) and (b) of the East African Community Vehicle Control Act (EACVC Act) 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 report shall be issued to the transporter who may—
a. pay the requisite overloading fees on a without prejudice basis to secure the release of the vehicle, make such necessary adjustment on the load as may be directed by the authorized officer and lodge an appeal against the fees as provided for by regulations made under this Act; 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.
30. The East African Community Vehicle Load Control Act, 2016 came into force on 1st October, 2016. Kenya is a member of the East African Community and the Act therefore applies. The statute is one of specific application. Its provisions are applicable within the Regional Trunk Road Network and supersedes national legislation thereon.
31. As per the 1st schedule, the road between Mombasa and Malaba is a Regional Trunk Road Network and the provisions of the Act therefore apply pursuant to the provisions of Section 3. Section 8(1) requires the transporter operating a vehicle of a gross vehicle weight of 3,500 kilogrammes or more to present such vehicle to be weighed at every weighing station that is situated along the Regional Trunk Road Network traversed by such vehicle or that is designated for this purpose by a national roads authority.
32. Clearly, the ex-parte Applicant’s truck was within the regional trunk road network and therefore the provisions of the East African Community Vehicle Load Control Act, 2016 are applicable to this Judicial Review Proceedings.
33. Under Section 17 of the East African Community Vehicle Load Control Act, 2016 when an authorized officer determines that a vehicle is carrying a load in excess of the legal load limit, he or she shall issue a weighing report setting out the overload particulars and the amount of overload fees payable. The officer shall not allow the journey to be continued unless the load is redistributed to comply with the load limit, or the vehicle is offloaded to lower its weight to the legal load limit and-
A. any amounts due under subsection (1) have been paid to the national roads authority or its duly appointed agent; or
B. a guarantee in the prescribed format is provided by the transporter that such amounts shall be paid.
34. Under Sub Section 3 of the East African Community Vehicle Control Act (EACVC Act), the transporter shall sign and acknowledge the weighing report in the prescribed manner and the transporter shall be liable for the overload fees which may be recovered as a summary debt by the national roads authority if the fact of overloading is not disputed.
35. If the fact is disputed however, the authorized officer shall indicate such dispute in the weighing report, and a copy of the disputed report shall be issued to the transporter who may 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.
36. In William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR it was held;
“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.”
37. It is also important to point out that Section 15 (2) of the East African Community Vehicle Load Control Act insulates the authorized officer from liability for any damage to or loss in respect of a vehicle or its load, unless it is shown that the authorized officer acted maliciously or recklessly. Section 17 of the lays down a very elaborate procedures in case of vehicle overloading.
38. In this regard, it is important to point out that the Respondent’s functions are stipulated in Section 4 of the Roads Act. The Section provides that: -
1. The Highways Authority shall be responsible for the management, development, rehabilitation and maintenance of national roads.
2. For the purposes of discharging its responsibility under subsection (1), the Highways Authority shall have the following functions and duties—
(a) constructing, upgrading, rehabilitating and maintaining roads under its control;
(b) controlling national roads and road reserves and access to roadside developments;
(c) implementing road policies in relation to national roads;
(d) ensuring adherence to the rules and guidelines on axle load control prescribed under the Traffic Act (Cap. 403) and under any regulations under this Act;
(e) ensuring that the quality of road works is in accordance with such standards as may be prescribed by the Minister;
(f) in collaboration with the Ministry responsible for Transport and the Police Department, overseeing the management of traffic and road safety on national roads;
(g) collecting and collating all such data related to the use of national roads as may be necessary for efficient forward planning under this Act;
(h) monitoring and evaluating the use of national roads;
(i) planning the development and maintenance of national roads;
(j) advising the Minister on all issues relating to national roads;
(k) preparing the road works programmes for all national roads;
(l) liaising and co-ordinating with other road authorities in planning and on operations in respect of roads; and
(m) performing such other functions related to the implementation of this Act as may be directed by the Minister.
39. Secondly, the Respondent has a statutory duty to ensure adherence to the rules and guidelines on axle load control prescribed under the Traffic Act (Cap. 403) and under any regulations under the Act. In fact, a failure to do so amounts to a dereliction of duty.
40. The above position becomes clear if we read the preamble to the enabling East African Community Vehicle Load Control Act, which reads: - An Act of the Community to make provision for the control of vehicle loads, harmonized enforcement, institutional arrangements for the Regional Trunk Road Network within the Community and to provide for other related matters.
41. Section 4(1) of the East African Community Vehicle Load Control Act provides that the axle load of any vehicle using the Regional Trunk Road Network shall not exceed the maximum permissible weight limits for such vehicle, set out in the Second Schedule. Section 4(2) provides that the gross vehicle weight of any vehicle using the Regional Trunk Road Network shall not exceed the maximum permissible gross vehicle weight specified in the Third Schedule.
42. Section 5 of the East African Community Vehicle Load Control Act prohibits overloading in peremptory terms. Also couched in mandatory terms is Section 6(1) which provides that a person shall not drive, use, cause or permit to be driven or used, any vehicle on the Regional Trunk Road Network while overloaded. As if to underscore the gravity of the matter Section 6 (2) stipulates that any person who drives, uses, causes or permits to be driven or used, any vehicle on the Regional Trunk Road Network while overloaded shall be liable to pay overloading fees to the national roads authority or any institution designated by a Partner State where the overloading is detected, such overloading fees as may be from time to time be prescribed and published in the Gazette by the Council.
43. Part 111 of the East African Community Vehicle Load Control Act deals with control of vehicle loads and the short title reads” Obligatory weighing of vehicles.” So obligatory is the requirement to weigh a vehicle that Section 8(1) requires a transporter operating a vehicle of a gross vehicle weight of 3,500 Kg to present such vehicle to be weighed at every weighing station that is situated along t
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