A. Background to the petition
1. The petitioner is a limited liability company and the registered owner of a motor vehicle, Isuzu FVZ registration No. KDM 107V and a trailer registration No. ZH2351 (hereinafter referred to as the motor vehicle). The motor vehicle is jointly owned with Sidian Bank Limited, the financiers under a Vehicle and Assets Finance. The petitioner is in the transportation business, ferrying construction materials, waste materials, farm produce, among others. The 1st respondent is a state corporation responsible for the development, rehabilitation, management and maintenance of National Trunk Roads. The 2nd respondent is the Chief Legal Adviser of the Government of Kenya and has been sued in that capacity.
2. On 18th January 2024, the petitioner's motor vehicle, while transporting sand, was impounded and detained by the 1st respondent’s officials under the provisions of the East African Community Vehicle Load Control Act, 2016 (hereinafter EACVLCA) and East African Community Vehicle Load Control (Enforcement Measures) Regulations, 2018 (hereinafter Regulations, 2018). The circumstances leading to the impoundment and detention are in dispute between the parties in this petition.
3. On 21st February 2024, this Court (Olel J) determined the petitioner’s application dated 8th February 2024 seeking conservatory orders, and directed the 1st respondent to release the motor vehicle to the petitioner. The 1st respondent disregarded the court orders, and the petitioner filed contempt of court proceedings vide an application dated 11th March 2024. The 1st respondent also filed an application dated 15th March 2024, seeking to set aside the orders of 21st February 2024. Later, the 1st respondent released the motor vehicle on 26th March 2024 and abandoned its application dated 15th March 2024.
B. Petitioner’s Case
4. By a petition dated 8th February 2024 and amended on 18th February 2025, which was admitted by this Court on 4th March 2025, the petitioner challenges the interception, arrest and detention of the motor vehicle by the 1st respondent’s officials. It also opposes the charge of Kshs 46,898,643.00 as a fee for overloading under the EACVLCA and Regulations, 2018. The petitioner contends that the officials of the 1st respondent unlawfully, maliciously and unfairly immobilised and impounded the motor vehicle.
5. The petitioner avers that on 18th January 2024, its motor vehicle was transporting sand along an unmarked, unpaved dirt road off Mombasa Road, at the Katumani Junction area near Konza Technopolis when the 1st respondent’s officials, while aware that the motor vehicle was not on a tarmac road or a road under Class S, A, or B, unlawfully impounded the motor vehicle, forcefully managed and drove it to the Athi River Weighbridge Station, hurriedly weighed it and condemned the petitioner to pay an overloading fine of Kshs 46,898,643.00.
6. In addition, the petitioner contends that the 1st respondent imposed storage charges of USD 50 per day from the third day of non-payment of the fine until payment in full; and threatened to sell the motor vehicle by auction to recover the fine and charges, if the fine remained unpaid within sixty days of impoundment. Further, it is the petitioner’s case that the fine and charges were imposed without affording it a fair opportunity to be heard in an independent, judicial process in violation of its rights to a fair hearing.
7. It is also asserted that upon taking possession of the motor vehicle from the 1st respondent as directed by this Court, the motor vehicle had been vandalised, and parts of an estimated value of Kshs 1,500,000.00 were removed by the 1st respondent’s officials, occasioning it losses. Furthermore, the petitioner pleads that after the impugned impoundment, the 1st respondent caused to be published a defamatory article in the Nation Newspaper, on 19th January 2024, describing the petitioner as ‘few selfish individuals’ and misinforming the readers that the motor vehicle had been impounded with a load in excess of 54,000 kilograms, leaving out the information that the arrest was made at an untarmacked and unmarked road. The petitioner also urges that this was prejudicial and caused loss of business. Moreover, that the publication was made without affording it the right of reply in violation of its rights to fair administrative action, information, correction and deletion of untrue and misleading information and access to justice.
8. It is the petitioner’s further case that the 1st respondent waived fines and released impounded vehicles from its various weighbridge stations. It argues that the act of pardoning some cargo transporters and waiving the fines, irrespective of whether lawfully or unlawfully, yet maintaining fines against it, is an act of direct discrimination contrary to the Constitution.
9. The petition is supported by the affidavit sworn by Joseph Kathae Ndunda, the petitioner’s director. He avers that the petitioner is the registered and beneficial owner of the motor vehicle, having purchased it through an Asset Finance Facility with Sidian Bank for Kshs 12,271,500.00, together with an insurance funding of Kshs 300,400.00. He further avers that under this Facility, the petitioner has an obligation to pay a monthly instalment of Kshs 363,174.10 and further Kshs 32,310.93 on the 22nd day of each month, failure to which the motor vehicle, the security of other motor vehicle registration No.s KDC 903R and KDC 511E and property Nairobi/Block/82/1302 would be forfeited. He relies on Exhibits JKN-01 and JKN-02, the logbook and the Facility Letter. He further states that the petitioner advances the income from its transportation business to service the said facility, and the loan balance at the time of filing the petition was Kshs. 11,720,113.90. He relies on the bank statement marked as JKN-03.
10. Thereafter, he reiterates the averments in the amended petition as summarised in the foregoing paragraphs and relies on the following: the annexures marked as JKN-04 as proof that the petitioner was at the material time authorized to carry out the transportation business; and the 1st respondent’s order requiring the petitioner to pay the fines and the storage charges, marked as JKN-05. To persuade the Court to grant the orders sought in the amended petition, he relies on the decision of the High Court in Petition No. 226 of 2019, Petition No. 13 of 2019, Petition No. 22 of 2017 and Petition No. 31 of 2015, marked as JKN-06, JKN -07, JKN-09, and JKN-10 respectively; and Court of Appeal in Appeal No. 67 of 2019 marked as JKN-08.
11. He also restates that: the 1st respondent’s officials unlawfully impounded the motor vehicle and forcefully drove it to the tarmac road and into the weighbridge station; the 1st respondent’s officials in an effort to find the petitioner culpable of overloading interfered with the cargo on the motor vehicle; the 1st respondent’s officials demanded for a bribe; and the 1st respondent continues to apply provisions of the law that have been declared unconstitutional. Therefore, that the 1st respondent’s actions or omissions violated the petitioner’s rights under Articles 27, 40, 47, 48 and 50 of the Constitution.
12. The petitioner relies on a second supporting affidavit sworn by Samuel Mutua Mutuku, the petitioner’s Transport and General Manager. He details the petitioner’s mode of operation, noting that normally, a trip starts at around 6:00 am, when the motor vehicle is driven to the river and loaded with sand between midnight and 4:00 am the following day. After loading, the motor vehicle is driven through an untarmacked path to an open field, and later offloaded to smaller tonnage lorries between 5:00 am and 1:00 pm.
13. It was stated that the motor vehicle is fitted with a GPS tracker, which generates a Trip Report and a GPS Report of the day’s activities. He stated that on 17th January 2024, the petitioner’s motor vehicle began its trip at 6:11 pm and was driven to the river bed near Erankau Primary School in Imaroro Ward, Kajiado East, Kajiado County for loading. The motor vehicle was loaded at about 2:15 am on 18th January 2024 and then driven to an open field near Katumani Junction, near Konza Technopolis, Machakos County.
14. Further, he depones that while awaiting confirmation of the petitioner’s orders at the field, at about 4:15 am, the 1st respondent’s officers wearing reflector jackets branded Ebenezer Commercial Workers, and in the company of two police officers, approached the motor vehicle and demanded a bribe. He averred that when the petitioner’s driver and turnboy failed to give the bribe, they were instructed by the 1st respondent’s officials to inform him, as the transport manager, of what was required. He argued that he explained to the 1st respondent’s officials that the petitioner was compliant and had the requisite permits to harvest sand, and instructed the driver to furnish them with the said paperwork.
15. He avers that despite the explanation, the 1st respondent’s officials took control of the motor vehicle, drove it towards Isinya-Kiserian Road and into Mombasa Road and to the Athi River Weighbridge Station, hurriedly weighed it and fined the petitioner Kshs 46,898,643.00 for overloading. He states that he caught up with the 1st respondent’s officials and the motor vehicle past the Machakos Junction at around 5:00 am, and realised that the motor vehicle was being driven by an officer of the 1st respondent. He added that at Mto wa Mawe on Mombasa Road, an accident occurred involving a motor vehicle and a pick-up. He adds that the police officers accompanying the 1st respondent’s officials called the traffic police and misrepresented that the petitioner’s driver had caused the accident. He produced in evidence the motor vehicle Trip Report as well as the GPS Report marked SMM-01 in support of the motor vehicle's trip from 17th January 2024 at 6:11 pm when the trip started, to 18th January 2024 at 9:08 am when the motor vehicle was parked at the 1st respondent’s Weighbridge Station.
16. Moreover, he avers that upon the release of the motor vehicle on 26th March 2024 by the 1st respondent, after inspection, he realised that several parts were missing, the motor vehicle was vandalised and damaged while in the 1st respondent's custody. He relied on the Inspection Certificate and the receipt for part of the repairs marked SMM-03. It was his further averment that the petitioner collects about Kshs. 700,000.00 per month as revenue from the transportation business using the motor vehicle, where Kshs 400,000.00 is utilised to service the loan facility, Kshs 100,000.00 to pay salaries and wages, Kshs 80,000.00 to obtain the permits for harvesting sand from the County Government, Kshs 40,000.00 for the motor vehicle maintenance and repairs, and retains Kshs. 80,000.00 as profits. He also avers that he was aware of the publication by the 1st respondent in the Daily Nation and produced a copy of the publication marked SMM-02. He further states that the 1st respondent had released trucks impounded in Kiambu County and preferentially waived the penalties imposed while sustaining the alleged fines against the petitioner. He relied on the Daily Nation publication marked as SMM-04.
17. The third supporting affidavit was by Muli Kikuvi, the petitioner’s driver, wherein he restates the averments by Samuel Mutua Mutuku. He further states that, in normal operations, the motor vehicle is loaded at night and driven to an open field where it is offloaded to smaller lorries. He avers that on 18th January 2024 at around 4:00 am, he was at a field in the Katumani junction area near Konza at a place called Masitimani, waiting to offload the sand upon confirmation of orders by the petitioner. He states that two 1st respondents’ officers and two police officers operating the Athi River Weighbridge in two double-cabin pick-ups approached the motor vehicle.
18. He avers that the officers informed Samuel Mutua Mutuku that they were on patrol and instructed him to turn off the motor vehicle engine, and requested a bribe of Kshs. 50,000.00. When the officers were informed that the driver did not have the requested amount, one of the 1st respondent’s officials snatched the motor vehicle ignition keys, ordered him and the driver to move to the back of the driver’s seat, and drove towards Mombasa Road.
19. He stated that he informed the Transport Manager, who tried to intervene; however, the 1st respondent's official continued to drive the motor vehicle on Mombasa Road until around 5:24 am when the official caused an accident. He argues that the police officers accompanying the 1st respondent’s officials called the traffic police and misrepresented to them that it was the petitioner’s driver who had caused the accident. He asserts that thereafter they proceeded to the Weighbridge Station, where he was detained, the 1st respondent officials weighed the motor vehicle, and imposed a fine of Kshs 46,898,643.00.
20. The fourth supporting affidavit was sworn by Joseph Muya Daudi, the petitioner’s turnboy, who restates the averments by the petitioner’s driver verbatim.
Particulars of breach
21. The petitioner contends that the unlawful impounding and detention of its motor vehicle and the imposition of a fee of Kshs 46,898,643.00 without a proper adjudicatory and judicial process, and the levying of unlawful storage charges, contravene its rights to property, fair hearing and freedom against discrimination.
22. The petitioner further urges that the continued detention of its motor vehicle, including the cargo, was prejudicial to its business, resulting in losses, and exposed it to possible distress by its financier bank, contrary to its right to property. It is also the petitioner’s case that the vandalisation of its motor vehicle while in the custody of the 1st respondent necessitated repairs costing Kshs 1,500,000.00, accentuating the breach of its property right.
23. In addition, it is the petitioner’s case that the 1st respondent’s officials’ actions are unlawful, unreasonable, irrational, unfair, against the unreasonableness principle, and contrary to the rules of natural justice. Principally, the impoundment of the motor vehicle and the imposition of the impugned fines without due process or according it a hearing was in disregard of the rules of natural justice enshrined in Article 47 of the Constitution and the protection by the Fair Administrative Action Act, 2015. The petitioner also pleads violation of its rights against discrimination grounded on the 1st respondent’s alleged preferential waiver of fines imposed on other cargo transporters.
Reliefs Sought
24. Based on the foregoing, the petitioner seeks the following reliefs;
a) A permanent injunction restraining the 1st respondent, its officers and/or servants from impounding and detaining or interfering with the motor vehicle without affording the petitioner a fair hearing through a judicial process as contemplated under Article 50 as read together with Articles 47 and 48 of the Constitution;
b) A declaration that the 1st respondent’s action of levying a fine was in contravention of Regulation 15(5) of the Kenya Roads (Kenya National Highways Authority Regulations, 2013, without affording the petitioner due process, violated the rights of the petitioner under Articles 40, 47 and 50 of the Constitution;
c) A declaration that Regulations 14 and 15 of the Kenya Roads (Kenya National Highways Authority), 2013 contravene Articles 40, 47, 50 and 159(1) of the Constitution;
d) An order of Judicial Review in the nature of Certiorari be issued to remove to this Court for the purpose of being quashed the decision made by the 1st respondent on 18th January 2024, imposing a fine of Kshs 46,898,643 and storage fees;
e) An award of special damages of Kshs 500,000.00 per month as compensation for loss of use, business and earnings incurred during the immobilisation of the subject motor vehicle occasioned by the 1st respondent from 18th January 2024 to 26th March 2025;
f) An award of special damages in the sum of Kshs 1,500,000.00 being the cost of repairs resulting from the vandalisation of the motor vehicle during the period of immobilisation at the 1st respondent’s facility;
g) An order for deletion of the publication made on the Daily Nation on 19th January 2024 and publication of an offer for amends to the petitioner, of similar prominence;
h) An order requiring the 1st respondent to openly and publicly publish an account of fines, penalties and storage charges obtained from cargo transporters in Athi River Weighbridge from 1st January 2023 to the date of delivery of the judgment of this Court;
i) An award of general damages for the violation of constitutional rights;
j) A structural interdict of this Court’s own terms or permanent order that the 2nd respondent must ensure that any laws or regulations in force governing the operations of the 1st respondent or the use of the Kenyan Roads or weighbridges, must comply with the rules of natural justice and provisions of the Constitution of Kenya, any such damages occasioned in the absence thereof, be paid by the responsible officer;
k) Costs; and
l) Any other relief that the court deems fit.
C. The 1st Respondent’s Case
25. The 1st respondent filed a cross petition dated 29th May 2024 wherein it avers that while its mobile patrol team was in the Lukenya area in Athi River, along Nairobi-Mombasa Road, they saw a motor vehicle, and suspected it was overloaded. Further, when the 1st respondent’s officials flagged it down to assess it for overloading, the petitioner’s driver attempted to drive off and in the process, caused an accident by hitting a pick-up registration No. KDK 114D. The 1st respondent asserts that the driver tried to flee the accident scene, but the police officers accompanying the patrol team caught up and called for reinforcement from the Athi River Traffic base, who later processed the accident scene.
26. The 1st respondent contends that at the weighbridge, the motor vehicle was weighed in the presence of the petitioner’s director and driver, and it was found overloaded in excess with 29,940 kgs on the gross vehicle weight, above the legally permissible weight of 54,000kgs. The 1st respondent urges that the motor vehicle was in use along a Regional Trunk Road Network as defined under the First Schedule of the EACVLCA, and for this reason the driver was issued with the weighing report and the motor vehicle detained under the EACVLCA; the driver was also issued with the weighbridge ticket and advised that a fine of USD 292,321.95 equivalent to Kshs 46,898,643.00 had been levied under the EACVLCA and the Regulations, 2018. It contends that when the fine remained unpaid, the motor vehicle was detained in terms of Section 17(1) (4) to (7) of the said Act.
27. The 1st respondent also affirms that when the motor vehicle was released to the petitioner, subject to the orders of the Court, it was reweighed in the presence of the petitioner’s representative; and the overload sand was redistributed to four other lorries, registration numbers KDM 107V, KCA 958P, KBS 208V, and KBY 520J. Moreover, it is the 1st respondent’s case that, contrary to Section 17(7) of the EACVLCA, the petitioner is in arrears of the fine of Kshs. 46,898,643.00 and accumulated storage fees of USD 3,400.00 calculated at a rate of USD 50 per day, for the sixty-eight days the motor vehicle was detained.
28. Consequently, the 1st respondent seeks the following reliefs in its cross-petition:
i. Orders compelling the petitioner to pay the overload fees of USD 292,321.95 (Kshs. 46,898,643.00), which sum is levied as per the EACVLCA and the Regulations, 2018 and storage fees of USD 3,400.00 charged at the rate of USD 50 per day;
ii. Orders compelling the petitioner to issue the 1st respondent security for the payment of the overload fees and, in default, the 1st respondent be at liberty to seek enforcement for the payment thereof;
iii. Interests in the amounts in (i) above; and
iv. Costs.
29. In its response to the amended petition and support of its cross-petition, the 1st respondent filed an affidavit by Dr. Eng. Michael Ngala, the 1st respondent’s Deputy Director, Axle Load Control Department, on 29th May 2024 and a supplementary affidavit on 21st May 2025. It is urged that the 1st respondent has the mandate to manage, develop, rehabilitate and maintain national trunk roads under section 4(1) of the Kenya Road Act. Further, the 1st respondent manages various weighbridges in Kenya under Section 4(2)(d) of the same Act; under Section 4 of the Kenya Road Act, the 1st respondent has the obligation to ensure adherence to the rules and guidelines on axle control prescribed under the Traffic Act and the Regulations under the Kenya Road Act, 2007, among other obligations; under Section 22(1)(c) of the Kenya Roads Act, the 1st respondent has the powers to measure and assess the weights, dimensions and capacities of vehicles using any road and to provide measures to ensure compliance with rules relating to axle load control, other provisions of the Traffic Act, Regulations under the Traffic Act and the EACVLCA; and in the enforcement of the outlined mandate, the Kenya Roads Act, the Traffic Act and the EACVLCA bind the 1st respondent.
30. He contends that pursuant to the provisions of EACVLCA, when it is established that a motor vehicle is overloaded, the vehicle in question is prohibited from continuing with the journey unless the fees on overloading are paid and the excess weight offloaded. Further, he contends that Section 17 of the EACVLCA clearly sets out a detailed procedure in instances where an overload is detected, and this procedure does not require a party to be charged in a court of law. On the contrary, a transporter is required to pay the fine prescribed in the said EACVLCA and Regulations, 2018.
31. He reiterates the averments in the cross appeal, arguing that the motor vehicle was intercepted by the 1st respondent’s mobile team officials and police officers on 18th January 2024 at Small World, in Lukenya, Athi River, along Mombasa Road on the Nairobi-Mombasa Highway, on the Northern Corridor of the Regional Trunk Road (as defined under Section 3 and the First Schedule of the EACVLCA). He avers that, therefore, the EACVLCA and Regulations, 2018, were the applicable legal framework, and not the Traffic Act. He specifies that when the petitioner’s driver was flagged down, he defied the order to stop and attempted to drive off, causing an accident and was later stopped by the police officers accompanying the 1st respondent's patrol team with reinforcement from the Athi River Traffic Base. He relies on the Police OB No. 18/18/01/2024 and abstracts marked as MN1 and MN2, respectively, and the Tracking Report of the 1st respondent’s motor vehicle used for mobile operations marked MN 10.
32. It is his further averment that the motor vehicle was driven to the Athi River Weighbridge station, was weighed, and when it was determined that it was overloaded, a fine of USD 292,321.95 (Kshs. 46,898,643.00) was levied under the EACVLCA; and a weighbridge ticket was issued. He relies on the Weighbridge ticket marked MN3. He also emphasises that after the issuance of the ticket, neither the petitioner nor its agents made any objections or lodged an appeal in line with the provisions of Section 17(1)(4) of the EACVLCA as read together with Regulations, 2018.
33. He reiterates the averments by the 1st respondent in the cross petition verbatim, relying on the following documents annexed to the affidavit: a copy of the weighbridge ticket dated 26th March 2025 issued after re-weighing and distribution of the excess weight to three lorries marked MN4; the second ticket issued after reweighing, in comparison to the initial weighbridge ticket issued on 18th January 2024 marked MN5; weighbridge tickets of the weighs of the three lorries before the excess load was loaded marked as MN6; photos of the offloading exercise marked as MN7; weighbridge tickets after offloading and redistribution to the three lorries marked as MN8; Police statements detailing where the motor vehicle was flagged down, who was driving the motor vehicle, and the point of accident, marked at MN 9.
34. He further states that the procedure set out in Section 17 of the EACVLCA and Regulation 11 of the Regulations, were exhaustively adhered to, to wit, the weighing of the vehicle; issuance of a weighing report setting out the overload particulars and the fine payable; detention of the motor vehicle if found overloaded, under Section 17(6) of the EACVLCA and Regulations 13 and 14 of the Regulations, 2018; issuance of an objection to the weighing report by way of appeal against the fine levied; overload; detention of the vehicle and charge of storage fees of USD 50 per day after the prescribed period; after the first sixty days the respondent may issue a notice of sale published in the Gazette; and sixty days after the publication of the notice, the 1st respondent may apply to the national courts for orders to auction the vehicle and the load. Consequently, he states that, having followed the process, a fine was imposed and the storage charges accrued, which remain unpaid, or a security guarantee for payment issued.
35. In response to the amended petition, he asserts that the detention of the motor vehicle and imposition of the fine, as well as the storage charges, was done in the enforcement of the EACVLCA and cannot be termed unlawful, unreasonable, irrational, unfair, perverse or against the rules of natural justice. He asserts that the EACVLCA provides an avenue to challenge any weight or fine imposed, and as the petitioner has not made that challenge, it has therefore failed to exhaust the remedies available. Similarly, the 1st respondent avers that, subject to Section 67 of the Kenya Roads Act, the petitioner was required to serve its Director General with a mandatory one-month notice outlining its grievances for redress before filing the petition. Furthermore, the 1st respondent argues that since the petitioner did not appeal against the weighbridge ticket under Section 17(4), the petitioner is bound to pay the outstanding fines and charges, and the petitioner’s claims are misplaced. For these reasons, it is contended that the 1st respondent did not breach the petitioner's proprietary rights.
36. As for the petitioner's claim for vandalisation of the motor vehicle and mechanical interference while in the 1st respondent’s possession, the 1st respondent argues that the petitioner's claim is an afterthought, as at no time was the claim for vandalisation raised; no particulars have been pleaded, or an assessment report filed detailing any vandalisations; and in any event, the vehicle was locked and parked, the parking area is under CCTV surveillance. Further, at the time of release, the motor vehicle only had flat tyres, which were replaced.
37. The 1st respondent also argues that the petitioner has not disputed that the provisions of the EACVLCA apply to this case. Further, it has not demonstrated how they were denied an opportunity to be heard through an independent judicial process. Moreover, the 1st respondent posits that the actions of its officials were in line with the legal requirements and procedures applicable and were not discriminatory; the petitioner had not demonstrated the nature of discrimination, the party affected by the discrimination, when it was discriminated against, and what loss is suffered as a result of the discrimination.
38. As regards the case for breach of the right to fair administrative action, the 1st respondent avers that the petitioner has not demonstrated any infringement of the Fair Administrative Act or any unlawfulness or illegality in the process. It insists that the petitioner was present and involved in the entire process of stopping, weighing, and detaining the motor vehicle, as well as in the re-weighing, removal, and redistribution of the load, and did not raise any such objection.
39. On the defamation claim, the 1st respondent argues that the same does not disclose any constitutional violations; rather, it is a purely private civil claim raised in the guise of a constitutional petition. The 1st respondent further argues that the petitioner has not demonstrated how the alleged publication infringed its rights or that the existing remedies under the tort of defamation are inadequate. In any event, it is argued, this Court lacks jurisdiction to determine civil tortious claims.
40. On the allegations of discrimination, the 1st respondent posits that the petitioner has not substantiated the claims by demonstrating which vehicles were impounded and which were released to lay a basis for discrimination. According to the 1st respondent, in its claim that the motor vehicle should be released as the other vehicles impounded were released, the petitioner gives an express admission of its culpability for breach, but seeks to be released without paying the levied fines.
41. Consequently, the 1st respondent urges that the petitioner has failed to demonstrate with reasonable precision the manner in which the 1st respondent has violated its constitutional rights as alleged or to establish a nexus between the 1st respondent and the said violations. Hence, the 1st respondent argues that the petitioner has failed to satisfy the principles settled in Anarita Karimi Njeru Vs Republic (1979) 1 KLR 154, and the petition should be dismissed with costs.
D. Viva Voce Evidence
42. On 13th November 2024, this Court directed that the petition be heard by way of viva voce evidence. Subsequently, the matter was heard on 2nd 0ctober 2025, and 19th March 2026, with the petitioner calling four witnesses, Joseph Muia Daudi (hereinafter PW1), Muli Kikuvi (hereinafter PW2), Joseph Kathae Ndunda (her
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1. The petitioner is a limited liability company and the registered owner of a motor vehicle, Isuzu FVZ registration No. KDM 107V and a trailer registration No. ZH2351 (hereinafter referred to as the motor vehicle). The motor vehicle is jointly owned with Sidian Bank Limited, the financiers under a Vehicle and Assets Finance. The petitioner is in the transportation business, ferrying construction materials, waste materials, farm produce, among others. The 1st respondent is a state corporation responsible for the development, rehabilitation, management and maintenance of National Trunk Roads. The 2nd respondent is the Chief Legal Adviser of the Government of Kenya and has been sued in that capacity.
2. On 18th January 2024, the petitioner's motor vehicle, while transporting sand, was impounded and detained by the 1st respondent’s officials under the provisions of the East African Community Vehicle Load Control Act, 2016 (hereinafter EACVLCA) and East African Community Vehicle Load Control (Enforcement Measures) Regulations, 2018 (hereinafter Regulations, 2018). The circumstances leading to the impoundment and detention are in dispute between the parties in this petition.
3. On 21st February 2024, this Court (Olel J) determined the petitioner’s application dated 8th February 2024 seeking conservatory orders, and directed the 1st respondent to release the motor vehicle to the petitioner. The 1st respondent disregarded the court orders, and the petitioner filed contempt of court proceedings vide an application dated 11th March 2024. The 1st respondent also filed an application dated 15th March 2024, seeking to set aside the orders of 21st February 2024. Later, the 1st respondent released the motor vehicle on 26th March 2024 and abandoned its application dated 15th March 2024.
B. Petitioner’s Case
4. By a petition dated 8th February 2024 and amended on 18th February 2025, which was admitted by this Court on 4th March 2025, the petitioner challenges the interception, arrest and detention of the motor vehicle by the 1st respondent’s officials. It also opposes the charge of Kshs 46,898,643.00 as a fee for overloading under the EACVLCA and Regulations, 2018. The petitioner contends that the officials of the 1st respondent unlawfully, maliciously and unfairly immobilised and impounded the motor vehicle.
5. The petitioner avers that on 18th January 2024, its motor vehicle was transporting sand along an unmarked, unpaved dirt road off Mombasa Road, at the Katumani Junction area near Konza Technopolis when the 1st respondent’s officials, while aware that the motor vehicle was not on a tarmac road or a road under Class S, A, or B, unlawfully impounded the motor vehicle, forcefully managed and drove it to the Athi River Weighbridge Station, hurriedly weighed it and condemned the petitioner to pay an overloading fine of Kshs 46,898,643.00.
6. In addition, the petitioner contends that the 1st respondent imposed storage charges of USD 50 per day from the third day of non-payment of the fine until payment in full; and threatened to sell the motor vehicle by auction to recover the fine and charges, if the fine remained unpaid within sixty days of impoundment. Further, it is the petitioner’s case that the fine and charges were imposed without affording it a fair opportunity to be heard in an independent, judicial process in violation of its rights to a fair hearing.
7. It is also asserted that upon taking possession of the motor vehicle from the 1st respondent as directed by this Court, the motor vehicle had been vandalised, and parts of an estimated value of Kshs 1,500,000.00 were removed by the 1st respondent’s officials, occasioning it losses. Furthermore, the petitioner pleads that after the impugned impoundment, the 1st respondent caused to be published a defamatory article in the Nation Newspaper, on 19th January 2024, describing the petitioner as ‘few selfish individuals’ and misinforming the readers that the motor vehicle had been impounded with a load in excess of 54,000 kilograms, leaving out the information that the arrest was made at an untarmacked and unmarked road. The petitioner also urges that this was prejudicial and caused loss of business. Moreover, that the publication was made without affording it the right of reply in violation of its rights to fair administrative action, information, correction and deletion of untrue and misleading information and access to justice.
8. It is the petitioner’s further case that the 1st respondent waived fines and released impounded vehicles from its various weighbridge stations. It argues that the act of pardoning some cargo transporters and waiving the fines, irrespective of whether lawfully or unlawfully, yet maintaining fines against it, is an act of direct discrimination contrary to the Constitution.
9. The petition is supported by the affidavit sworn by Joseph Kathae Ndunda, the petitioner’s director. He avers that the petitioner is the registered and beneficial owner of the motor vehicle, having purchased it through an Asset Finance Facility with Sidian Bank for Kshs 12,271,500.00, together with an insurance funding of Kshs 300,400.00. He further avers that under this Facility, the petitioner has an obligation to pay a monthly instalment of Kshs 363,174.10 and further Kshs 32,310.93 on the 22nd day of each month, failure to which the motor vehicle, the security of other motor vehicle registration No.s KDC 903R and KDC 511E and property Nairobi/Block/82/1302 would be forfeited. He relies on Exhibits JKN-01 and JKN-02, the logbook and the Facility Letter. He further states that the petitioner advances the income from its transportation business to service the said facility, and the loan balance at the time of filing the petition was Kshs. 11,720,113.90. He relies on the bank statement marked as JKN-03.
10. Thereafter, he reiterates the averments in the amended petition as summarised in the foregoing paragraphs and relies on the following: the annexures marked as JKN-04 as proof that the petitioner was at the material time authorized to carry out the transportation business; and the 1st respondent’s order requiring the petitioner to pay the fines and the storage charges, marked as JKN-05. To persuade the Court to grant the orders sought in the amended petition, he relies on the decision of the High Court in Petition No. 226 of 2019, Petition No. 13 of 2019, Petition No. 22 of 2017 and Petition No. 31 of 2015, marked as JKN-06, JKN -07, JKN-09, and JKN-10 respectively; and Court of Appeal in Appeal No. 67 of 2019 marked as JKN-08.
11. He also restates that: the 1st respondent’s officials unlawfully impounded the motor vehicle and forcefully drove it to the tarmac road and into the weighbridge station; the 1st respondent’s officials in an effort to find the petitioner culpable of overloading interfered with the cargo on the motor vehicle; the 1st respondent’s officials demanded for a bribe; and the 1st respondent continues to apply provisions of the law that have been declared unconstitutional. Therefore, that the 1st respondent’s actions or omissions violated the petitioner’s rights under Articles 27, 40, 47, 48 and 50 of the Constitution.
12. The petitioner relies on a second supporting affidavit sworn by Samuel Mutua Mutuku, the petitioner’s Transport and General Manager. He details the petitioner’s mode of operation, noting that normally, a trip starts at around 6:00 am, when the motor vehicle is driven to the river and loaded with sand between midnight and 4:00 am the following day. After loading, the motor vehicle is driven through an untarmacked path to an open field, and later offloaded to smaller tonnage lorries between 5:00 am and 1:00 pm.
13. It was stated that the motor vehicle is fitted with a GPS tracker, which generates a Trip Report and a GPS Report of the day’s activities. He stated that on 17th January 2024, the petitioner’s motor vehicle began its trip at 6:11 pm and was driven to the river bed near Erankau Primary School in Imaroro Ward, Kajiado East, Kajiado County for loading. The motor vehicle was loaded at about 2:15 am on 18th January 2024 and then driven to an open field near Katumani Junction, near Konza Technopolis, Machakos County.
14. Further, he depones that while awaiting confirmation of the petitioner’s orders at the field, at about 4:15 am, the 1st respondent’s officers wearing reflector jackets branded Ebenezer Commercial Workers, and in the company of two police officers, approached the motor vehicle and demanded a bribe. He averred that when the petitioner’s driver and turnboy failed to give the bribe, they were instructed by the 1st respondent’s officials to inform him, as the transport manager, of what was required. He argued that he explained to the 1st respondent’s officials that the petitioner was compliant and had the requisite permits to harvest sand, and instructed the driver to furnish them with the said paperwork.
15. He avers that despite the explanation, the 1st respondent’s officials took control of the motor vehicle, drove it towards Isinya-Kiserian Road and into Mombasa Road and to the Athi River Weighbridge Station, hurriedly weighed it and fined the petitioner Kshs 46,898,643.00 for overloading. He states that he caught up with the 1st respondent’s officials and the motor vehicle past the Machakos Junction at around 5:00 am, and realised that the motor vehicle was being driven by an officer of the 1st respondent. He added that at Mto wa Mawe on Mombasa Road, an accident occurred involving a motor vehicle and a pick-up. He adds that the police officers accompanying the 1st respondent’s officials called the traffic police and misrepresented that the petitioner’s driver had caused the accident. He produced in evidence the motor vehicle Trip Report as well as the GPS Report marked SMM-01 in support of the motor vehicle's trip from 17th January 2024 at 6:11 pm when the trip started, to 18th January 2024 at 9:08 am when the motor vehicle was parked at the 1st respondent’s Weighbridge Station.
16. Moreover, he avers that upon the release of the motor vehicle on 26th March 2024 by the 1st respondent, after inspection, he realised that several parts were missing, the motor vehicle was vandalised and damaged while in the 1st respondent's custody. He relied on the Inspection Certificate and the receipt for part of the repairs marked SMM-03. It was his further averment that the petitioner collects about Kshs. 700,000.00 per month as revenue from the transportation business using the motor vehicle, where Kshs 400,000.00 is utilised to service the loan facility, Kshs 100,000.00 to pay salaries and wages, Kshs 80,000.00 to obtain the permits for harvesting sand from the County Government, Kshs 40,000.00 for the motor vehicle maintenance and repairs, and retains Kshs. 80,000.00 as profits. He also avers that he was aware of the publication by the 1st respondent in the Daily Nation and produced a copy of the publication marked SMM-02. He further states that the 1st respondent had released trucks impounded in Kiambu County and preferentially waived the penalties imposed while sustaining the alleged fines against the petitioner. He relied on the Daily Nation publication marked as SMM-04.
17. The third supporting affidavit was by Muli Kikuvi, the petitioner’s driver, wherein he restates the averments by Samuel Mutua Mutuku. He further states that, in normal operations, the motor vehicle is loaded at night and driven to an open field where it is offloaded to smaller lorries. He avers that on 18th January 2024 at around 4:00 am, he was at a field in the Katumani junction area near Konza at a place called Masitimani, waiting to offload the sand upon confirmation of orders by the petitioner. He states that two 1st respondents’ officers and two police officers operating the Athi River Weighbridge in two double-cabin pick-ups approached the motor vehicle.
18. He avers that the officers informed Samuel Mutua Mutuku that they were on patrol and instructed him to turn off the motor vehicle engine, and requested a bribe of Kshs. 50,000.00. When the officers were informed that the driver did not have the requested amount, one of the 1st respondent’s officials snatched the motor vehicle ignition keys, ordered him and the driver to move to the back of the driver’s seat, and drove towards Mombasa Road.
19. He stated that he informed the Transport Manager, who tried to intervene; however, the 1st respondent's official continued to drive the motor vehicle on Mombasa Road until around 5:24 am when the official caused an accident. He argues that the police officers accompanying the 1st respondent’s officials called the traffic police and misrepresented to them that it was the petitioner’s driver who had caused the accident. He asserts that thereafter they proceeded to the Weighbridge Station, where he was detained, the 1st respondent officials weighed the motor vehicle, and imposed a fine of Kshs 46,898,643.00.
20. The fourth supporting affidavit was sworn by Joseph Muya Daudi, the petitioner’s turnboy, who restates the averments by the petitioner’s driver verbatim.
Particulars of breach
21. The petitioner contends that the unlawful impounding and detention of its motor vehicle and the imposition of a fee of Kshs 46,898,643.00 without a proper adjudicatory and judicial process, and the levying of unlawful storage charges, contravene its rights to property, fair hearing and freedom against discrimination.
22. The petitioner further urges that the continued detention of its motor vehicle, including the cargo, was prejudicial to its business, resulting in losses, and exposed it to possible distress by its financier bank, contrary to its right to property. It is also the petitioner’s case that the vandalisation of its motor vehicle while in the custody of the 1st respondent necessitated repairs costing Kshs 1,500,000.00, accentuating the breach of its property right.
23. In addition, it is the petitioner’s case that the 1st respondent’s officials’ actions are unlawful, unreasonable, irrational, unfair, against the unreasonableness principle, and contrary to the rules of natural justice. Principally, the impoundment of the motor vehicle and the imposition of the impugned fines without due process or according it a hearing was in disregard of the rules of natural justice enshrined in Article 47 of the Constitution and the protection by the Fair Administrative Action Act, 2015. The petitioner also pleads violation of its rights against discrimination grounded on the 1st respondent’s alleged preferential waiver of fines imposed on other cargo transporters.
Reliefs Sought
24. Based on the foregoing, the petitioner seeks the following reliefs;
a) A permanent injunction restraining the 1st respondent, its officers and/or servants from impounding and detaining or interfering with the motor vehicle without affording the petitioner a fair hearing through a judicial process as contemplated under Article 50 as read together with Articles 47 and 48 of the Constitution;
b) A declaration that the 1st respondent’s action of levying a fine was in contravention of Regulation 15(5) of the Kenya Roads (Kenya National Highways Authority Regulations, 2013, without affording the petitioner due process, violated the rights of the petitioner under Articles 40, 47 and 50 of the Constitution;
c) A declaration that Regulations 14 and 15 of the Kenya Roads (Kenya National Highways Authority), 2013 contravene Articles 40, 47, 50 and 159(1) of the Constitution;
d) An order of Judicial Review in the nature of Certiorari be issued to remove to this Court for the purpose of being quashed the decision made by the 1st respondent on 18th January 2024, imposing a fine of Kshs 46,898,643 and storage fees;
e) An award of special damages of Kshs 500,000.00 per month as compensation for loss of use, business and earnings incurred during the immobilisation of the subject motor vehicle occasioned by the 1st respondent from 18th January 2024 to 26th March 2025;
f) An award of special damages in the sum of Kshs 1,500,000.00 being the cost of repairs resulting from the vandalisation of the motor vehicle during the period of immobilisation at the 1st respondent’s facility;
g) An order for deletion of the publication made on the Daily Nation on 19th January 2024 and publication of an offer for amends to the petitioner, of similar prominence;
h) An order requiring the 1st respondent to openly and publicly publish an account of fines, penalties and storage charges obtained from cargo transporters in Athi River Weighbridge from 1st January 2023 to the date of delivery of the judgment of this Court;
i) An award of general damages for the violation of constitutional rights;
j) A structural interdict of this Court’s own terms or permanent order that the 2nd respondent must ensure that any laws or regulations in force governing the operations of the 1st respondent or the use of the Kenyan Roads or weighbridges, must comply with the rules of natural justice and provisions of the Constitution of Kenya, any such damages occasioned in the absence thereof, be paid by the responsible officer;
k) Costs; and
l) Any other relief that the court deems fit.
C. The 1st Respondent’s Case
25. The 1st respondent filed a cross petition dated 29th May 2024 wherein it avers that while its mobile patrol team was in the Lukenya area in Athi River, along Nairobi-Mombasa Road, they saw a motor vehicle, and suspected it was overloaded. Further, when the 1st respondent’s officials flagged it down to assess it for overloading, the petitioner’s driver attempted to drive off and in the process, caused an accident by hitting a pick-up registration No. KDK 114D. The 1st respondent asserts that the driver tried to flee the accident scene, but the police officers accompanying the patrol team caught up and called for reinforcement from the Athi River Traffic base, who later processed the accident scene.
26. The 1st respondent contends that at the weighbridge, the motor vehicle was weighed in the presence of the petitioner’s director and driver, and it was found overloaded in excess with 29,940 kgs on the gross vehicle weight, above the legally permissible weight of 54,000kgs. The 1st respondent urges that the motor vehicle was in use along a Regional Trunk Road Network as defined under the First Schedule of the EACVLCA, and for this reason the driver was issued with the weighing report and the motor vehicle detained under the EACVLCA; the driver was also issued with the weighbridge ticket and advised that a fine of USD 292,321.95 equivalent to Kshs 46,898,643.00 had been levied under the EACVLCA and the Regulations, 2018. It contends that when the fine remained unpaid, the motor vehicle was detained in terms of Section 17(1) (4) to (7) of the said Act.
27. The 1st respondent also affirms that when the motor vehicle was released to the petitioner, subject to the orders of the Court, it was reweighed in the presence of the petitioner’s representative; and the overload sand was redistributed to four other lorries, registration numbers KDM 107V, KCA 958P, KBS 208V, and KBY 520J. Moreover, it is the 1st respondent’s case that, contrary to Section 17(7) of the EACVLCA, the petitioner is in arrears of the fine of Kshs. 46,898,643.00 and accumulated storage fees of USD 3,400.00 calculated at a rate of USD 50 per day, for the sixty-eight days the motor vehicle was detained.
28. Consequently, the 1st respondent seeks the following reliefs in its cross-petition:
i. Orders compelling the petitioner to pay the overload fees of USD 292,321.95 (Kshs. 46,898,643.00), which sum is levied as per the EACVLCA and the Regulations, 2018 and storage fees of USD 3,400.00 charged at the rate of USD 50 per day;
ii. Orders compelling the petitioner to issue the 1st respondent security for the payment of the overload fees and, in default, the 1st respondent be at liberty to seek enforcement for the payment thereof;
iii. Interests in the amounts in (i) above; and
iv. Costs.
29. In its response to the amended petition and support of its cross-petition, the 1st respondent filed an affidavit by Dr. Eng. Michael Ngala, the 1st respondent’s Deputy Director, Axle Load Control Department, on 29th May 2024 and a supplementary affidavit on 21st May 2025. It is urged that the 1st respondent has the mandate to manage, develop, rehabilitate and maintain national trunk roads under section 4(1) of the Kenya Road Act. Further, the 1st respondent manages various weighbridges in Kenya under Section 4(2)(d) of the same Act; under Section 4 of the Kenya Road Act, the 1st respondent has the obligation to ensure adherence to the rules and guidelines on axle control prescribed under the Traffic Act and the Regulations under the Kenya Road Act, 2007, among other obligations; under Section 22(1)(c) of the Kenya Roads Act, the 1st respondent has the powers to measure and assess the weights, dimensions and capacities of vehicles using any road and to provide measures to ensure compliance with rules relating to axle load control, other provisions of the Traffic Act, Regulations under the Traffic Act and the EACVLCA; and in the enforcement of the outlined mandate, the Kenya Roads Act, the Traffic Act and the EACVLCA bind the 1st respondent.
30. He contends that pursuant to the provisions of EACVLCA, when it is established that a motor vehicle is overloaded, the vehicle in question is prohibited from continuing with the journey unless the fees on overloading are paid and the excess weight offloaded. Further, he contends that Section 17 of the EACVLCA clearly sets out a detailed procedure in instances where an overload is detected, and this procedure does not require a party to be charged in a court of law. On the contrary, a transporter is required to pay the fine prescribed in the said EACVLCA and Regulations, 2018.
31. He reiterates the averments in the cross appeal, arguing that the motor vehicle was intercepted by the 1st respondent’s mobile team officials and police officers on 18th January 2024 at Small World, in Lukenya, Athi River, along Mombasa Road on the Nairobi-Mombasa Highway, on the Northern Corridor of the Regional Trunk Road (as defined under Section 3 and the First Schedule of the EACVLCA). He avers that, therefore, the EACVLCA and Regulations, 2018, were the applicable legal framework, and not the Traffic Act. He specifies that when the petitioner’s driver was flagged down, he defied the order to stop and attempted to drive off, causing an accident and was later stopped by the police officers accompanying the 1st respondent's patrol team with reinforcement from the Athi River Traffic Base. He relies on the Police OB No. 18/18/01/2024 and abstracts marked as MN1 and MN2, respectively, and the Tracking Report of the 1st respondent’s motor vehicle used for mobile operations marked MN 10.
32. It is his further averment that the motor vehicle was driven to the Athi River Weighbridge station, was weighed, and when it was determined that it was overloaded, a fine of USD 292,321.95 (Kshs. 46,898,643.00) was levied under the EACVLCA; and a weighbridge ticket was issued. He relies on the Weighbridge ticket marked MN3. He also emphasises that after the issuance of the ticket, neither the petitioner nor its agents made any objections or lodged an appeal in line with the provisions of Section 17(1)(4) of the EACVLCA as read together with Regulations, 2018.
33. He reiterates the averments by the 1st respondent in the cross petition verbatim, relying on the following documents annexed to the affidavit: a copy of the weighbridge ticket dated 26th March 2025 issued after re-weighing and distribution of the excess weight to three lorries marked MN4; the second ticket issued after reweighing, in comparison to the initial weighbridge ticket issued on 18th January 2024 marked MN5; weighbridge tickets of the weighs of the three lorries before the excess load was loaded marked as MN6; photos of the offloading exercise marked as MN7; weighbridge tickets after offloading and redistribution to the three lorries marked as MN8; Police statements detailing where the motor vehicle was flagged down, who was driving the motor vehicle, and the point of accident, marked at MN 9.
34. He further states that the procedure set out in Section 17 of the EACVLCA and Regulation 11 of the Regulations, were exhaustively adhered to, to wit, the weighing of the vehicle; issuance of a weighing report setting out the overload particulars and the fine payable; detention of the motor vehicle if found overloaded, under Section 17(6) of the EACVLCA and Regulations 13 and 14 of the Regulations, 2018; issuance of an objection to the weighing report by way of appeal against the fine levied; overload; detention of the vehicle and charge of storage fees of USD 50 per day after the prescribed period; after the first sixty days the respondent may issue a notice of sale published in the Gazette; and sixty days after the publication of the notice, the 1st respondent may apply to the national courts for orders to auction the vehicle and the load. Consequently, he states that, having followed the process, a fine was imposed and the storage charges accrued, which remain unpaid, or a security guarantee for payment issued.
35. In response to the amended petition, he asserts that the detention of the motor vehicle and imposition of the fine, as well as the storage charges, was done in the enforcement of the EACVLCA and cannot be termed unlawful, unreasonable, irrational, unfair, perverse or against the rules of natural justice. He asserts that the EACVLCA provides an avenue to challenge any weight or fine imposed, and as the petitioner has not made that challenge, it has therefore failed to exhaust the remedies available. Similarly, the 1st respondent avers that, subject to Section 67 of the Kenya Roads Act, the petitioner was required to serve its Director General with a mandatory one-month notice outlining its grievances for redress before filing the petition. Furthermore, the 1st respondent argues that since the petitioner did not appeal against the weighbridge ticket under Section 17(4), the petitioner is bound to pay the outstanding fines and charges, and the petitioner’s claims are misplaced. For these reasons, it is contended that the 1st respondent did not breach the petitioner's proprietary rights.
36. As for the petitioner's claim for vandalisation of the motor vehicle and mechanical interference while in the 1st respondent’s possession, the 1st respondent argues that the petitioner's claim is an afterthought, as at no time was the claim for vandalisation raised; no particulars have been pleaded, or an assessment report filed detailing any vandalisations; and in any event, the vehicle was locked and parked, the parking area is under CCTV surveillance. Further, at the time of release, the motor vehicle only had flat tyres, which were replaced.
37. The 1st respondent also argues that the petitioner has not disputed that the provisions of the EACVLCA apply to this case. Further, it has not demonstrated how they were denied an opportunity to be heard through an independent judicial process. Moreover, the 1st respondent posits that the actions of its officials were in line with the legal requirements and procedures applicable and were not discriminatory; the petitioner had not demonstrated the nature of discrimination, the party affected by the discrimination, when it was discriminated against, and what loss is suffered as a result of the discrimination.
38. As regards the case for breach of the right to fair administrative action, the 1st respondent avers that the petitioner has not demonstrated any infringement of the Fair Administrative Act or any unlawfulness or illegality in the process. It insists that the petitioner was present and involved in the entire process of stopping, weighing, and detaining the motor vehicle, as well as in the re-weighing, removal, and redistribution of the load, and did not raise any such objection.
39. On the defamation claim, the 1st respondent argues that the same does not disclose any constitutional violations; rather, it is a purely private civil claim raised in the guise of a constitutional petition. The 1st respondent further argues that the petitioner has not demonstrated how the alleged publication infringed its rights or that the existing remedies under the tort of defamation are inadequate. In any event, it is argued, this Court lacks jurisdiction to determine civil tortious claims.
40. On the allegations of discrimination, the 1st respondent posits that the petitioner has not substantiated the claims by demonstrating which vehicles were impounded and which were released to lay a basis for discrimination. According to the 1st respondent, in its claim that the motor vehicle should be released as the other vehicles impounded were released, the petitioner gives an express admission of its culpability for breach, but seeks to be released without paying the levied fines.
41. Consequently, the 1st respondent urges that the petitioner has failed to demonstrate with reasonable precision the manner in which the 1st respondent has violated its constitutional rights as alleged or to establish a nexus between the 1st respondent and the said violations. Hence, the 1st respondent argues that the petitioner has failed to satisfy the principles settled in Anarita Karimi Njeru Vs Republic (1979) 1 KLR 154, and the petition should be dismissed with costs.
D. Viva Voce Evidence
42. On 13th November 2024, this Court directed that the petition be heard by way of viva voce evidence. Subsequently, the matter was heard on 2nd 0ctober 2025, and 19th March 2026, with the petitioner calling four witnesses, Joseph Muia Daudi (hereinafter PW1), Muli Kikuvi (hereinafter PW2), Joseph Kathae Ndunda (her
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