Republic v Minister for Roads & Public Works & another Ex-Parte Kyevaluki Services Limited [2018] KECA 173 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a transport company failed in its challenge to weighbridge overload tickets because it attached the wrong documents to its case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 28 weighbridge tickets and attendant removal orders constituted a 'decision' capable of being quashed by an order of certiorari under Order 53 Rule 7 of the Civil Procedure Rules
- 2.Whether the 2nd respondent's use of load capacities determined by an Inspector under section 56(1) of the Traffic Act was erroneous, arbitrary, unreasonable or capricious
- 3.Whether a writ of mandamus could issue to compel the respondents to adopt the gross vehicle weight mode of determining load capacity
- 4.Whether an order of prohibition was available in respect of the respondents' adoption of the Inspectors' method of load determination
Key legal issues
#Whether weighbridge tickets generated by machine calibration constitute a quashable decision
They do not. The decision the appellant should have challenged was the respondents' adoption of the Inspectors' method of load determination, which was never annexed to the verifying affidavit as required by Order 53 Rule 7 of the Civil Procedure Rules.
Order 53 Rule 7 confines certiorari to proceedings, decisions, orders, warrants, commitments, convictions, inquisitions or records. The 28 weighbridge tickets were generated through calibration of machines operated without any Inspector's subjective input; the Inspectors merely formed an opinion on the tickets afterwards. The only real 'decision' was the adoption of the Inspectors' method, which was never annexed to the verifying affidavit nor was any explanation for the omission given. Certiorari therefore could not issue.
Whether mandamus could compel the respondents to use the gross vehicle weight mode under the Twelfth Schedule
No. Section 56(1) conferred an unconditional discretion on the respondents to choose either the manufacturer's chassis capacity or the Inspector's determination, and no legal right of the appellant was breached by the choice made.
Section 56(1) provides two permissible modes of determining load capacity and donates an unconditional, unqualified discretion to the respondents, lawfully exercised when they elected to use Inspectors. No provision of law obligated the respondents to consult or hear the appellant before selecting a mode, so no enforceable right with a corresponding duty existed. Compelling one mode would interfere with lawful statutory discretion; only legislative amendment could alter that position.
Whether prohibition was available against the respondents' method of load determination
No. Prohibition is a prospective remedy and the appellant's complaints related to past action; nor was it available pre-emptively since the respondents' conduct was underpinned by statute.
Case law establishes that prohibition looks to the future. The impugned use of Inspectors had already occurred, resulting in the 28 tickets and removal orders, so prohibition could not issue to rectify a completed decision. Further, as the discretion to use Inspectors was lawfully conferred by statute, the relief was unavailable as a pre-emptive remedy in the absence of amendment to the statutory provisions.
Legal principles established
#- Only what Order 53 Rule 7 specifies - proceedings, a decision, an order, a warrant, a commitment, a conviction, an inquisition or a record - is capable of being quashed by certiorari, and it must be in writing and annexed to the verifying affidavit
- Mandamus cannot issue to curtail or dictate the manner of exercise of a discretion that a statute confers unconditionally on a public body
- An order of prohibition is prospective in nature and cannot rectify or quash a decision already made, nor act as a pre-emptive remedy against conduct lawfully grounded in statute
- The Court of Appeal will not interfere with a discretionary decision of a judge unless the judge misdirected himself in law, misapprehended the facts, took into account matters he should not, failed to take into account matters he should, or the decision is plainly wrong
Court orders
#- 1.Appeal dismissed in its entirety
- 2.Costs of the appeal awarded to the 2nd respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- Misc. Application No. 365 of 2010
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court under the appellate jurisdiction over judicial review (Law Reform Act, Cap 26, sections 8 and 9; Order 53 Civil Procedure Rules)
Relief refused
#Certiorari to quash the weighbridge tickets and removal orders
The tickets were generated by calibration of weighbridge machines, not a decision of the Inspectors; and the actual decision challenged (adoption of the Inspectors' method) was never annexed to the verifying affidavit as required by Order 53 Rule 7
Mandamus to compel use of chassis manufacturer's load capacities
Section 56(1) conferred an unconditional statutory discretion on the respondents to choose either mode, and no enforceable legal right or corresponding duty existed
Prohibition against future use of Inspectors' load determinations
Prohibition looks to the future and the complaint concerned a past action; and it was not available as a pre-emptive remedy absent amendment of the statute
Costs
Appeal dismissed in its entirety with costs to the 2nd respondent who participated in the prosecution of the appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of all the above assessment and reasoning is that we find no merit in this appeal. It is accordingly dismissed in its entirety with costs to the2ndrespondent who participated in the prosecution of the appeal.
Order 53 Rule 7 of the CPR is explicit on what is capable of being quashed by the order of certiorari namely, proceedings, a decision, an order, a warrant, a commitment, a conviction, an inquisition or a record.
the writ of mandamus could not issue to curtail the exercise of discretion statutorily underpinned and which could only be interfered with through an amendment to the legislation under which the discretion was exercised
Judicial review is concerned not with private rights or the merits of the decision being challenged but with the decision making process
Issues in the judgment
#The case is styled 'Republic v Minister for Roads and Public Works, Ex-parte Kyevaluki Services Limited' but Republic is listed as APPELLANT; the true appellant is the ex-parte applicant Kyevaluki Services Limited, whose name appears only in the ex-parte line
Inconsistent spellings of the Gathenji case name ('Gathenji', 'Gathanjui') and inconsistent citation details of the same case within the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Minister for Roads & Public Works & another Ex-Parte Kyevaluki Services Limited [2018] KECA 173 (KLR)", Case Analysis (2018). Civil Appeal No. 182 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/173/eng@2018-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.