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Court of AppealAllowedCivil Appeal 67 of 2019· [2022] KECA 738 (KLR)

Premji Patel Company Limited v Director General Kenya National Highways Authority (KENHA) & 3 others

Court of Appeal
27 May 2022
SKS. GATEMBU KAIRUPNP. NYAMWEYAJLJ. LESIIT
5,961 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled KENHA cannot detain trucks or demand USD 2,000 fees without first proving an offence in court.

What this practically means

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Executive summary

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The appellant's truck, KBN 343N Isuzu Truck, was stopped during snap checks on the Malindi-Mombasa road in March 2015. Its driver allegedly ran away, the number plates were removed, and an order was issued requiring the vehicle to be detained at Mtwapa Holding Yard until the owner paid USD 2,000 for absconding a mobile weighbridge, pursuant to Regulations 14(4) and 15(3) of the Kenya Roads (Kenya National Highways Authority) Regulations, 2013. The High Court dismissed the appellant's judicial review application for prohibition, certiorari and mandamus, holding that the fee was automatically payable and the detention lawful. The Court of Appeal allowed the appeal on a single issue: whether those regulations empowered KENHA to impound and detain the truck until payment of USD 2,000, and whether the provisions were constitutional. Reviewing the conflicting High Court authorities, the Court aligned itself with Disaranio Limited, holding that the regulations expressly create offences which must be proved before a court of law before any fee or penalty is imposed, and that Regulation 15(5) is substantively ultra vires the parent Act. The Court also found the factual finding that the driver and owner refused weighing was unsupportable, resting only on contested and untested assertions by KENHA. The High Court ruling was set aside, prayers 1 and 2 of the application were allowed - prohibiting further detention and quashing the detention order - with costs to the appellant against the 1st and 2nd respondents.

Key legal issues

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01

Whether KENHA could impose a USD 2,000 absconding fee and detain the vehicle extrajudicially under Regulations 14 and 15

Holding

No. The fee provisions amount to penal provisions imposing fines without due process; Regulation 15(5) is ultra vires the parent Act, and the imposition of the fee without a hearing violated Articles 40, 47 and 50 of the Constitution.

Reasoning

The Court reviewed the line of High Court authorities and aligned itself with Nyamweya, J.'s decision in Disaranio. The regulations expressly create offences; where an offence is alleged, the Constitution requires charge, notice and public trial before a court. A notification of a weighbridge report cannot constitutionally form the basis for imposing fees. The Court also found the factual basis for the absconding finding was contested and untested.

p. 9
02

Whether the High Court Judge's finding of fact that the driver and owner refused to have the vehicle weighed was sustainable

Holding

No. The finding was unsupportable on the evidence, as the officers who issued the Order did not depose, and there was only the contested and untested word of KENHA that the vehicle had absconded.

Reasoning

The persons who issued the Order did not depose as to what happened; the driver also did not depose. There was only contested and untested evidence from KENHA on which the appellant was effectively convicted, its vehicle detained and a penalty imposed. A weighbridge ticket showed the axle load was within limits, and KENHA's claim that cargo had been offloaded was unexplained.

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Whether Regulation 15(5) is ultra vires the Kenya Roads Act

Holding

Yes. It provides for fines not allowed by, and beyond the powers given by, the parent Act.

Reasoning

Following Disaranio and Martin Mbatha Mutisya, the Court held that the parent Act did not authorise fines of the magnitude prescribed, so Regulation 15(5) was substantively ultra vires section 46(2) of the Kenya Roads Act and beyond the Authority's statutory powers.

p. 10

Legal principles established

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  • A statutory body's powers under the Kenya Roads Act cannot be construed as authorising disregard of any law; regulations providing for fines beyond the parent Act are ultra vires.
  • Regulation 15(5) of the Kenya Roads (Kenya National Highways Authority) Regulations, 2013 is substantively ultra vires because it provides for fines not allowed by the parent Act.
  • Where regulations expressly create offences, a person must be charged and tried before a court of law before any fee or penalty is imposed; a weighbridge report cannot constitutionally be the basis for imposing fees.

Court orders

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  1. 1.The ruling and order of the High Court dated 28th July 2017 and delivered on 17th October 2017 dismissing the appellant's application dated 17th June 2015 is set aside
  2. 2.Prayers 1 and 2 of the said application are allowed in substitution
  3. 3.The Officer Commanding Mtwapa Police Station and police officers under his control are prohibited from further detaining, holding, confining and/or otherwise impounding the applicant's motor vehicle registration number KBN 343N Isuzu Truck at Mtwapa Holding Yard or at any other police station or other location pursuant to the order issued on 19th March 2015
  4. 4.The decision and/or directive of the respondents contained in the order to resume vehicle from road or public place issued on 19th March 2015, ordering detention of the truck until payment of USD 2000, is quashed
  5. 5.The appellant to have the costs of the application before the lower court and of this appeal, borne by the 1st and 2nd respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 159(1)
  • Traffic ActSections 55, 56, 58, 105, 106 (including 106(4A)) and 107
  • Kenya Roads ActSections 3, 4, 22(1)(c), 22(2)(d), 22(3) and 46
  • Kenya Roads (Kenya National Highways Authority) Regulations, 2013 (Legal Notice No. 86)Regulations 10, 14(2), 14(4), 15(3) and 15(5)
  • VAT ActSection 44

Cases cited (10)

  • Martin Mbatha Mutisya vs Kenya National Highways Authority
    [2017] eKLR

    That Regulation 15(5) is ultra vires the parent Act

  • Margaret Miano vs. Kenya National Highway Authority
    Mombasa High Court Petition No. 23 of 2015 [2015] eKLR

    That the USD 2,000 'fee' is in substance a penal fine which must be construed strictly and proved

  • R vs. Kenya National Highways Authority Ex parte John Mwaniki Kiarie
    [2016] eKLR

    That Regulation 15 makes KENHA complainant, witness, investigator, prosecutor and judge - nemo judex in sua causa

  • Disaranio Limited vs. Kenya National Highways Authority & Attorney General
    [2017] eKLR

    That Regulations 14 and 15 contravene Articles 40, 47, 50 and 159(1) and that Regulation 15(5) is ultra vires

  • Blue Jay Investment Limited vs. Kenya National Highways Authority
    [2014] eKLR

    That the registered owner who bypasses a weighbridge must pay the USD 2,000 fee; relied on by both parties

  • Buzeki Enterprises Limited vs. Kenya National Highways Authority
    [2014] eKLR

    That the regulations were made under section 22(2)(d) and 46 of the Act and the fee was lawful unless declared otherwise

  • Agnes Ongadi vs. The Hon. Attorney General and Kenya National Highways Authority
    HCCC No. 3 of 2015

    That the fee imposed is not a fine but a penalty for regulatory infraction and is lawful

  • Republic vs. Tribunal of Inquiry to investigate the conduct of Tom Mbaluto & others, Ex parte Tom Mbaluto
    [2018] eKLR

    That new issues not raised before the High Court cannot be entertained on appeal

  • George Owen Nandy vs. Ruth Watiri Kibe
    Civil Appeal No. 39 of 2015

    Same proposition on new issues on appeal

  • Galaxy Paints Company Ltd. vs. Falcon Guards Ltd.
    Civil Appeal No. 219 of 1998 [1999] 2 EA 83

    That a man may not be a judge in his own cause

On appeal from
High Court of Kenya at Malindi
Judicial Review application (motion dated 17th June 2015)
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over a ruling of the High Court in judicial review proceedings

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Premji Patel Company Limited v Director General Kenya National Highways Authority (KENHA) & 3 others", Case Analysis (2022). Civil Appeal 67 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/738/eng@2022-05-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.