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Court of AppealPartially AllowedCivil Appeal (Mombasa)

Mombasa Water Products Ltd v Kenya National Highways Authority (Civil Appeal E056 of 2023) [2025] KECA 663 (KLR)

Court of Appeal of Kenya
11 April 2025
5,853 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that a transporter challenging KeNHA overload fees at the weighbridge could go straight to court because no actual appeal mechanism existed.

What this practically means

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Executive summary

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This is a first appeal from the High Court at Mombasa (Mativo, J.), which had dismissed the appellant's constitutional petition challenging the detention of its motor vehicle and imposition of overload fees and detention charges by the Kenya National Highways Authority at the Dongo Kundu weighbridge. The High Court had upheld a preliminary objection on jurisdiction and held that the appellant was barred by the doctrine of exhaustion, since section 17(4) of the East African Community Vehicle Load Control Act, 2016 (EACVLCA) envisages appeals against overload fees, or alternatively an exemption under section 9(4) of the Fair Administrative Action Act. The Court of Appeal, hearing only the question whether the appellant exhausted available administrative remedies, examined the East African Community Vehicle Load Control (Enforcement Measures) Regulations, 2018 and found that, although section 17(4)(a) and (b) of the Act contemplates appeals, no appellate mechanism is in fact provided in the Regulations. A tick-box on the prescribed Form EACV-1 allowing dissatisfaction to be expressed was of no consequence without an appeal route, and the certificate actually issued to the appellant omitted even that provision. Since knowledge of a remedy is central to the exhaustion doctrine, there was no alternative remedy the appellant was obliged to exhaust. The Court set aside the High Court judgment of 9th November 2021 and, exercising its discretion under rule 33 of the Court of Appeal Rules, remitted the petition to the High Court at Mombasa for hearing on its merits, awarding costs of the appeal to the appellant and leaving High Court costs to abide the outcome of the petition. The appeal succeeded on the exhaustion ground alone; no findings were made on the alleged constitutional violations or damages.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant exhausted the available administrative remedies before approaching the court vide the constitutional petition filed in the High Court
  2. 2.What order should the Court issue based on the answer to the foregoing

Key legal issues

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01

Whether the appellant was bound to exhaust administrative remedies under the EACVLCA and its Enforcement Regulations before filing the constitutional petition

Holding

No. Although section 17(4)(a) and (b) of EACVLCA envisages an appeal against overload fees under regulations made under the Act, the 2018 Enforcement Measures Regulations contain no appellate mechanism; the appellant therefore had no alternative remedy to exhaust.

Reasoning

The Court examined section 17(4) of the EACVLCA and Part III of the 2018 Regulations and found no appeal mechanism against a weighbridge decision. The tick-box on Form EACV-1 allowing expression of dissatisfaction was of no consequence without an appellate mechanism. Moreover, the certificate actually issued to the appellant omitted even that tick-box, so the appellant was unaware of any right of redress. Knowledge of a remedy is central to the exhaustion doctrine, so the doctrine could not be invoked against the appellant.

p. 9
02

Whether the High Court erred in holding that the appellant had to exhaust internal mechanisms or apply for exemption under section 9(4) of the Fair Administrative Action Act

Holding

Yes. Since no alternative remedy existed, the learned Judge erred in finding the petition barred by the exhaustion doctrine and in requiring an exemption under section 9(4) of the FAA.

Reasoning

The Court respectfully disagreed with the superior court's finding that an internal dispute resolution mechanism existed under the EACVLCA. As the regulations provided no appellate mechanism, the appellant was not mandated to utilise any alternative remedy before approaching the court, and the requirement to demonstrate exceptional circumstances under section 9(4) of the FAA did not arise. This ground alone justified allowing the appeal and setting aside the judgment below.

p. 10
03

What disposal was appropriate given that the appeal succeeded on a preliminary legal question

Holding

The Court exercised its wide discretion under rule 33 to set aside the judgment and remit the petition to the High Court at Mombasa for hearing on its merits, leaving High Court costs to abide the outcome.

Reasoning

Noting that the appeal turned on a preliminary question of law, the Court invoked rule 33 of the Court of Appeal Rules, which permits confirming, reversing or varying the decision below or remitting with directions. Relying on Oraro & Rachier Advocates v Co-operative Bank of Kenya Limited, it held that the rule clothes the court with wide judicial discretion to order retrial or remittal depending on the facts, and concluded the petition was eligible for retrial since the court was the only available avenue for the grievance.

p. 11

Legal principles established

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  • Where a statute envisages an appellate mechanism from an administrative decision, the subsidiary regulations must actually make provision for that mechanism; if they do not, there is no alternative remedy to exhaust before resorting to the courts.
  • Knowledge of a remedy goes to the heart of the doctrine of exhaustion; a party cannot be required to exhaust a remedy of whose existence it was not made aware.
  • Where there is a clear procedure for redress of any particular grievance by the Constitution or an Act of Parliament, that procedure should be strictly followed (reiterating Speaker of the National Assembly v Karume).
  • Under rule 33 of the Court of Appeal Rules, the Court has wide discretion, on its own motion, to remit proceedings to the High Court with directions where appropriate.

Court orders

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  1. 1.The appeal is allowed with costs to the appellant
  2. 2.The judgment of Mativo, J. delivered on 9th November 2021 is set aside
  3. 3.The constitutional petition is remitted for hearing and determination at the High Court in Mombasa
  4. 4.The costs at the High Court shall abide the outcome of the constitutional petition

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

Wrote the judgment

On appeal from
High Court of Kenya at Mombasa
Mombasa Constitutional Petition No. E037 of 2021
Jurisdiction invoked
First appellate jurisdiction of the Court of Appeal under Article 164 of the Constitution, exercising powers under rule 33 of the Court of Appeal Rules, 2022

Relief refused

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Determination of the appeal on the merits, including findings on the alleged violation of Articles 10, 47 and 50 and damages

The appeal was determined on a preliminary legal question and the petition was remitted for hearing on its merits

p. 10

Determination of whether a criminal offence of overloading exists under the EACVLCA

The issue was not a ground of appeal in the memorandum of appeal

p. 7

Costs

The appeal is allowed with costs to the appellant; the costs at the High Court shall abide the outcome of the constitutional petition.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We have perused the Regulations, and it is clear that no appellate mechanism is provided thereunder as envisaged under section 17(4) (a) and (b) of EACVLCA with regard to how a person found to have overloaded his vehicle is dealt with.
p. 9Absence of appellate mechanism in the Regulations
We emphasise that knowledge of perceived remedy goes to the heart of the doctrine of exhaustion since a party must be aware that there exists an appellate remedy in case they are dissatisfied with the decision at the weighbridge.
p. 9Knowledge of remedy as an element of the exhaustion doctrine
Given this lack of an appellate mechanism, it follows that there was no alternative dispute resolution remedy available to the appellant or any other transporter who is found to have overloaded.
p. 9Consequence of the regulatory gap for the exhaustion doctrine
We therefore allow the appeal with costs to the appellant and set aside the Judgment of the learned Judge (Mativo, J.) (as he then was) delivered on 9th November 2021 with orders that the petition subject of this appeal be remitted for hearing and determination at the High Court in Mombasa. The costs at the High Court shall abide the outcome of the constitutional petition.
p. 11Final orders and disposition

Issues in the judgment

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minor

The judgment alternates between 'Cap 408' and 'Kenya Roads Act, 2007' for the same statute, and states that the FAA 're-echoes Article 46' where the pleaded rights concern Article 47; the statutory citation of the FAA is also given as 'Cap 7L' which appears typographical.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mombasa Water Products Ltd v Kenya National Highways Authority (Civil Appeal E056 of 2023) [2025] KECA 663 (KLR)", Case Analysis (2025). Civil Appeal (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/663/eng@2025-04-11

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