https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9899

Kiarie & another v Kenya National Highway Authority (Petition E005 of 2024) [2026] KEHC 9899 (KLR) (29 June 2026) (Judgment) Neutral citation: [2026] KEHC 9899 (KLR) Republic of Kenya In the High Court at Machakos Petition E005 of 2024 RC Rutto, J June 29, 2026 IN THE MATTER OF ARTICLES 2(1), 2(5), 3(1), 10, 19, 20, 22(1), 23(3) and 42 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE ALLEGED CONTRAVENTION OF CONSTITUTIONAL RIGHTS AND FREEDOMS UNDER ARTICLES 10, 25, 27, 28, 35, 40, 43, 47 AND 50 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE KENYA ROADS ACT, CAP 408 LAWS OF KENYA AND IN THE MATTER OF THE KENYA ROADS (KENYA NATIONAL HIGHWAY AUTHORITY) REGULATION, 2013 AND IN THE MATTER OF THE TRAFFIC ACT, CAP 403 LAWS OF KENYA Between John Mwaniki Kiarie 1st Petitioner Tradenets Construction Works Limited 2nd Petitioner and Kenya National Highway Authority Respondent Judgment A. Background to the petition 1.The Petitioners are the registered owners of a semi-truck, Isuzu FVZ registration No. KDN 093C and a trailer registration No. ZH2648 (herein referred to as the motor vehicle). The motor vehicle is jointly owned with Sidian Bank Limited, the financiers. On 6th February, 2024, the motor vehicle, while transporting sand, was detained by the Respondent’s officials under the provisions of the East African Community Vehicle Local Act, 2016 (hereinafter EACVLCA) and East African Community Vehicle Local Control (Enforcement Measures) Regulations, 2028 (hereinafter Regulations, 2018). The circumstances leading to the detention are in dispute between the parties in this petition. 2.On 9th May, 2024, this Court (Olel J) granted the Petitioners a mandatory injunction directed at the Respondent to release the motor vehicle, after offloading the excess weight in the presence of the parties’ representatives. This order was subject to the Petitioners depositing Kshs. 500,000.000 as security and upon giving a written irrevocable undertaking not to either remove the motor vehicle from the jurisdiction of this court or to lease, and/or dispose of it during the pendency of this petition. B. Petitioners’ Case 3.By a petition dated 15th March, 2024, the Petitioners challenge the interception, arrest and detention of their motor vehicle by the Respondent’s officials as well as the charge of Kshs. 28,947, 891.951/- as a fee for overloading under the EACVLCA and Regulations, 2018. They contend that this action flouted the Traffic Act, which was the applicable law to the prevailing circumstances, thus is illegal, constitutes an overreach by the Respondent’s supervisory authority, and therefore, violated their constitutional property rights. 4.The Petitioners aver that on 6th February, 2024, their driver, one Jahaziel Mwangi Maina, was transporting sand from Mashuru in Kajiado County and was destined for Malili within Makueni County. Upon passing Petro City Petroleum depot, at around 2.00 am, the Respondent’s officials flagged the motor vehicle on Ulu Road, Makueni. Further, it is their case that their driver stopped on the perception that it was a routine check. However, the Respondent’s officials, despite the driver's protests, seized the motor vehicle, bundled the driver into their patrol vehicle, and took charge, only for the driver to see it while being driven to the Mlolongo Weighbridge Station at 6:30 am. The Petitioners also argue that their driver noticed a disparity in the load at interception and after the officials drove it into the station. They contend that the Respondent weighed the motor vehicle; assessed it as overloaded; and charged a fee of Kshs. 28,947,891.951/-, in clear breach of procedural propriety and rules of natural justice. The Petitioners particularly take issue with the Respondent’s seizure of the motor vehicle for almost six hours, denying their driver the right to monitor the motor vehicle from the point of detention to the weighing bridge. 5.It is also asserted that even in the event the motor vehicle was overloaded, which the Petitioners dispute, there was a legitimate expectation that the purported offence would be governed by the Traffic Act and not under EACVLCA. To support this assertion, the Petitioners contend that Ulu Road in Makueni, where the motor vehicle was flagged down, is not within the Regional Trunk Road Network and consequently the EACVLCA was inapplicable. Accordingly, the Petitioners argue that the imposition of the exorbitant penalty was an unfair trade practice contrary to the EAC treaty; the penalty exceeded the value of the motor vehicle, rendering them destitute, and necessitates this Court intervention. 6.The Petitioners rely on a further affidavit sworn by Jahaziel Mwangi Maina on 5th April, 2024, wherein the driver restates the case as argued by the Petitioners and further argues that the Tracking Report attached to his affidavit and marked JMM-1 is evidence that the motor vehicle was intercepted at 2:00 am on Ulu Road, Makueni. It was also the driver's averment that the distance from the point of interception and the main road was 800 meters and therefore would not take an hour to cover as purported by the Respondent. 7.He also argues that upon being stopped and inspected, the Respondent’s officials insisted on weighing the motor vehicle at Mlolongo weighbridge despite having a mobile weighing bridge. He further contends that he was ordered to drive the motor vehicle to the Mlolongo station, which order he declined, as he was compliant with load regulations. He argued that he was manhandled from the motor vehicle and made to travel in the Respondent’s patrol car. Thereafter, he argues that he did not see the motor vehicle until it drove into the weighing bridge at 6:30 am. He annexes a second tracking report marked JMK-2 detailing the movement of the motor vehicle to Mlolongo weighbridge 8.As per the Petitioners’ driver, the motor vehicle was not overloaded at the time of interception at Ulu Road, and the loading was guided by the delineated mark, which is indicative of the legally permitted capacity. He also argues that at the time the motor vehicle was driven to the weighing bridge, it was evident that additional load had been added past the indicative mark. He also argues that he was not present at the weighing of the motor vehicle, but was only handed the EAC (Weighbridge) Certificate and Overload Fee Invoice in which the Respondent had charged Kshs. 28,947,891.951/-. He annexed the Certificate as JMM-3. Particulars of breach 9.The Petitioners contend that the unlawful detention of their motor vehicle and imposition of a fee of Kshs. 28,947,891.951/- contravenes their property right under Article 40 of the Constitution. 10.The Petitioners further argue that subjecting them to the provisions of the EACVLCA is far-fetched, illegal, uncalled for and is in contravention of Article 27 of the Constitution on non-discrimination, as all other vehicles stopped and inspected at Ulu Road, Makueni, are governed by the Traffic Act. Additionally, it is the Petitioners' case that the imposition of the fine without due process and without hearing them was in disregard of the rules of natural justice enshrined in Article 47 of the Constitution and the normative derivative in the Fair Administrative Action Act, 2015. They particularly contend that the Respondent’s actions or omission negatively affected their rights and therefore called for compliance with the requirements of procedural fairness under Section 4(3) of the Fair Administrative Action Act. 11.The Petitioners also plead violation of their economic and social rights under Article 43. They contend that the imposition of the illegal and punitive fee arbitrarily diminished their source of livelihood. They also urge that manhandling their driver out of the motor vehicle was a mockery of his rights under Articles 28 and 29 of the Constitution. Reliefs Sought 12.Based on the foregoing, the Petitioners seek the following reliefs;a.A declaration that the Petitioners’ fundamental rights and freedoms as enshrined under Articles 25, 27, 40, 43 and 50 of the Constitution have been contravened and infringed upon by the Respondent;b.A declaration that the seizure and detention of the Petitioners’ semi-truck (including the cargo trailer) amounts to a violation of the Petitioners’ constitutional right to property;c.An order of mandamus to compel the Respondent to unconditionally release the Petitioners’ semi-truck (including the cargo trailer) registration number KDN093C, ISUZU FVZ Chassis No. JALFVZ34TK7001178;d.An order for compensation for loss of income during the entirety of the detention period; ande.Costs of the petition C. The Respondents’ Case 13.The Respondents oppose the petition through a replying affidavit and supplementary affidavit sworn by the Weighbridge Manager, Athi River Station on 3rd April, 2024 and 10th June, 2025, respectively. The Respondent also filed a preliminary objection challenging the court’s jurisdiction to hear and determine the petition. The preliminary objection was dismissed for lack of merit on 9th May, 2024. 14.In its response, the Respondent contends that pursuant to Section 4(1) of the Kenya Roads Act, No. 2 of 2007, it is responsible for the management, development, rehabilitation of all roads classified as national roads, road reserves, and the implementation of road policies in relation to national roads, among other duties. Further, pursuant to Section 22 of the Kenya Roads Act and in particular Section 22(1)(c) as read with Section 55(c) of the Traffic Act and the regulations thereof, it is mandated to measure and assess the weights, dimensions and capacities of vehicles using any road and to ensure compliance with the said rules and regulations on axle load control limits as provided for in law. The Respondent also posits that in undertaking its duties, it is guided by the provisions of the EACVLCA, as read together with Regulations, 2018. 15.Guided by this framework, the Respondent contends that the motor vehicle was intercepted at Malili town, which is along Mombasa Road in the Regional Trunk Road Network, and was weighed at the Athi River Weighbridge station situated at Athi River along Mombasa Road. The Respondent also contends that the motor vehicle was neither flagged down on Ulu Road in Makueni nor weighed at the Mlolongo Weighbridge as argued by the Petitioners. Further, the 1st Petitioner's evidence is discredited as hearsay on the grounds that he was not present when the motor vehicle was weighed. 16.Additionally, it is the Respondent’s case that after weighing the motor vehicle, a weighbridge ticket, certificate, and overload fees invoice were issued on the same date. To support this assertion, the Respondent refers to the time and place stamps on the Weighbridge Ticket, Certificate, and overload Fees Invoice marked WSWT-1, WSWT-2, and WSWT-3. It is urged that this exercise was conducted in accordance with the procedure under EACVLCA, and the Petitioners' allegations and version of events are inaccurate and false. 17.Moreover, the Respondent argues that the Petitioners’ tracking report annexed as JMK-5 is an incorrect and incomplete log/records of the motor vehicles’ location on 6th February, 2024. In that, it fails to indicate the total mileage, travel time, average speed and maximum speed covered in the period in question. To further buttress, it is contended that the Petitioners’ driver alleged to have seen the motor vehicle drive to the weighbridge station at 6:30 am, yet the last timestamp in the Petitioners’ tracking report is 6:06 am. The Respondent also argues that, in any event, in the tracking report relied on by the Petitioners, at entries/log 2.02 am indicates that the suit lorry was travelling along Ulu Road until 2.43 am. Then the said motor vehicle travelled along Mombasa Road from 2.59 am to 6.06 am, demonstrating that it was in constant motion from interception to weighing. 18.The Respondent also avers that it tracked the motor vehicle using its patrol pick-up from the point of interception until weighing at the Athi River station and relies on its tracking report marked WSWT-4 dated 27th March, 2024. It asserts that the logs in its report are more accurate, and the travel and destination log clearly show that the motor vehicle was stopped along Mombasa Road at 1:55 am and driven to the Athi River weighbridge station at 6:18 am without any stops or diversion. 19.On the procedure, the Respondent denies that after interception its officials forcefully took over the control of the motor vehicle. Instead, the Respondent argues that, as admitted by the driver in his further affidavit, the driver declined the request to drive to the weighbridge. Therefore, the non-compliance with the instructions necessitated the takeover by the Respondent’s officials, in exercise of the powers donated by Section 15(1)(b), (j) and (m) of the EACVLCA, which allows it to inspect any record relating to a load carried, to cause the vehicle to be driven to a designated location, and to cause to be performed tests and examinations as provided by the said Act, respectively. 20.Similarly, it is the Respondent’s case that upon weighing, the said motor vehicle was overloaded by 27,120kg, over its legally permissible limit of 54,000kg. It is argued that contrary to the Petitioners’ contention, there is no legal requirement under the regulatory framework requiring a party to witness the weighing of a suspected overloaded vehicle. It also argues that neither the Petitioners, nor their driver, disputed the weighing certificate upon issuance at the weighbridge station. 21.Subsequently, the Respondent insists that a weighbridge ticket and certificate were procedurally generated and calculated for settlement, as is a statutory requirement under Section 17 of EACVLCA as read together with Part III of the EACVLC Regulations, 2018. Further, the total fee for overloading was assessed and charged at USD 180,353.1, which, upon conversion at the dollar rate of USD to Ksh.160.5068 (then prevailing), translated to Kshs. 28,947,898.951/-. 22.It is also contended that after the Petitioners failed to settle the invoiced fees, the motor vehicle was lawfully detained at Athi River weighbridge station holding yard pursuant to provisions of Section 15(1)(a) as read with Section 17(6) to 17(11) of EACVLCA and Regulation 13 of Part III of the Regulations, 2018. The Respondent claims that in addition to the fee, daily detention charges of USD 50 accrue to the Petitioners, until settlement in full and/or release of the motor vehicle. It contends that as at 21st March, 2024, the accrued detention fee was Kshs. 279,440.00/-. 23.On the doctrine of legitimate expectation, the Respondent contends that the doctrine was inapplicable in the circumstances of this petition, as the law applicable for purposes of weighing the motor vehicle and assessing/charging the overload fee was EACVLCA and not the Traffic Act. It buttresses the tracking system adduced as WSWT4 confirmed that the motor vehicle was intercepted along Mombasa Road, which is part of the Northern corridor in the Regional Trunk road Network. 24.Finally, the Respondent also raises an admissibility challenge to the photograph evidence produced by the Petitioners as JMK-8 on the ground that no certificate of electronic evidence was produced as is required under Section106B of the Evidence Act. For these reasons it is argued that the petition lacks merit. D. Viva Voce Evidence 25.On 2nd December, 2024, this Court directed that the petition would be heard by way of viva voce evidence. Subsequently, the matter was heard on 29th October, 2025. The Petitioners called two witnesses, Jahaziel Mwangi Maina (hereinafter PW1) and John Mwaniki Kiarie (hereinafter PW2), while the Respondent called one witness, Willie Shem Waithanja Thuku (hereinafter RW1). 26.PW1 in his sworn evidence stated that he was the driver of a motor vehicle registration No. KDM 093C ISUZU FVZ and the 1st Petitioner was his employer. He stated that his work was to ferry sand from a river in Kajiado via an off-road to Milili in Makueni. He testified that on 6th February, 2024, he was driving the motor vehicle from Mashru Kajiado transporting sand to Milili in Makueni County. While at Petro City along Ulu Road (a marram road), he was intercepted by a pickup double-cabin, and the occupants identified themselves as the Respondent’s staff. 27.He averred that the said staff inquired what he was transporting and indicated that they wanted to weigh the truck, and when he allowed them to weigh the truck using their mobile weighbridge, they changed their minds and asked him to drive to Mlolongo weighbridge station. He added that an altercation ensued when he insisted that he had not exceeded the weight, as the sand load had not exceeded the marked calibration. It was his statement that thereafter the said Respondent’s officials forcefully removed him from the motor vehicle, put him in their pickup and had one of them drive the lorry. 28.He stated that thereafter, he did not know the whereabouts of the lorry until at the Mlolongo weighbridge station, where the Respondent’s staff weighed the lorry and parked it at the Respondent’s yard. He testified that he was given papers to sign, and that was when he realised the weight presented on the weighbridge certificate was not the weight he had loaded onto the lorry. He also stated that he informed his employer, who went to the weighbridge station the following day. He relied on his further affidavit sworn on 5th April, 2024, and the documents annexed thereto in support of his evidence. 29.In cross-examination, he confirmed that there was an altercation with the Respondent’s staff who wanted the lorry to be driven to Mlolongo weighbridge because he had insisted the lorry be weighed on the spot, using the mobile weighbridge. He also confirmed that he could ascertain that the lorry was not overloaded, as the load was not past the calibration marking the recommended load, and that he had never been arrested for overloading before. He also stated that the Respondent’s staff did not explain to him that they were detaining the lorry because it was on a regional road; he was not aware whether the Respondent’s staff could lawfully confiscate and drive the motor vehicle. He insisted that he was bundled up into the Respondent’s pick-up, and the Respondent’s pick-up did not follow the lorry to the weighbridge; hence, he did not know the whereabouts of the lorry after interception, until he saw it at the weighbridge station. 30.He also confirmed that at the weighbridge station, he was given the weighbridge certificate and the invoices, and there was an excess axle load of 27,120 kgs. He stated that he could not ascertain the origin of the excess weight. He, however, explained that, from the Petitioners’ tracking report marked JMM-1, the motor vehicle was intercepted at around 2:00 am and, thereafter, was driven by the Respondent’s staff, who made an unexplained stop for around 30 minutes on Mombasa Road. He also argued that there are many loading points on Mombasa Road, and the loading time depended on the mode of loading technique, either by an escalator (which would take 5 minutes), or human labour, which would take longer. He stated that at the weighbridge he had no opportunity to complain that the load on the motor vehicle had been added, as he was not present during the weighing procedure and was only furnished with the weighbridge certificate, invoice and other documents. 31.On re-examination, he counter-referenced the two tracking reports stating that it is evident that at the point of interception by the staff of the Respondents was Ulu Road, a small marram road in Makueni East and not Mombasa Road. He also reiterated that the Petitioners’ motor vehicle is calibrated with the correct load mark and at the point of interception, the load was at the calibration mark; he was sure that the excess load was added somewhere from the point of interception and the Mlolongo weighbridge station; he was not present when the load was added and therefore could not tell the time it took to add the excess weight; and he did not witness the weighing of the motor vehicle by the Respondent’s officials. 32.PW2 gave his sworn statement restating the averments in the supporting affidavit sworn on 15th April, 2024, and the documents annexed therein. He reiterated that he is the director of the 2nd Petitioner. Further, the motor vehicle is co-owned by the 2nd Petitioner and Sidian Bank, who had financed its purchase. He testified that on 2nd February, 2024, he was woken by PW1’s call at around 6;30 am, informing him that while ferrying sand from Kajiado to Makueni using the motor vehicle, he (PW1) had been arrested along Ulu Road and had been taken to a weighbridge station along Mombasa Road. He added that the driver informed him the Respondent’s officials had intercepted him, pushed him from the motor vehicle, bundled him into the Respondent’s pick-up and driven the motor vehicle to the Weighbridge station at Mlolongo, where the Lorry was weighed and invoiced for Kshs. 28 million, a fee for overloading. 33.It was his testimony that upon arriving at the weighbridge station, he made inquiries from the personnel manning the office, but no information was forthcoming. He stated that from where the lorry was parked, he could tell it was overloaded. He stated that PW1 informed him that at the point of interception the motor vehicle was carrying the required load capacity; however, after the motor vehicle was driven to the weighbridge station by the Respondent’s official, it was visibly overloaded. He detailed that the driver could not explain the source of the excess weight. He testified that thereafter he informed his financiers, the Sidian Bank, who referred him to their legal counsel and paid the security of Kshs. 500,000.00/- ordered by this Court as a condition to the release of the motor vehicle. He requested the court to grant the Petitioners the relief sought in the petition. 34.In cross-examination, PW2 testified that he was not in the motor vehicle when it was intercepted and that he did not know why the driver was removed from the same. He referred to annexure JMK-3, attested that Sidian Bank had financed the purchase of the motor vehicle, with an outstanding balance of about Kshs. 5 million. He also added that the motor vehicle had been detained by the Respondent for 3 months, but released subject to the orders of this Court. 35.It was further his testimony that, as per the weighbridge certificate and invoice, the motor vehicle had an excess of 27 tonnes, which was almost double the recommended weight. He noted that there are many loading sites along Mombasa Road, and his truck was not overloaded when arrested on Ulu Road, and the excess weight was illegally loaded by other people after the interception. He further testified that the detention of the motor vehicle infringed on his right to property and that he was denied a fair hearing by the Respondents 36.On re-examination, he restated his testimony and added that he had suffered loss due to the Respondent’s action and was seeking compensation for the loss suffered. 37.RW1 testified for the Respondent and relied on his replying affidavit sworn on 3rd April, 2025, and supplementary affidavit sworn on 10th June, 2025. To begin with, he sought to correct paragraph 13(a) of the replying affidavit to amend that the motor vehicle was flagged down at 3:00 am and not 2:00 am as earlier indicated. He then stated that he was a weighbridge manager and an employee of Ebenezer Commercial Workers. He testified that the motor vehicle was stopped at 3:00 am on Mombasa Road after the intersection with Ulu Road. 38.He itemised that when the driver was flagged down, he refused to stop, and a chase ensued for about half a kilometre, after which the Respondent’s officials managed to block the lorry. He detailed that thereafter, the officials contacted his immediate boss, who instructed him to have the vehicle weighed, as it was on the Regional Trunk Road Network and the EACVLCA was applicable. He stated that the driver was asked but refused to drive the motor vehicle to the weighbridge station, and as a result one of the officials was instructed by Sergeant Kariuki to drive it to the station. 39.He further testified that the driver drove in a separate escort vehicle, which trailed the motor vehicle, sandwiched between the escort car and another car belonging to the Respondent, to the weighbridge station at Athi River. He stated that the motor vehicle was not stopped at any point after interception. On arrival to the station, RW1 stated that the motor vehicle was weighed in the presence of the Petitioner’s driver; the driver furnished his particulars as captured on the Certificate, including his name; and the driver was inside the weighing room during the exercise. 40.It was his further statement that, comparing the two competing tracking reports, both vehicles were at a standstill for 30 minutes and it was the time the motor vehicle was flagged down. He disputes that the Motor vehicle was arrested at 1.55 am, as at that time, he claimed the Respondent’s arresting pickup was at Kyumi. He also stated that after the arrest at around 3:27 am to 6:18 am, the escort car and the motor vehicle were in motion and it was impossible to add load to a moving motor vehicle. He testified that although he had left the station when the Petitioner arrived, the Petitioner was allowed to view his truck within the weighbridge premises. He also stated that the Petitioner was known to him because his motor vehicle had been arrested before for overloading, and in other instances, he had paid the fines imposed. 41.He added that the EACVLCA applied to the circumstances of the interception as the motor vehicle was on Mombasa Road which is one of the Regional Trunk Roads. 42.On cross-examination, he agreed that he was not present when the motor vehicle was intercepted; he did not witness the interception but arrived shortly after; and therefore, he could not tell the exact time the interception had occurred. He also agreed that from the affidavits he sought to rely on, he could not point out where it was averred that he was on site at any time, during or after interception. He reiterated that the averments at paragraph 13(a) of his replying affidavit were contradictory to his testimony, insisting that he was seeking to amend it or remove it from the affidavit due to its incompleteness. He was also referred to paragraph 9 of the supplementary affidavit, where he had restated the averments in paragraph 13 and insisted that he wanted to amend the earlier averments that the motor vehicle was intercepted at 2:00 am. 43.He also stated that the two reports adduced by the parties are opposing, insisting that the arresting pick-up was at a standstill at 1:55 am and the interception was at around 3:00 am on Mombasa Road as indicated in the Respondent’s tracking reports. He also stated that the chase lasted for about 2 seconds as evidenced by the tracking report log. He also confirmed that the tracking report relied on by the Respondent was not on the motor vehicle but on the Respondent’s escorting vehicle. He also stated that he had no evidence in support of his statement that the Petitioners’ lorry had been arrested previously for overloading. Further, he testified that there is no weighbridge called Mlolongo weighbridge station, but there is a station called Athi River weighbridge in Mlolongo area. He also stated that under the law, once it was confirmed that a motor vehicle was overloaded, a fee was imposed and if dissatisfied, a party had recourse to the Respondent, and thereafter, no appellate mechanism is provided. 44.On re-examination, he restated his evidence in chief, insisting that the Respondent’s arresting vehicle was not on Ulu Road at any time on the night of arrest and the interception was on Mombasa Road after exiting Ulu Road at 3:00 am. He added that he arrived at the scene of arrest at around 3:30 am and at this time the Petitioner's driver was in the escort vehicle. E. Submissions by the Parties 45.The Petitioners filed their submissions dated 25th February, 2026, wherein they submit that the EACVLCA strictly applies to enforcement along the designated Regional Trunk Road Network as set out in the First Schedule. They reiterate that the interception occurred on Ulu Road and not Mombasa Road. Further, the Respondent bears the obligation to demonstrate that the interception occurred on a road designated under the First Schedule of the EACVLCA, and in the absence of such proof, the purported enforcement action lacks statutory foundation and legitimacy. 46.They also submit that the Respondent’s affidavit evidence of Willie Shem Waithaka Thuku is speculative and unsupported by firsthand knowledge. To support this averment, they argue that this evidence is indirect, and inadmissible as hearsay. More so, in view of their driver's direct contradictory evidence. They add that the Respondents have not demonstrated that their evidence falls within the exceptions outlined under Sections 33 and 35 of the Evidence Act. 47.They also discredit the Respondents' account of the interception as lacking cogency and credibility. The Petitioners also oppose RW1’s averments amending the averments of the replying affidavit. They submit that no satisfactory explanation has been provided for the contradiction between the affidavits and viva voce testimony. They contend that the cumulative effect of the inconsistencies in the Respondent’s narrative, when measured against the contemporaneous tracking data, renders RW1’s narration of the events of the interception less credible. 48.On the violation of their right to fair administrative action under Article 47, the Petitioners submit that the impoundment and detention of the motor vehicle was unlawful, unreasonable, and procedurally unfair. To this end, they contend that the Respondent officers' actions and omissions fell outside the lawful confines. They expound that under Article 10 of the Constitution, the Respondent and its officers have a duty to uphold national values and principles of governance, notably integrity, transparency, and accountability. They were required to exercise their administrative action giving clear reasons, in a transparent methodology, and a demonstrable factual foundation. 49.They further challenge the arbitrary imposition of a punitive and excessive penalty, coupled with coercive enforcement measures, unexplained custodial interference with the vehicle and its cargo, and the total denial of procedural fairness. They argue that the Respondent was obligated to explain what constituted the alleged overload, how the measurements were taken, and how the figure of Kshs. 28,947,891.951/= was computed. It is their case that the failure to provide these essential particulars is a direct affront to constitutional standards. Moreover, it is the Petitioners’ case that the process under Section 17(4) of the EACVLCA on the ground that it vests powers in the Respondent to impose financial penalties, detain vehicles, and enforce payment without providing a clear internal appellate or review mechanism. 50.On violation of their right to property, the Petitioners submit that the Respondent’s officers' consequent unlawful impoundment of their motor vehicle, imposition of an exorbitant fine and detention of the said motor vehicle for a period of 3 months was in contravention of their rights to property under Article 40 of the Constitution. They further contend that the Respondent’s physical interference with the motor vehicle while in its custody by removing wheels rendered it immobile and exposed it to deterioration and further mechanical damage. 51.The Respondent filed its submissions dated 23rd March, 2026, substantially reiterating the averments in its replying affidavit, supplementary affidavit and RW1 testimony. In addition, the Respondent submits that the Petitioners have abandoned their claim for breaches of Articles 25, 27, 43 and 50 of the Constitution pleaded in their petition and have limited their arguments to violations of Article 40 and 47 of the Constitution. In view of the foregoing, the Respondent urges that this Court ought only to interrogate and decide on the alleged violation of Articles 40 and 47 of the Constitution. 52.On the competence of the petition, the Respondent submits that the petition is incompetent, fatally and incurably defective on account of the Petitioner's failure to file an affidavit in support of the petition. To support this submission. It submits that the Petitioners did not support their claims for violation either by way of affidavits or otherwise, and only rely on the affidavits filed in support of the application dated 15th March, 2024. To this end, the Respondent contends that the omission is contrary to the provisions in Rule 11 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (hereinafter the Mutunga Rules). Consequently, it submits that the petition should be struck out on grounds of incurable defects. 53.Without prejudice to the foregoing, the Respondent submits on the substantive issues raised. On the applicability of the EACVLCA, it maintains that it properly and lawfully applied the provisions of the EACVLCA and Regulations, 2018 because the motor vehicle was flagged down on Mombasa Road, a Regional Trunk Road. The Respondent further submits that the Petitioners only argued the motor vehicle was intercepted on Ulu Road without adducing any evidence in support. Further, they reiterate that the 1st Petitioner and the Petitioners’ driver’s affidavits were filed in support of the application and not in support of the petition, hence are inadmissible. 54.Further, the Respondent submits that the tracking report adduced by the Petitioner is an incomplete record, is misleading and inaccurate, for reasons that; it indicates time stamps up to 6:06 am despite alleging that their driver did not have control of the motor vehicle and only saw it drive to the weighbridge at 6:30 am; the Weighbridge Ticket confirms that the motor vehicle was weighed at 6: 20 am; and its barely legible. In any event, the Respondent submits that the report does not demonstrate that the motor vehicle stopped at any point after the interception. The Respondent further submits that its tracking is a more accurate account of the travel and destination logs from interception until arrival at the Athi River Weighbridge Station. 55.As regards the weight of the load at the time of interception, the Respondent contends that the Petitioners’ driver could not ascertain the exact weight based on his independent and subjective visual observation. Further, it is urged that it is only upon the weighing of the motor vehicle that the Respondent ascertained the correct and accurate weight of the load. It also submits that neither the Petitioners nor the driver has alleged or demonstrated that the weighing machine and system was faulty, damaged, dysfunctional, or otherwise affected by any technical, mechanical, manual errors, or failures in operation in so far as to give a wrong assessment of the weight. 56.It also counters that upon weighing the motor vehicle, it was overloaded and that there was no requirement or obligation on the Respondent to require a party to witness the weighing of a motor vehicle under the EACVLCA and Regulations. It is also the Respondent’s submissions that the detention of the motor vehicle was in accordance with sections 15(1)(h) read with Sections 17(6) to 17(11) and Regulation 13 in Part III of the Regulations, which empowered the Respondent's Officers to detain the Motor Vehicle and 29. the Trailer until the overloading fees were paid in full. 57.In response to the Petitioners’ assertions that the evidence of RW1 is inconsistent and hearsay, the Respondent submits that this challenge has been brought for the first time in submissions and therefore is in bad faith, and therefore not an issue for determination in this petition. Further, it argues that the source of the information relied on by RW1 has been disclosed and annexed to the replying affidavit, therefore, admissible under the Evidence Act. 58.On the Petitioners’ challenge to Section 17(4) of the EACLVCA, the Respondent urges that this challenge was not pleaded in the petition and was only advanced for the first time at submissions stage and allowing the determination of this issue would deny it the right to a fair hearing and an opportunity to respond. It further argues that the issue was only alluded to in the Ruling of this Court of 9th May, 2024. 59.On the specific violations of the rights to property under Article 40 and to fair administrative action under Article 47, the Respondent submits that the Petitioners have failed to satisfy the required threshold to be entitled to any relief sought. Further, it argues that it is not sufficient for the Petitioners to merely plead violations in the absence of evidence of how those rights were violated. The Respondent reiterates that failure to file affidavits in support of the Petition, together with supporting documents, is a fatal and incurable defect to the extent that no material has been placed before this Honourable Court to demonstrate the alleged constitutional violations. Further, it is submitted that since the Petitioners have failed to discharge their burden of proof under Section 107 of the Evidence Act, the burden does not shift to the Respondent to demonstrate that it did not violate the Petitioners' rights under the Constitution as alleged. 60.In any event, the Respondent submitted that, the rights under Articles 40 and 47 can be limited under Article 24, and therefore the actions of the Respondent’s officers were in line with the limitations under Sections 15(1)(b), (h), (j), (m) and 17(1) (6) of the EACVLCA, and Regulation 13, which essentially allow the detention of the motor vehicle until the overloading fees are paid in full. It is argued that the circumstances of the Petitioners' case justified the limitation of their said rights, which was necessary for the enforcement of the EACVLCA. In conclusion, it is submitted that the Petitioners had failed to demonstrate their entitlement to the reliefs prayed for in the petition. F. Analysis for Determination 61.From the petition, the responses thereto, viva voce evidence, as well as the written submissions, the following issues arise for determination:a.Whether the petition is incompetent;b.Whether the Petitioners' constitutional rights were violated; andc.What are the appropriate orders to issue, including on costs? Whether the petition is incompetent 62.The Respondent challenges the competency of the petition, on grounds that it offends Rule 11 of the Mutunga Rules. According to the Respondent, the Petitioners failed to file an affidavit in support of the petition or annex evidence to the petition, but rather relied on the supporting affidavit and further affidavit filed in support of the Notice of Motion dated 15th March, 2024. For this reason, the Respondent contests that the petition is incurably defective. 63.Rule 11 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 provides,11.(1)The petition filed under these rules may be supported by an affidavit.(2)If a party wishes to rely on any document, the document shall be annexed to the supporting affidavit or the petition where there is no supporting affidavit. 64.Rule 11 (1) is not couched in mandatory terms and therefore provides that an affidavit in support of a constitutional petition is optional. However, Rule 11(2) requires that a party who wishes to rely on a document must annex the same to the supporting Affidavit or the petition where there is no supporting Affidavit. Unlike Rule 11(1) of the Mutunga Rules, Rule 11(2) is worded in mandatory terms. As is evident from the record, the Petitioners did not file a separate supporting affidavit. They relied on the supporting and further affidavits together with the annexures filed in the application dated 15th May, 2024. Does this render the petition before the court incurably defective? 65.It is clear from the record that when this matter was mentioned for pre-trial directions, the advocates on record for the Petitioners indicated that he had filed the documents in support of the Petitioners’ case, and sought leave to file a further affidavit in response to the Respondent’s replying affidavit. Correspondingly, the advocate on record for the Respondent indicated that he had filed a comprehensive replying affidavit and requested that hearing directions be given. From the pre-trial directions thereafter given, it was assumed that the parties would rely on the affidavits and documents filed in response to the application dated 15th March, 2024, to argue the petition. I note that the Respondent’s replying affidavit was also filed in the application. 66.Moreover, when the Petitioners’ and Respondent’s witnesses gave their testimony before this Court, PW1 relied on his further affidavit sworn on 5th April, 2024, and the documents attached therein in support of his evidence; PW2 relied on the averments and annexures in the supporting affidavit sworn on 15th April, 2024; and RW1 relied on his replying affidavit sworn on 3rd April, 2025, and supplementary affidavit sworn on 10th June, 2025. All these affidavits were filed either in support or opposition of the application dated 15th March, 2024, save for the supplementary affidavit. 67.Therefore, even if the Petitioners did not file a supporting affidavit and documents contemporaneously with the petition, they have consistently communicated that they would rely on the affidavits filed in the application and the documents annexed therein. The averments in the said affidavits were also restated in the viva voce evidence. Additionally, all the parties have relied on the affidavits filed in the application, and the Respondent did not raise any objections during pre-trial mention or during the viva voce evidence. Therefore, in the interest of justice, both the supporting affidavit, further affidavit and the Respondent replying affidavit, although filed in the application, are admitted as properly on record. Consequently, I find that the petition is not incompetent. Whether the Petitioners' constitutional rights were violated 68.On this issue, I shall begin by restating the High Court’s jurisdiction to hear and determine petitions for breach of constitutional rights. The starting point is Article 23(1) of the Constitution, which explicitly states that:The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. 69.Similarly, Article 165(3)(b) of the Constitution, which clothes the High Court with jurisdiction to determine questions of constitutional breaches and infringement, states:Subject to clause (5), the High Court shall have—jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened. 70.In exercise of the jurisdiction conferred above, and in determination of this issue, two sub-issues arise, whether the Petitioners’ right to property under Article 40 of the Constitution was infringed; and whether their rights to fair administrative action under Article 47 of the Constitution were breached. In delineating these two sub-issues, I am well aware and agree with the Respondent’s submissions that even though the Petitioners also pleaded the violations of Articles 25, 27, 28, 29, 43 and 50 of the Constitution in their petition, they have subsequently failed to substantiate or advance any evidence in support of their alleged breaches. Whether the Petitioner’s Right to property was infringed 71.The Petitioners' main contention is that the unlawful detention of their motor vehicle and unlawful imposition of the fee of Kshs. 28,947,891.951/- under the EACVLCA and Regulations, 2018 contravened their property right under Article 40 of the Constitution. To buttress, the Petitioners argue that the vehicle was intercepted along Ulu Road, Makueni, a murram road not designated under the First Schedule to the EACVLCA, therefore outside the statutory scope of the Act. They also contend that the motor vehicle was vandalised while in the unlawful custody of the Respondent. 72.On the other hand, the Respondent contends that, first, the motor vehicle was intercepted on Mombasa Road, which is along the Regional Trunk Road under the First Schedule to the EACVLCA. It adds that the provisions of the EACVLCA and Regulations 2018 were therefore squarely applicable to the circumstances of this case. It also argues that the detention and imposition of the fees are lawful and do not breach the Petitioners’ right to property. Second, that the Petitioners have failed to discharge the burden of proof under Sections 107, 108 and 109 of the Evidence Act, in that the Petitioners and their driver failed to either file affidavits in support of the Petition, or supporting documents in line with Rule 11 of the Mutunga Rules. Third, that the Petitioners’ right to property was lawfully limited under Article 24 of the Constitution, in accordance with the provisions of the EACVLCA and the Regulations of 2018. 73.To determine whether the Petitioners’ right to property was infringed, the starting point is Article 40 of the Constitution, which guarantees the right to property in the following terms;(1)Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property—(a)of any description; and(b)in any part of Kenya.(2)Parliament shall not enact a law that permits the State or any person—(a)to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or(b)to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27(4). 74.Moreover, the Courts have interpreted the place of property rights under the Constitution. For instance, in Isaac Gathungu Wanjohi & another vs AG & 6 others [2012] KEHC 5200 (KLR), the Court held;“Article 40(3)of the Constitution protects a person from deprivation of property by the state unless the deprivation is for a public purpose or in public interest and is carried out in accordance with the Constitution or an Act of Parliament and prompt payment in full of just compensation.” 75.In Dina Management Ltd vs County Government of Mombasa & 5 others [2023] KESC 30 (KLR), the Supreme Court restated this right as follows: Article 40 of the Constitution entitles every person to the right to property, subject to the limitations set out therein. Therefore, the protection against arbitrary infringement of the right to property is a constitutional imperative. 76.This right can be limited under Article 24 of the Constitution, if the following conditions are met;(1)A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—(a)the nature of the right or fundamental freedom;(b)the importance of the purpose of the limitation;(c)the nature and extent of the limitation;(d)the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and(e)the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.(2)Despite clause (1), a provision in legislation limiting a right or fundamental freedom—(a)in the case of a provision enacted or amended on or after the effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation;(b)shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and(c)shall not limit the right or fundamental freedom so far as to derogate from its core or essential content. 77.Having set the constitutional provisions applicable to this issue, the determination of whether the Petitioners' right to property was infringed entirely turns on whether the Respondent lawfully invoked the provisions of the EACVLCA and Regulations, 2018. This is so, having earlier determined that the affidavits relied on by the Petitioners in support of the petition are properly on record. To this end, Section 3 of the EACVLCA provides that;This Act shall apply to the implementation of vehicle load control along the Regional Trunk Road Network set out in the First Schedule. 78.The First Schedule, on the other hand, sets out a long list of the Regional Trunk Road Network. Under this Schedule, the Northern Corridor and its links comprise Mombasa-Voi-Eldoret-Bugiri-Kampala-Musaka-Kigali-Karongi-Kayanza-Bujumbura. Specifically, in Kenya, the following cities/Towns are served by the Northern Corridor road links: Mombasa-Voi-Mtito Andei-Kibwezi-Emali-Sultan Hamud-AthiRiver-Nairobi-Upland-Kimende-Naivasha-Nakuru-Timboroa-Eldoret-Webuye-Bungoma-Malaba. 79.Therefore, for the EACVLCA and its Regulations to be applicable in this petition, the motor vehicle must have been intercepted somewhere on the Northern Corridor Network or its links set out above. The Petitioners argue that the interception was on Ulu Road and therefore the said Act has no application. PW1 testified that on the night of 6th February, 2024, he was driving the motor vehicle loaded with sand from Mashuru to Malili, when at approximately 2:00 a.m., shortly after passing the Petrocity Depot, he was flagged down by Respondent’s officers along Ulu Road, Makueni. 80.In contrast, the Respondent urges that the motor vehicle was intercepted on Mombasa Road hence, the said Act is applicable. RW1 admitted that he was not present when the motor vehicle was intercepted but was called to the location of interception. Both parties’ witnesses have relied on competing tracking reports to support their respective cases. The Petitioners relied on the tracking report marked as JMM-1 and JMK-5 annexed to PW1’s further affidavit sworn on 5th April, 2024, while RW1 relied on the tracking report marked as WSWT-4 annexed to the Respondent’s replying affidavit sworn on 3rd April, 2024. 81.Before evaluating the rival testimony by the parties' witnesses and the competing documentary evidence, I shall ascertain their probative value. On this issue, the Petitioners have asserted that the Respondent's RW1 testimony is indirect and therefore generally inadmissible as hearsay. They also urge that his testimony is inconsistent and of less probative value. The law on the value of indirect evidence is settled in Parkar & another vs Qureshi & 2 others [2023] KECA 908 (KLR) that;“Evidence of a statement made to a witness by a person who is not called as a witness is hearsay and inadmissible if offered to prove the truth of the statement. It is, however, admissible if the purpose is merely to show that the statement was made.” 82.From the record, it is uncontested that RW1 was not present at the scene at the time of interception. RW1 also admitted this fact in cross-examination. RW1’s account of events, including where the motor vehicle was intercepted, is therefore based entirely on information relayed to him by the Respondent’s other officers. Consequently, the probative value of RW1’s hearsay evidence is necessarily diminished where direct evidence is available. 83.That aside, RW1’s evidence is substantially inconsistent. In the replying affidavit, he averred that the motor vehicle was intercepted at 2:00 am on Mombasa Road. However, in his oral evidence, he testified that the motor vehicle was intercepted at 3:00 am. Even though he stated he had not recanted his evidence but was merely making a correction to the affidavit evidence, this explanation is not acceptable. The Respondent cannot amend or change its evidence to defeat another party’s evidence. Parties are bound by their pleadings, and so is the Respondent. The cumulative effect therefore is that due to this inconsistency, RW1’s evidence is of less probative value compared to that of PW1 with regards to the place of interception of the motor vehicle. 84.Especially when PW1 was consistent in his oral and affidavit evidence that he was flagged down at Ulu Road by the Respondent’s officers at approximately 2:00 am. This testimony is substantiated by the tracking report marked “JMK-1 and JMK-5 also annexed to PW1’s further affidavit. According to the Petitioners’ report, the motor vehicle was on Ulu Road from 1:56:02 to 2: 46:42 am. This position is also supported by RW1’s averments in the replying affidavit before the same was recanted in oral evidence. This evidence conclusively places the subject vehicle along Ulu Road at the material time. 85.I find that the motor vehicle was intercepted at Ulu Road and not Mombasa Road as purported by the Respondent. Similarly, since Ulu Road is not a road on the Regional Trunk Road Network or links under the First Schedule of the EACVLCA, the EACVLCA and its Regulations are not applicable. Therefore, by subjecting the Petitioners’ motor vehicle to the application of the EACVLCA and misrepresenting that the motor vehicle was intercepted on Mombasa Road, with the intention to wrongfully apply the EACVLCA and its Regulations, the Respondent’s officials and, by agency, the Respondents breached the Petitioners' right to property. Whether their rights to fair administrative action were breached 86.It is the Petitioners’ case that the Respondent’s officials detained and charged an exorbitant fee without disclosure or explanation of the basis of the alleged overload; the driver was forcibly removed from the vehicle without explanation; the Respondent’s officers seized control of the motor vehicle, coerced the driver into their pick-up; and the Respondent’s officials had exclusive custody and control of both the vehicle and the load of sand for about 4 hours. 87.They also urged that there was a disparity between the load originally on the motor vehicle and the load at the time of weighing. They further contended that the Respondent’s actions suggest a predetermined and mechanical process, in clear contravention of procedural safeguards. For these reasons they contended that the administrative action was procedurally unfair, and therefore unconstitutional. 88.In response, the Respondent restates that the Petitioner has not discharged the burden of proof. Further, it urges that the actions by the Respondents' officials were in accordance with the law as they are empowered by Section 15(1)(b), (j) and (m) of the EACVLCA to inspect any record relating to a load carried, to cause the vehicle to be driven to a designated location, and to cause to be performed tests and examinations as provided by the said Act. It also contends that under Sections 15, 17(6) and 17(11) of the Act, it has the power to detain the motor vehicle until the overloading fees are paid in full. Similarly, it is the Respondent’s case that the right to fair administrative action is a limited right under Article 24 and the circumstances of this petition justified the limitation in accordance with the EACVLCA and its Regulations. 89.The right to fair administrative action is provided under Article 47 of the Constitution, which provides;(1)Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.(2)If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.(3)Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—(a)provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and(b)promote efficient administration. 90.The Fair Administrative Actions Act at Section 4 requires that:(1)Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.(2)Every person has the right to be given written reasons for any administrative action that is taken against him.(3)Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision–(a)prior and adequate notice of the nature and reasons for the proposed administrative action;(b)an opportunity to be heard and to make representations in that regard;(c)notice of a right to a review or internal appeal against an administrative decision, where applicable;(d)a statement of reasons pursuant to section 6;(e)notice of the right to legal representation, where applicable;(f)notice of the right to cross-examine or where applicable; or(g)information, materials and evidence to be relied upon in making the decision or taking the administrative action.(4)The administrator shall accord the person against whom administrative action is taken an opportunity to–(a)attend proceedings, in person or in the company of an expert of his choice;(b)be heard;(c)cross-examine persons who give adverse evidence against him; and (d)request for an adjournment of the proceedings, where necessary to ensure a fair hearing. 91.From the record and evidence tabled before the Court, it has been proved that the Respondent’s officials took control of the motor vehicle and drove it to the weighbridge station in the absence of the Petitioner’s driver. Further, at the time the motor vehicle was weighed at the weighbridge station, the Petitioners or their representative was not in attendance. Therefore, the Respondent’s officials denied the Petitioners or their representatives the opportunity to observe and verify that the load on the motor vehicle remained unchanged between the points of interception and the weighing. This creates doubts on the integrity and administrative soundness of the weighing process. 92.More so, administrative decisions affecting a person’s right or property should generally be made after giving the affected persons an opportunity to participate in the process. By weighing the motor vehicle load in the absence of the Petitioners, the driver or its representative, the Respondent denied the Petitioners an opportunity to witness the weighing, raise objections or challenge the accuracy of the procedure. Therefore, the administrative impropriety lies not necessarily in the decision to inspect for overloading, to weigh the load, or even to impose a fee, but in the manner in which the interception, inspection, and weighing were conducted. Particularly, the vehicle was taken and weighed without the presence or participation of the Petitioner's driver or representatives, undermining transparency, fairness, and the credibility of the enforcement. 93.I also agree with the Petitioners that the Respondent was obligated to give reasons for its decision to impose the fee, to explain what constituted the alleged overload, how the measurements were undertaken, and how the fee of Kshs. 28,947,891.951/- was arrived at. As it was underscored in Makori v Kenya National Highways Authority [2025] KEHC 4443 (KLR), the Respondent has a duty to provide a clear and adequate explanation to an affected party before levying an overload charge. I find that this procedural failure was in breach of the Petitioners’ right to fair administrative action. 94.The Petitioners also raised questions concerning the provisions of Section 17(4) of the EACVLCA on grounds that the provision vests in the Respondent the combined authority to determine overload, impose financial penalties, detain vehicles and enforce payment without providing a clear, internal appellate or review mechanism. However, having found that the provisions of the EACVLCA do not apply to this matter. Further noting that the Petitioners have not challenged the constitutionality of Section 17(4) in their petition but only raised the contention in their submissions, I find that this Court has no jurisdiction to interrogate the constitutionality of Section 17(4) and I shall say no more. What are the appropriate orders to issue, including on costs? 95.Article 23(3) of the Constitution provides that;In any proceedings brought under Article 22, a Court may grant appropriate relief, including:a.a declaration of rightsb.an injunctionc.a conservatory orderd.a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;e.an order for compensationf.an order of judicial review 96.As guided by the Supreme Court in Communications Commission of Kenya & 5 Others v. Royal Media Services Limited & 5 Others; Petition No. 14, 14A, 14B and 14C of 2014 (Consolidated) [2014] eKLR, and Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) (Petition 3 of 2018) [2021] KESC 34 (KLR), the remedies/ reliefs set out under Article 23(3) are not exhaustive, the High Court has powers to grant appropriate relief, even of an interim nature, in specific cases, to redress the violation of a fundamental right. 97.Concerning compensation for constitutional violation, the law dictates that in the assessment of damages in constitutional violations, the court must take a broader approach to the assessment of damages. In Export Processing Zone Authority & 10 others vs National Environment Management Authority & 3 others [2014] KESC 75 (KLR), the Supreme Court guided that there is a distinct difference between damages in tort and damages for constitutional violations. 98.Thus, the parameters to be examined in both are different. In a tortious claim, the apex court in the above decision directed that the fundamental principle guiding the court's quantification of damages was to restore the injured party to the position they would have been in had the tort not occurred. The goal was to address the harm by providing monetary compensation that reflected the actual damage suffered. On the other hand, in constitutional claims, where fundamental rights have been violated, the courts were directed to take a broader approach to assessment of damages by considering various factors including;a.the nature of the violation.b.the length of time the alleged violation had taken.c.impact on the victim and whether there was a direct harm;d.the broader implications of the case, including the need to deter future violations, uphold the rule of law, and ensure that public authorities or private parties respect constitutional rights. 99.Guided by the above law, I award the Petitioners damages of Kshs. 500,000.00/- as compensation for breach of their right to property and to fair administrative action. On costs, guided by the guiding principles settled in Rai & 3 others vs. Rai & 4 others [2014] KESC 31 (KLR), and bearing in mind the circumstances of the matter at hand, the Respondent shall bear the costs in this petition. G. Disposition 100.Consequently, guided by my findings above, I find the petition meritorious and allow it in the following terms;a.The Petitioners petition dated 15th March, 2024, is hereby allowed;b.A declaration that the Petitioners’ fundamental rights and freedoms as enshrined under Articles 40 and 47 of the Constitution have been contravened and infringed upon by the Respondent;c.The Respondent shall pay to the Petitioners damages assessed at Kshs. 500,000.00/-;d.An order for the release of the security of Kshs. 500,000.00/- to the depositor;e.An order for the release of the Petitioners from the undertaking subject to the ruling of this Court dated 9th May, 2024; andf.The Respondent shall bear the costs. 101.Orders accordingly. DELIVERED, DATED AND SIGNED VIRTUALLY THIS 29TH DAY OF JUNE, 2026RHODA RUTTOJUDGECourt Assistant: Wabwire/SelinaMs. Matunda for the RespondentMr. Okore Jayalo for the Petitioner