[2015] KEHC 2572 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

PETITION NO. 16 OF 2015

MARIUS WAHOME GITONGA……………….……..…….....................….… PETITIONER

VERSUS

KENYA NATIONAL HIGHWAYS AUTHORITY…………......................….. RESPONDENT

RULING

The petitioner is the registered owner of a truck registration KBW 850A. On 21st August 2015 the truck was being driven along the Eldoret Nakuru highway when it was intercepted by officers of the respondent. The petitioner alleges that the officers removed the number plates and abandoned the vehicle along the highway. The petitioner was issued with a document titled “an order to resume [sic] vehicle from road or public place, to offload excess weight, or to effect repairs”.

The petitioner claims the actions of the respondent were arbitrary and unconstitutional. He avers they contravened articles 40 and 47 of the Constitution. He has presented a petition under article 23 of the Constitution to challenge the actions of the respondent; to compel them to release the number plates; for special and general damages; and, for costs. Pending the hearing of the petition, the petitioner has taken out a notice of motion dated 2nd September 2015 praying for a conservatory order. It is supported by a deposition of the petitioner sworn on even date.

The application is contested. There is a replying affidavit sworn on 17th September 2015. In a synopsis, it is averred that the respondent’s officers acted pursuant to axle-load control regulations. It is averred that the petitioner’s driver ran away. The officers pursued the truck and found it had excess load. The officers removed and confiscated the number plates and issued the prohibition order. Learned counsel for the respondents contended that the present petition is a strategy contrived to circumvent the prohibition order.

The petitioner’s driver, Edward Wanyoike, has sworn a supplementary affidavit on 21st September 2015. He denies escaping from the locus in quo. He claims the truck had broken down and he had parked it by the roadside when he was confronted by the officers. They removed the plates and served him with the prohibition. He later contacted the petitioner and drove the truck to the petitioner’s home. He denies that he refused to have the vehicle weighed.

On 22nd September 2015 I heard learned counsel for the parties. I have carefully considered the notice of motion, pleadings, depositions, documents, precedents and the rival submissions.

The main petition in this matter is still pending. It would thus be inappropriate and highly prejudicial to make a final finding at this stage; at any rate on the basis of conflicting affidavit evidence. The key question for determination is whether the petitioner is entitled to a conservatory order pending the hearing and determination of the petition.

The impugned prohibition or notice was issued under sections 55 and 56 of the Traffic Act. There is no dispute that the petitioner's number plates were removed by the respondent. I have studied sections 55 and 56 of the Traffic Act. Section 55 (2) for example provides-

“No motor vehicle the weight or dimensions of which laden or unladen exceeds the maximum weight or dimensions provided for such vehicles by rules made under this Act shall be used on a road”.

Section 56 on the other hand provides as follows-

“No vehicle shall be used on a road with a load greater than the load specified by the manufacturer of the chassis of the vehicle or than the load capacity determined by an inspector under this Act.

No vehicle shall be used on a road if it is loaded in such a manner as to make it a danger to other persons using the road or to persons travelling on the vehicle; and should any load or part of a load fall from any vehicle on to a road such fact shall be prima facie evidence that the vehicle was loaded in a dangerous manner until the contrary is proved to the satisfaction of the court.”

On the face of it, there is a statutory foundation for the action taken by the respondents. However, enforcement of sections 55 and 56 of the Act would seem to require an opinion on the load of the vehicle. That in turn called for the offending truck to be weighed under regulations 17 and 18 of the Kenya National Highways Regulations 2013. I do not think the petitioner’s driver is entirely candid. If the vehicle had broken down by the roadside, it would have been impractical to position it on a mobile weigh bridge. The circumstances point more to failure by the driver to comply with the request for the load to be weighed. But assuming that the driver escaped, it follows that the officers of the respondent did not weigh the truck, or weighed it in his absence. If the driver ran away, how did the officers serve him with the prohibitory order titled“an order to resume [sic] vehicle from road or public place, to offload excess weight, or to effect repairs”? It is also alleged that the officers have retained the number plates and have not surrendered them to the Registrar of Motor Vehicles. The respondent’s counsel admits as much.

From my analysis, one of the parties is lying through his teeth. A truck is private property. Private property is secured by article 40 of the Constitution. The respondent has not satisfied me on the evidence and materials before me that it weighed the truck to find out the excess weight of 10,500 kilogrammes; or, that it adopted fair procedures before confiscating the number plates. I say that very carefully because the petition is still pending. The plates are still in the custody of the respondent. No criminal charges were preferred. I cannot make a finding at this stage whether the respondent acted in bad faith or arbitrarily. But by holding onto the plates, the petitioner has been left stranded with a truck that cannot take to the road. He states that he is incurring costs of Kshs. 25,000 per day. He is holding the short end of the stick. The interests of justice tilt in his favour. I am satisfied that he is entitled to a conservatory order. Flemish Investments Limited v Town Council of Mariakani, Mombasa High Court Case 459 of 2010 (unreported), Suleiman v Amboseli Resort Limited [2004] 2 KLR 589, Giella v Cassman Brown and Company Limited [1973] E.A 358.

To prevent the ends of justice from being defeated, the conservatory order will be conditional upon the petitioner submitting the truck to the respondent for inspection of the construction of the vehicle and its load. I cannot shut my eyes to the important statutory duty placed upon the respondent to ensure safety and that all users of our roads comply with the law.

In the result, a conservatory order is issued against the respondent compelling the respondent to release to the petitioner the set of number plates registration KBW 850A subject to the petitioner submitting the suit vehicle to the respondent for inspection of loading and construction of the vehicle. Costs shall be in the cause.

It is so ordered.

DATED, SIGNED and DELIVERED at ELDORET this 1st day of October 2015.

GEORGE KANYI KIMONDO

JUDGE

Ruling read in open court in the presence of:-

Ms. Karuga for Mr. Kigamwa for the petitioner.

Mr. Alwang’a for Mr. Kahindi for the respondent.

Mr. J. Kemboi, Court clerk.