https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12005

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **JUDICIAL REVIEW DIVISION** **JUDICIAL REVIEW APPLICATION NO. E007 OF 2024** **REPUBLIC…………………….…………………………………………...APPLICANT** **VERSUS** **THE MOTOR VEHICLE EXAMINER (NTSA-THIKA)…..…….1ST RESPONDENT** **THE HON. ATTORNEY GENERAL...............................................2ND RESPONDENT** **AND** **FEISAL HUSSEIN SWALEH…………………....…………EX-PARTE APPLICANT** **AND** **DIRECTOR OF PUBLIC PROSECUTION………..…………INTERESTED PARTY** **JUDGMENT** 1. By a Notice of Motion dated 21/10/2025 under Article 47 of the Constitution, Order 53 Rule 3 of the Civil Procedure Rules, Sections 1A, 1B & 3 of the Civil Procedure Act and all other enabling provisions of the law, the Applicant seeks that: 1. ***Spent*** 2. ***An order of Certiorari be issued directing the 1st Respondent to quash the certificate of examination and test of vehicle (VT B 248521) dated 9th April 2024 in respect of motor vehicle of registration number KDM 065 M, Isuzu FVZ.*** 3. ***An order of Certiorari be issued to quash the proceedings in Thika Chief Magistrate Court Traffic Case No. MCTR/E893/2024 and Baricho Senior Principal Magistrate Court Traffic Case No. MCTR/E079/2024 founded on the impugned certificate of examination dated 9th April 2024.*** 4. ***Costs of this Application be provided for.*** 2. The application is premised on the grounds on the face of it and supporting affidavit of Feisal Hussein Swaleh, the Applicant sworn on even date. He avers that he is the registered owner of motor vehicle registration No. KDM 065 M Isuzu FVZ, and after its purchase in May 2023, the 1st Respondent inspected it and issued him with a certificate of compliance valid up to 15/05/2024. In total disregard of the valid inspection report and up to date data from the NTSA’s tims portal, the 1st Respondent’s officer stopped his motor vehicle and maliciously indicated that the inspection certificate thereon had expired, a fact which he knew was false. The 1st Respondent proceeded to unlawfully remove the identification plates, and his driver was subsequently charged in Baricho SPMC Court Traffic Case No. MCTR/E079/2024. He was also charged in Thika CMC Traffic Case No. MCTR/E893/2024 with permitting use of motor vehicle without identification plates. It is in the interest of justice that the orders sought be granted as prayed. 3. The Respondents opposed the application vide grounds of opposition dated 31/3/2026 that; 1. The application is misconceived, incompetent and an abuse of the court process as it seeks to challenge the lawful enforcement actions undertaken within the 1st Respondent’s statutory mandate. 2. The 1st Respondent acted within the statutory powers under the Traffic Act and the National Traffic and Safety Act in conducting the roadside inspection and enforcing compliance with Motor vehicle regulations. 3. The decision to prefer charges was lawful, reasonable and procedurally fair; the Applicant having been found operating a motor vehicle with an expired inspection certificate in contravention with the law resulting Traffic case No MCTR/E079/2024. 4. The application fails to meet the threshold for judicial review; they have failed to demonstrate illegality, irrationality or any procedural impropriety conducted by the respondents. 5. The applicant has an adequate and alternative remedy within the criminal justice system, including the right to defend himself, challenge the evidence and appeal any adverse finding thereby resulting from Traffic Case MCTR/E079/2024 and MCTR/E893/2024 thus offending the doctrine of exhaustion as embodies in Section 9 of the Fair Administrative Actions Act. 6. No breach of the rules of natural justice or the right of fair administrative action Under Article 47 of the Constitution has been demonstrated. 7. The enforcement measures undertaken by the respondents were proportionate and in furtherance of public interest particularly road safety and regulatory compliance. 8. The application is brought in bad faith and is intended to defeat lawful regulatory enforcement thereby undermining the administration of justice. 9. The application is devoid of merit and ought to be dismissed with costs. **Submissions** 1. The Applicant faults the 1st Respondent for acting irrationally and illegally, and cites *Esther Victoria Wanjiku Mahoro v Mary Wambui Githinji & 3 others [2021] eKLR and Edwin Dande & Others v The Inspector General, National Políce Service & Others [2022] KECA 170 (KLR)*.He urges that the impugned decision was made out of ulterior motive, consideration of illegal enrichment through corruption and abuse of power bestowed upon the 1st Respondent by law. He urges that the impugned decision acknowledges that the motor vehicle had an inspection certificate but the 1st Respondent falsely indicated that the same had expired, yet the expiry date was 36 calendar days away, and prays for the application to be allowed. 2. The Respondents cite *Republic v Cabinet Secretary, Ministry of Health; Kambona (Exparte); Kenya Nutritionists & Dieticians Institute (Interested Party) [2022] KEHC 11412 (KLR)*, for the proposition that the traditional grounds of judicial review as recognized by common law are illegality, irrationality, procedural impropriety and proportionality. They cite *Republic v Kenya Revenue Authority ex parte Yaya Towers Limited [2008] KEHC 489 (KLR)* in urging that the 1st Respondent acted within its statutory mandate in conducting roadside inspections and enforcing compliance through roadside inspections and preferring charges upon establishing that the vehicle lacked a valid inspection certificate. They urge that enforcing road safety regulations and instituting charges falls within the bounds of reasonableness, and cite *Republic v Commissioner of Lands Exparte Somken Petroleum Company Limited [2005] KEHC 738 (KLR) and Suchan Investment Limited v Ministry of National Heritage and Culture & 3 others (2016) eKLR*. According to them, the Applicant has ample remedies under the criminal justice system, including the right to defend himself, challenge the evidence adduced and appeal any adverse finding resulting from Traffic Case MCTR/E079 and MCTR/E893/2024. They urge that the Applicant’s rights under Article 47 of the Constitution were adhered to, as he was promptly presented before court where he was granted a bail of Ksh. 10,000. They urge that the misconceived application ought to be dismissed, and cite *Republic v Cabinet Secretary, Ministry of Health; Kambona (Exparte); Kenya Nutritionists & Dieticians Institute (Interested Party) [2022] KEHC 11412 (KLR)*. **Analysis and Determination** 1. Having considered the application, the grounds of opposition and the submissions by counsel together with the authorities relied on, the singular issue for determination is whether the threshold for grant of judicial review order of Certiorari has been met. 2. In *OJSC Power Machines Limited, TransCentury Limited, and Civicon Limited (Consortium) v Public Procurement Administrative Review Board Kenya & 2 others [2017] KECA 386 (KLR)*, the Court of Appeal expounded that: *“That the purpose of judicial review is to ensure that a party receives fair treatment in the hands of public bodies; that it is the purpose of judicial review to ensure that the public body, after according fair treatment to a party, reaches on a matter which it is authorized by law to decide for itself, a conclusion which is correct in the eyes of the court in a judicial review proceeding. Put another way, judicial review is concerned with the decision-making process, not with the merits of the decision itself. In that regard, the court will concern itself with such issues as to whether the public body in making the decision being challenged had the jurisdiction, whether the persons affected by the decision were heard before the decision was made and whether in making the decision, the public body took into account irrelevant matters or did not take into account relevant matters.”* 1. The Applicant contends that while the 1st Respondent’s officer was carrying out a roadside operation, he stopped his vehicle and wrote on the Certificate of Examination and Test of Vehicle VT B 248521 “expired”. When his driver requested the officer to verify the status on the NTSA TIMS portal, the officer responded that his decision was final, and threatened to charge him for being inquisitive. The 1st Respondent’s officer then proceeded to remove the registration plates from the vehicle. The officer made good his threats by causing the Applicant and his driver to be separately charged in Thika and Baricho with different criminal offences. 2. This court finds that the 1st Respondent officer’s refusal to consider the TIMS data, his insistence that he would not be bound by anything but his own word and his failure to furnish reasons for the impugned decision, amounted to procedural impropriety and was inimical to Article 47 (1) of the Constitution. 3. Ultimately, in arresting and charging the Applicant’s driver in Baricho SPM Traffic Case No. MCTR/E079/2024, on the erroneous premise that the motor vehicle’s inspection certificate had expired, **notwithstanding the existence of an inspection certificate valid until 15/5/2024, the 1st Respondent acted ultra vires, illegally and disproportionately.** 4. The subsequent arrest and charging of the Applicant in Thika CMC Court Traffic Case No. MCTR/E893/2024 was a direct consequence of the 1st Respondent’s irrational and unlawful decision to remove the identification plates from his motor vehicle on 9/4/2024. 5. The totality of the 1st Respondent’s actions and conduct is that the Applicant and his driver were subjected to adverse and unfair administration and criminal processes, without any justification. **ORDERS** 1. Accordingly, for the reasons set out above, the Court finds the Notice of Motion dated 21/10/2025 merited, and it is allowed in its entirety. 2. The respondent shall pay the costs of the suit to the applicant. *Order accordingly.* **DATED AND DELIVERED THIS 30TH DAY OF JULY 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** Mr. Feisal Applicant in person. Ms. Karimi for Mr. Kiongo for the Respondent.