[2022] KEHC 12497 (KLR)

Thelmax Contractors Limited v Kenya National Highways Authority & 2 others (Miscellaneous Criminal Application 58 of 2015) [2022] KEHC 12497 (KLR) (8 July 2022) (Judgment)

Neutral citation: [2022] KEHC 12497 (KLR)

Republic of Kenya

In the High Court at Kakamega

Miscellaneous Criminal Application 58 of 2015

WM Musyoka, J

July 8, 2022

Between

Thelmax Contractors Limited

Applicant

and

Kenya National Highways Authority

1st Respondent

Officer in Charge Busia Weighbridge

2nd Respondent

Director of Public Prosecutions

3rd Respondent

Judgment

1. The applicant had moved the court, by a Notice of Motion, dated 9th November 2015, filed herein on 10th November 2015, under Articles 22, 23 and 40(1)(3) of the Constitution of Kenya , 2010, seeking release or surrender of number plates for its motor vehicle, registration mark and number KCC 940W Mitsubishi Fuso unconditionally, orders to prohibit his prosecution or that of his driver in respect of alleged excess load as stated in a removal order dated 24th October 2015, a declaration that the removal order dated 24th October 2015 had no basis and was unlawful and compensation to a tune of Kshs. 33, 640. 00 per day from 25th October 2015 till the return of the number plates.

2. The grounds and facts upon which he sought the orders were set on the face of the Motion, as well as on the affidavit that he swore in support, by Samwel Omusula Libuyi, the Managing Director of the applicant, sworn on 9th November 2015. It is averred in that affidavit that the subject motor vehicle was the property of the applicant, acquired through a loan danced by the Kenya Commercial Bank. On 24th October 2015, it was involved in a road traffic accident, with a motorcycle, at the Gisambayi-Mbale section of the Kisumu-Kakamega Highway. The vehicle was driven to the Vihiga Police Station. On 25th October 2015, person who identified themselves as officers from the Busia Weighbridge came to Vihiga Police Station, and removed the registration number plates from the vehicle, and left behind the removal order for excess load. The vehicle had not been carrying any load from Kisumu to Kakamega, which made the removal baseless. The vehicle had also not been weighed by officers from the Busia Weighbridge. The motor vehicle was subsequently driven to the Kakamega Police Station, without the number plates, where it was inspected on 26th October 2015it is averred that the vehicle had been contracted by the Lugari Constituency Development Fund, on 27th July 2015, at the rate of Kshs. 33, 640. 00, and that as a consequence of that removal it was not available to execute the contract, and the applicant was losing Kshs. 33, 640. 00 daily. It is averred that the removal of the number plate was actuated by malice. It is averred that neither the driver nor the owner of the vehicle was ever charged with any offence. It is submitted that the motor vehicle was exposed to repossession by the lender for non-payment of the loan on account of the grounding of the vehicle due to the removal of the plate. The respondents are accused of economic sabotage. Some documents are attached to support the case.

3. The application was placed before the Judge, on 17th November 2015, who ordered the 1st and 2nd respondents to surrender the number plates to the applicant unconditionally. The Motion was to be heard inter partes with respect to the rest of the prayers.

4. A reply to the application was filed on 9th December 2016, being an affidavit sworn on 31st July 2016, by Isaiah Japheth Onsongo, the Axle Load Control Manager for the 1st respondent. He avers that officers from the Kenya Police SGS and the 1st respondent, attached to the Busia Weighbridge, had, on 24th October 2015, intercepted the subject motor vehicle along the Kapsabet-Vihiga- Kisumu Road. The vehicle is said to have been overloaded, and it was stopped for weighing. The driver of the vehicle did not stop, instead he diverted the vehicle to a murram road, and stopped offloaded the cargo there. On account of that overloading a prohibition or removal order was processed and issued, and the number plates were removed and forwarded the National Transport and Safety Authority. The vehicle was assessed to have been overloaded to extent of 8, 200 kilogrammes. It is explained that the number plates were removed to prevent the motor vehicle going back to the road without offloading the excess load. It is asserted that the removal of plates did not violate the law. It is averred that the 1st respondent did not have the number plates, as they were removed by the police and forwarded to the National Transport and Safety Authority.

5. The 1st and 2nd respondents filed a Notice of Preliminary Objection dated 25th November 2018, arguing that there was no substantive claim , and the Motion of 9th November 2015 be struck off. The preliminary objection was canvassed by way of written submissions, and was dismissed on 7th May 2021, on the holding that the nature of the claim was sufficiently disclosed in the affidavit sworn in support of the Motion.

6. Thereafter, the parties agreed to canvass the application by way of written submissions. Leave was also given for filing of further or supplementary affidavits if at all.

7. Only the applicant filed a supplementary affidavit, through Samwel Omusula Libuyi, to place three documents before the court. One, being the contract between the applicant and the Lugari Constituency Development Fund. Two, being the order extracted from that made on 17th November 2015 for the unconditional surrender of the number plates. Three, being an affidavit of service meant to demonstrate service of the order.

8. In its written submissions, the applicant argues that the acts of the respondents were without any legal reason, and if any existed, they had not been disclosed and justified in the pleadings. it has cited Republic vs. Cabinet Secretary for Transport and Infrastructure Principal Secretary and 5 others, ex parte Kenya Country Bus Owners Association and 5 others [2014] eKLR (Odunga J), to support its case. It is submitted that the wrong was compounded by the failure by the respondents to comply with the order made on 17th November 2015, to surrender the number plates without any conditions. It is submitted that the removal of the number plates without lawful cause or justification was arbitrary and a direct contravention of Article 40(2) (a) of the Constitution. On whether compensation should be payable, it cites Paris Mutwiri John vs. Base Commander Maua Traffic Base & another [2021] eKLR (Muriithi J), for the position that equity cannot suffer a loss without remedy. It submits that the vehicle was grounded from 24th October 2015, when the number plates were removed, till 30th January 2017, when they were returned. A total of 463 days. It is submitted that the applicant had a contract for Kshs. 33, 640. 00 daily, and claims compensation for the entire 463 days, which comes to Kshs. 15, 576, 246. 00 special damages. In addition, it is submitted that the applicant is entitled to Kshs. 3, 000, 000. 00 as general damages.

9. The 1st respondent’s written submissions are 22nd July 2016, and were filed herein on 25th July 2016. It cites section 55 and 56 of the Traffic Act, Cap 403, Laws of Kenya, which relate to excess load or overloading or manner of loading which exposed the public to danger. Republic vs. Officer In Charge of Axle Load Monitoring & 2 others ex parte Lazarus Kyalo Musyoka [2015] eKLR (Korir J), to make the point that removal of number plates was permissible for violation of sections section 55 and 56 of the Traffic Act . It is submitted that the applicant violated those two provisions in that itis vehicle carried an excess load of Kshs. 8, 200. 00. It is submitted that under sections 22(d) and 46 of the Kenya Roads Act, there was no provision for pressing charges, and that instead the 1st respondent has discretion to impose a fee. Blue Jay Investment Limited vs. Kenya National Highways Authority [2014] eKLR (Mutende J) is cited to support the contention that the law does not provide for initiation of charges for such circumstances, and that instead a fee would be applicable. It is submitted that the applicant had violated regulations, and should not be rewarded for it by way of compensation.

10. The factual basis of this case is highly contested. The applicant says that its vehicle had been involved in an accident along the Kakamega Kisumu Highway, and was driven to the Vihiga Police Station, where the respondents came and removed its number plates. It asserts that the vehicle was not loaded with any cargo. The respondents contend that the driver of the vehicle defied a stop order by State agencies, and diverted from the Kapsabet-Vihiga-Kisumu Highway into a murram road, where it offloaded its cargo. The excess weight was adjudged to be 8, 200 kilogrammes, and the number plates were removed after a prohibition order was issued.

11. So, which of these versions is correct. It is difficult to gauge from the paucity of facts presented. The applicant alleges that there was an accident involving its motor-vehicle and a motorcycle, and the police had the vehicle taken to the Vihiga Police Station. It has placed on record a certificate of examination and test of vehicle, dated 25th October 2015, which talks of an accident involving the subject motor vehicle and a motorcycle on 24th October 2015, at Mbale, along the Mbale-Gisambai Road. No documentary material was presented as to whether there were any charges brought in court against either of the drivers involved. Both sides appear to agree, going by the proceedings of 1st February 2017, that there was indeed a traffic case, which arose from that accident alleged by the applicant, where the driver of the applicant’s vehicle was charged with knocking down a cyclist, being Vihiga PMCTRC No. 58 of 2016. So, the allegation that the applicant’s vehicle was in a collision with a cyclist appears to be factual. How what appears to be a matter of a collision between two motor vehicles became a case of overloading, is what is a mystery, for it is not clear how the respondents got into that picture after the said accident.

12. Secondly, the matter of the overloading is contentious. The applicant asserts that its vehicle was not loaded with any cargo when it got involved in that accident. The respondents do not allude, in their pleadings to that accident, but assert that the vehicle had an excess load, the driver defied orders to stop, and drove the vehicle into a bush and offloaded the cargo onto an earth road. The respondents moved in assessed the weight, and removed the number plates. I find it curious that although it is the respondents who assert that the vehicle was loaded, to the extent of carrying beyond capacity, and that that load was offloaded onto the road, the respondents have given no indication of what the alleged load constituted of. It do not think it is enough to allege that a vehicle carried an excess load, which exceeded capacity, without indicating what the load was. The applicants assert there was no load, surely the burden shifted to the respondents to demonstrate that there was indeed a load, by disclosing what was being carried, and provide proof of the same.

13. Thirdly, the unnamed cargo or load was said to have had been offloaded on to the road, yet the respondents say the load had been offloaded without the vehicle being weighed. They then issued the prohibition order requiring the applicant to offload the excess load. The number plates were then removed to bar the vehicle from going back to the road without first offloading the excess weight. I cannot make sense of this. At the time the prohibition order was being made and the number plates removed, the vehicle had already been offloaded. Which I understand to mean it had no load or excess load, so what did the respondents expect the applicant to offload if the vehicle had already been offloaded. What do they mean by saying that the plates were removed to prevent the vehicle from going back into operation without offloading the excess weight, if the weight had already been offloaded?

14. Fourthly, the unnamed load was not weighed. It is claimed that the same was ascertained based on the dimensions and capacities of the motor vehicle in relation to the axle load prescribed for the class of vehicle. So it would appear that the excess weight figure of 8, 200 kilogrammes was plucked from the air, for the alleged load was not weighed. It is not described how the respondents came up with the said weight when the nature or type of cargo or load is not even described. All loads cannot be of the same weight, for weight will depend on the texture of the load. Was it cotton, or maize, or soil, or sand, or manure, or stones, or manufactured goods?

15. From the material presented, I am not persuaded that the respondents have demonstrated that they were justified to remove the plates of the applicant’s vehicle. The factual background to their case sounds implausible and not credible. The applicant is, therefore, justified to assert that its rights were violated, for its vehicle was impounded unjustifiably, and was kept out of its reach for 463 days. This was a commercial vehicle, from what I can see from the documents, a Tipper to be precise. Having it parked for 463 days without it being used exposed the applicant to economic ruin, and denied the national economy much needed revenue by way of taxes and levies from activities it was employed in. The vehicle itself was not impounded, but the removal of the identification plates meant that it could not be used on the road. It was, therefore, a deprivation of a right to property or even of the property itself, for the applicant could not use it at all. It is my finding that there was a violation of Article 40 of the Constitution. The violation is compounded by the fact that the order of 17th November 2015 was served on the 1st respondent on 1st December 2015, according to the affidavit of Boniface Masinde, Advocate, of 8th December 2015, filed herein on 20th May 2016, but the 1st respondent declined to comply with the order, explaining it away on the alleged basis that it did not have possession of the number plates, and, therefore, it had nothing to surrender, yet it was its officers who had removed the same from the vehicle of the applicant. I note that no effort was made to mitigate or ameliorate that, by the 1st respondent going back to court, to have the order reviewed on those grounds. In any case, the National Transport Safety Authority, who it alleged was in possession of the number plates, was not party to their removal from the applicant’s vehicle.

16. On whether the applicant is entitled to compensation for such deprivation, the answer would lie in Articles 22 and 23 of the Constitution, 2010. Under Article 22, a person who alleges violation or denial of their rights is entitled to move the court in that behalf. Under Article 23(3), for proceedings brought under Article 22, the court may order, among others, for compensation. The cause herein is predicated on both Articles 22 and 23 of the Constitution. The claim is that Article 40 was violated, and it is on that basis that the applicant moved court under Article 22, seeking compensation under Article 23. I have found that there was a violation of a right under Article 40, and I hold that the applicant is entitled to compensation.

17. What ought the quantum to be? Article 23(3) does not deal with assessment of quantum of compensation. The applicant pleads for both special and general damages. Special damages being with respect to the income he would have received from the use of the vehicle. He has attached documents that show that he had a contract with the Lugari Constituency Development Fund for Kshs. 33, 640. 00 per day. The existence of that contract has not been controverted. That is a material loss, which ought to attract compensation by way of special damages. Courts have generally awarded compensation, in the form of general damages for violation of rights. In Paris Mutwiri John vs. Base Commander Maua Traffic Base & another [2021] eKLR (Muriithi J), cited by the applicants, the court awarded compensation at Kshs. 1, 500, 000. 00 for impoundment of registration plates of a vehicle for over two years. The court considered other cases where awards were made for Kshs. 2, 000, 000. 00 where vehicle was impounded for 10 months; Kshs. 3, 000, 000. 00 for 10th months; Kshs. 2, 500, 000. 00 for unlawful detention and seizure of a motor vehicle; and Kshs. 500,000. 00 where vehicle was impounded for six months.

18. The applicant was kept away from the number plates of its vehicle for 15 months and 6 days. I shall award the applicant a sum of Kshs. 3, 000, 000. 00 for that violation, after taking due consideration of the facts and circumstances of the case. On special damages, it has been proved, on a balance of probability, that there was a contract of Kshs. 33, 640. 00 per day at the time the said number plates were removed. When applied to the 463 days, it would total to Kshs. 15, 575, 320. 00, which I hereby award to the applicant as special damages. The applicant shall have the costs of the suit. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 8TH DAY OF JULY 2022WM MUSYOKAJUDGEErick Zalo, Court Assistant.Mr. Mbaka, instructed by Omwando Mbaka & Company, Advocates for the applicant.Mr. Aringa, instructed by Munyao Muthama & Kashindi, Advocates for the respondent.Ms. Kagai, instructed by Office of Director of Public Prosecution, for the Republic