https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9916

Twistar East Africa Limited v Kenya National Highway Authority & another (Petition E003 of 2024) [2026] KEHC 9916 (KLR) (29 June 2026) (Judgment) Neutral citation: [2026] KEHC 9916 (KLR) Republic of Kenya In the High Court at Machakos Petition E003 of 2024 RC Rutto, J June 29, 2026 IN THE MATTER OF ARTICLES 10, 22, 27, 153, 232 and 259 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE ALLEGED CONTRAVENTION OF CONSTITUTIONAL RIGHTS AND FREEDOMS UNDER ARTICLES 27, 40, 43, 47, 48 AND 50 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE EAST AFRICAN COMMUNITY VEHICLE LOAD CONTROL ACT, 2016 AND IN THE MATTER OF THE EAST AFRICAN COMMUNITY VEHICLE LOAD CONTROL (ENFORCEMENT MEASURES) REGULATIONS, 2018 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 Between Twistar East Africa Limited Petitioner and Kenya National Highway Authority 1st Respondent Attorney General 2nd Respondent Judgment A. Background to the petition 1.The Petitioner is a limited liability company and the registered owner of a motor vehicle, Isuzu FVZ registration No. KDM 107V and a trailer registration No. ZH2351 (hereinafter referred to as the motor vehicle). The motor vehicle is jointly owned with Sidian Bank Limited, the financiers under a Vehicle and Assets Finance. The Petitioner is in the transportation business, ferrying construction materials, waste materials, farm produce, among others. The 1st Respondent is a state corporation responsible for the development, rehabilitation, management and maintenance of National Trunk Roads. The 2nd Respondent is the Chief Legal Adviser of the Government of Kenya and has been sued in that capacity. 2.On 18th January, 2024, the Petitioner's motor vehicle, while transporting sand, was impounded and detained by the 1st Respondent’s officials under the provisions of the East African Community Vehicle Load Control Act, 2016 (hereinafter EACVLCA) and East African Community Vehicle Load Control (Enforcement Measures) Regulations, 2018 (hereinafter Regulations, 2018). The circumstances leading to the impoundment and detention are in dispute between the parties in this petition. 3.On 21st February, 2024, this Court (Olel J) determined the Petitioner’s application dated 8th February, 2024, seeking conservatory orders, and directed the 1st Respondent to release the motor vehicle to the Petitioner. The 1st Respondent disregarded the court orders, and the Petitioner filed contempt of court proceedings vide an application dated 11th March, 2024. The 1st Respondent also filed an application dated 15th March, 2024, seeking to set aside the orders of 21st February, 2024. Later, the 1st Respondent released the motor vehicle on 26th March, 2024, and abandoned its application dated 15th March, 2024. B. Petitioner’s Case 4.By a petition dated 8th February, 2024, and amended on 18th February, 2025, which was admitted by this Court on 4th March, 2025, the Petitioner challenges the interception, arrest and detention of the motor vehicle by the 1st Respondent’s officials. It also opposes the charge of Kshs. 46,898,643.00/- as a fee for overloading under the EACVLCA and Regulations, 2018. The Petitioner contends that the officials of the 1st Respondent unlawfully, maliciously, and unfairly immobilised and impounded the motor vehicle. 5.The Petitioner avers that on 18th January, 2024, its motor vehicle was transporting sand along an unmarked, unpaved dirt road off Mombasa Road, at the Katumani Junction area near Konza Technopolis when the 1st Respondent’s officials, while aware that the motor vehicle was not on a tarmac road, or a road under Class S, A, or B, unlawfully impounded the motor vehicle, forcefully managed and drove it to the Athi River Weighbridge Station, hurriedly weighed it and condemned the Petitioner to pay an overloading fine of Kshs, 46,898,643.00/-. 6.In addition, the Petitioner contends that the 1st Respondent imposed storage charges of USD 50 per day from the third day of non-payment of the fine until payment in full; and threatened to sell the motor vehicle by auction to recover the fine and charges, if the fine remained unpaid within sixty days of impoundment. Further, it is the Petitioner’s case that the fine and charges were imposed without affording it a fair opportunity to be heard in an independent, judicial process in violation of its rights to a fair hearing. 7.It is also asserted that upon taking possession of the motor vehicle from the 1st Respondent as directed by this Court, the motor vehicle had been vandalised, and parts of an estimated value of Kshs. 1,500,000.00/- were removed by the 1st Respondent’s officials, occasioning it losses. Furthermore, the Petitioner pleads that after the impugned impoundment, the 1st Respondent caused to be published a defamatory article in the Nation Newspaper, on 19th January, 2024, describing the Petitioner as ‘few selfish individuals’ and misinforming the readers that the motor vehicle had been impounded with a load in excess of 54,000 kilograms, leaving out the information that the arrest was made at an untarmacked and unmarked road. The Petitioner also urges that this was prejudicial and caused loss of business. Moreover, that the publication was made without affording it the right of reply in violation of its rights to fair administrative action, information, correction and deletion of untrue and misleading information and access to justice. 8.It is the Petitioner’s further case that the 1st Respondent waived fines and released impounded vehicles from its various weighbridge stations. It argues that the act of pardoning some cargo transporters and waiving the fines, irrespective of whether lawfully or unlawfully, yet maintaining fines against it, is an act of direct discrimination contrary to the Constitution. 9.The petition is supported by the affidavit sworn by Joseph Kathae Ndunda, the Petitioner’s director. He avers that the Petitioner is the registered and beneficial owner of the motor vehicle, having purchased it through an Asset Finance Facility with Sidian Bank for Kshs. 12,271,500.00/-, together with an insurance funding of Kshs. 300,400.00/-. He further avers that under this Facility, the Petitioner has an obligation to pay a monthly instalment of Kshs. 363,174.10/- and further Kshs. 32,310.93/- on the 22nd day of each month, failure to which the motor vehicle, the security of other motor vehicle registration Nos KDC 903R and KDC 511E, and property Nairobi/Block/82/1302 would be forfeited. He relies on Exhibits JKN-01 and JKN-02, the logbook and the Facility Letter. He further states that the Petitioner advances the income from its transportation business to service the said facility, and the loan balance at the time of filing the petition was Kshs. 11,720,113.90/-. He relies on the bank statement marked as JKN-03. 10.Thereafter, he reiterates the averments in the amended petition as summarised in the foregoing paragraphs and relies on the following: the annexures marked as JKN-04 as proof that the Petitioner was at the material time authorized to carry out the transportation business; and the 1st Respondent’s order requiring the Petitioner to pay the fines and the storage charges, marked as JKN-05. To persuade the Court to grant the orders sought in the amended petition, he relies on the decision of the High Court in Petition No. 226 of 2019, Petition No. 13 of 2019, Petition No. 22 of 2017 and Petition No. 31 of 2015, marked as JKN-06, JKN -07, JKN-09, and JKN-10 respectively; and Court of Appeal in Appeal No. 67 of 2019 marked as JKN-08. 11.He also restates that: the 1st Respondent’s officials unlawfully impounded the motor vehicle and forcefully drove it to the tarmac road and into the weighbridge station; the 1st Respondent’s officials in an effort to find the Petitioner culpable of overloading interfered with the cargo on the motor vehicle; the 1st Respondent’s officials demanded for a bribe; and the 1st Respondent continues to apply provisions of the law that have been declared unconstitutional. Therefore, that the 1st Respondent’s actions or omissions violated the Petitioner’s rights under Articles 27, 40, 47, 48 and 50 of the Constitution. 12.The Petitioner relies on a second supporting affidavit sworn by Samuel Mutua Mutuku, the Petitioner’s Transport and General Manager. He details the Petitioner’s mode of operation, noting that normally, a trip starts at around 6:00 am, when the motor vehicle is driven to the river and loaded with sand between midnight and 4:00 am the following day. After loading, the motor vehicle is driven through an untarmacked path to an open field, and later offloaded to smaller tonnage lorries between 5:00 am and 1:00 pm. 13.It was stated that the motor vehicle is fitted with a GPS tracker, which generates a Trip Report and a GPS Report of the day’s activities. He stated that on 17th January, 2024, the Petitioner’s motor vehicle began its trip at 6:11 pm and was driven to the river bed near Erankau Primary School in Imaroro Ward, Kajiado East, Kajiado County for loading. The motor vehicle was loaded at about 2:15 am on 18th January, 2024, and then driven to an open field near Katumani Junction, near Konza Technopolis, Machakos County. 14.Further, he depones that while awaiting confirmation of the Petitioner’s orders at the field, at about 4:15 am, the 1st Respondent’s officers wearing reflector jackets branded Ebenezer Commercial Workers, and in the company of two police officers, approached the motor vehicle and demanded a bribe. He averred that when the Petitioner’s driver and turnboy failed to give the bribe, they were instructed by the 1st Respondent’s officials to inform him, as the transport manager, of what was required. He argued that he explained to the 1st Respondent’s officials that the Petitioner was compliant and had the requisite permits to harvest sand, and instructed the driver to furnish them with the said paperwork. 15.He avers that despite the explanation, the 1st Respondent’s officials took control of the motor vehicle, drove it towards Isinya-Kiserian Road and into Mombasa Road and to the Athi River Weighbridge Station, hurriedly weighed it and fined the Petitioner Kshs. 46,898,643.00/- for overloading. He states that he caught up with the 1st Respondent’s officials and the motor vehicle past the Machakos Junction at around 5:00 am, and realised that the motor vehicle was being driven by an officer of the 1st Respondent. He added that at Mto wa Mawe on Mombasa Road, an accident occurred involving a motor vehicle and a pick-up. He adds that the police officers accompanying the 1st Respondent’s officials called the traffic police and misrepresented that the Petitioner’s driver had caused the accident. He produced in evidence the motor vehicle Trip Report as well as the GPS Report marked SMM-01 in support of the motor vehicle's trip from 17th January, 2024, at 6:11 pm when the trip started, to 18th January, 2024, at 9:08 am when the motor vehicle was parked at the 1st Respondent’s Weighbridge Station. 16.Moreover, he avers that upon the release of the motor vehicle on 26th March, 2024, by the 1st Respondent, after inspection, he realised that several parts were missing, the motor vehicle was vandalised and damaged while in the 1st Respondent's custody. He relied on the Inspection Certificate and the receipt for part of the repairs marked SMM-03. It was his further averment that the Petitioner collects about Kshs. 700,000.00/- per month as revenue from the transportation business using the motor vehicle, where Kshs. 400,000.00/- is utilised to service the loan facility, Kshs. 100,000.00/- to pay salaries and wages, Kshs. 80,000.00/- to obtain the permits for harvesting sand from the County Government, Kshs. 40,000.00/- for the motor vehicle maintenance and repairs, and retains Kshs. 80,000.00/- as profits. He also avers that he was aware of the publication by the 1st Respondent in the Daily Nation and produced a copy of the publication marked SMM-02. He further states that the 1st Respondent had released trucks impounded in Kiambu County and preferentially waived the penalties imposed while sustaining the alleged fines against the Petitioner. He relied on the Daily Nation publication marked as SMM-04. 17.The third supporting affidavit was by Muli Kikuvi, the Petitioner’s driver, wherein he restates the averments by Samuel Mutua Mutuku. He further states that, in normal operations, the motor vehicle is loaded at night and driven to an open field where it is offloaded to smaller lorries. He avers that on 18th January, 2024, at around 4:00 am, he was at a field in the Katumani junction area near Konza at a place called Masitimani, waiting to offload the sand upon confirmation of orders by the Petitioner. He states that two 1st Respondents’ officers and two police officers operating the Athi River Weighbridge in two double-cabin pick-ups approached the motor vehicle. 18.He avers that the officers informed Samuel Mutua Mutuku that they were on patrol and instructed him to turn off the motor vehicle engine, and requested a bribe of Kshs. 50,000.00/-. When the officers were informed that the driver did not have the requested amount, one of the 1st Respondent’s officials snatched the motor vehicle ignition keys, ordered him and the driver to move to the back of the driver’s seat, and drove towards Mombasa Road. 19.He stated that he informed the Transport Manager, who tried to intervene; however, the 1st Respondent's official continued to drive the motor vehicle on Mombasa Road until around 5:24 am when the official caused an accident. He argues that the police officers accompanying the 1st Respondent’s officials called the traffic police and misrepresented to them that it was the Petitioner’s driver who had caused the accident. He asserts that thereafter they proceeded to the Weighbridge Station, where he was detained, the 1st Respondent officials weighed the motor vehicle, and imposed a fine of Kshs. 46,898,643.00/-. 20.The fourth supporting affidavit was sworn by Joseph Muya Daudi, the Petitioner’s turnboy, who restates the averments by the Petitioner’s driver verbatim. Particulars of breach 21.The Petitioner contends that the unlawful impounding and detention of its motor vehicle and the imposition of a fee of Kshs. 46,898,643.00/- without a proper adjudicatory and judicial process, and the levying of unlawful storage charges, contravene its rights to property, fair hearing and freedom against discrimination. 22.The Petitioner further urges that the continued detention of its motor vehicle, including the cargo, was prejudicial to its business, resulting in losses, and exposed it to possible distress by its financier bank, contrary to its right to property. It is also the Petitioner’s case that the vandalisation of its motor vehicle while in the custody of the 1st Respondent necessitated repairs costing Kshs. 1,500,000.00/-, accentuating the breach of its property right. 23.In addition, it is the Petitioner’s case that the 1st Respondent’s officials’ actions are unlawful, unreasonable, irrational, unfair, against the unreasonableness principle, and contrary to the rules of natural justice. Principally, the impoundment of the motor vehicle and the imposition of the impugned fines without due process or according it a hearing was in disregard of the rules of natural justice enshrined in Article 47 of the Constitution and the protection by the Fair Administrative Action Act, 2015. The Petitioner also pleads violation of its rights against discrimination grounded on the 1st Respondent’s alleged preferential waiver of fines imposed on other cargo transporters. Reliefs Sought 24.Based on the foregoing, the Petitioner seeks the following reliefs;a.A permanent injunction restraining the 1st Respondent, its officers and/or servants from impounding and detaining or interfering with the motor vehicle without affording the Petitioner a fair hearing through a judicial process as contemplated under Article 50 as read together with Articles 47 and 48 of the Constitution;b.A declaration that the 1st Respondent’s action of levying a fine was in contravention of Regulation 15(5) of the Kenya Roads (Kenya National Highways Authority Regulations, 2013, without affording the Petitioner due process, violated the rights of the Petitioner under Articles 40, 47 and 50 of the Constitution;c.A declaration that Regulations 14 and 15 of the Kenya Roads (Kenya National Highways Authority), 2013 contravene Articles 40, 47, 50 and 159(1) of the Constitution;d.An order of Judicial Review in the nature of Certiorari be issued to remove to this Court for the purpose of being quashed the decision made by the 1st Respondent on 18th January 2024, imposing a fine of Kshs 46,898,643 and storage fees;e.An award of special damages of Kshs 500,000.00 per month as compensation for loss of use, business and earnings incurred during the immobilisation of the subject motor vehicle occasioned by the 1st Respondent from 18th January 2024 to 26th March 2025;f.An award of special damages in the sum of Kshs 1,500,000.00 being the cost of repairs resulting from the vandalisation of the motor vehicle during the period of immobilisation at the 1st Respondent’s facility;g.An order for deletion of the publication made on the Daily Nation on 19th January 2024 and publication of an offer for amends to the Petitioner, of similar prominence;h.An order requiring the 1st Respondent to openly and publicly publish an account of fines, penalties and storage charges obtained from cargo transporters in Athi River Weighbridge from 1st January 2023 to the date of delivery of the judgment of this Court;i.An award of general damages for the violation of constitutional rights;j.A structural interdict of this Court’s own terms or permanent order that the 2nd Respondent must ensure that any laws or regulations in force governing the operations of the 1st Respondent or the use of the Kenyan Roads or weighbridges, must comply with the rules of natural justice and provisions of the Constitution of Kenya, any such damages occasioned in the absence thereof, be paid by the responsible officer;k.Costs; andl.Any other relief that the court deems fit. C. The 1st Respondent’s Case 25.The 1st Respondent filed a cross petition dated 29th May, 2024, wherein it avers that while its mobile patrol team was in the Lukenya area in Athi River, along Nairobi-Mombasa Road, they saw a motor vehicle, and suspected it was overloaded. Further, when the 1st Respondent’s officials flagged it down to assess it for overloading, the Petitioner’s driver attempted to drive off and in the process, caused an accident by hitting a pick-up registration No. KDK 114D. The 1st Respondent asserts that the driver tried to flee the accident scene, but the police officers accompanying the patrol team caught up and called for reinforcement from the Athi River Traffic base, who later processed the accident scene. 26.The 1st Respondent contends that at the weighbridge, the motor vehicle was weighed in the presence of the Petitioner’s director and driver, and it was found overloaded in excess with 29,940 kgs on the gross vehicle weight, above the legally permissible weight of 54,000kgs. The 1st Respondent urges that the motor vehicle was in use along a Regional Trunk Road Network as defined under the First Schedule of the EACVLCA, and for this reason the driver was issued with the weighing report and the motor vehicle detained under the EACVLCA; the driver was also issued with the weighbridge ticket and advised that a fine of USD 292,321.95 equivalent to Kshs. 46,898,643.00/- had been levied under the EACVLCA and the Regulations, 2018. It contends that when the fine remained unpaid, the motor vehicle was detained in terms of Section 17(1) (4) to (7) of the said Act. 27.The 1st Respondent also affirms that when the motor vehicle was released to the Petitioner, subject to the orders of the Court, it was reweighed in the presence of the Petitioner’s representative; and the overload sand was redistributed to four other lorries, registration numbers KDM 107V, KCA 958P, KBS 208V, and KBY 520J. Moreover, it is the 1st Respondent’s case that, contrary to Section 17(7) of the EACVLCA, the Petitioner is in arrears of the fine of Kshs. 46,898,643.00/- and accumulated storage fees of USD 3,400.00 calculated at a rate of USD 50 per day, for the sixty-eight days the motor vehicle was detained. 28.Consequently, the 1st Respondent seeks the following reliefs in its cross-petition:i.Orders compelling the Petitioner to pay the overload fees of USD 292,321.95 (Kshs. 46,898,643.00), which sum is levied as per the EACVLCA and the Regulations, 2018 and storage fees of USD 3,400.00 charged at the rate of USD 50 per day;ii.Orders compelling the Petitioner to issue the 1st Respondent security for the payment of the overload fees and, in default, the 1st Respondent be at liberty to seek enforcement for the payment thereof;iii.Interests in the amounts in (i) above; andiv.Costs. 29.In its response to the amended petition and support of its cross-petition, the 1st Respondent filed an affidavit by Dr. Eng. Michael Ngala, the 1st Respondent’s Deputy Director, Axle Load Control Department, on 29th May, 2024, and a supplementary affidavit on 21st May, 2025. It is urged that the 1st Respondent has the mandate to manage, develop, rehabilitate and maintain national trunk roads under section 4(1) of the Kenya Road Act. Further, the 1st Respondent manages various weighbridges in Kenya under Section 4(2)(d) of the same Act; under Section 4 of the Kenya Road Act, the 1st Respondent has the obligation to ensure adherence to the rules and guidelines on axle control prescribed under the Traffic Act and the Regulations under the Kenya Road Act, 2007, among other obligations; under Section 22(1)(c) of the Kenya Roads Act, the 1st Respondent has the powers to measure and assess the weights, dimensions and capacities of vehicles using any road and to provide measures to ensure compliance with rules relating to axle load control, other provisions of the Traffic Act, Regulations under the Traffic Act and the EACVLCA; and in the enforcement of the outlined mandate, the Kenya Roads Act, the Traffic Act and the EACVLCA bind the 1st Respondent. 30.He contends that pursuant to the provisions of EACVLCA, when it is established that a motor vehicle is overloaded, the vehicle in question is prohibited from continuing with the journey unless the fees on overloading are paid and the excess weight offloaded. Further, he contends that Section 17 of the EACVLCA clearly sets out a detailed procedure in instances where an overload is detected, and this procedure does not require a party to be charged in a court of law. On the contrary, a transporter is required to pay the fine prescribed in the said EACVLCA and Regulations, 2018. 31.He reiterates the averments in the cross appeal, arguing that the motor vehicle was intercepted by the 1st Respondent’s mobile team officials and police officers on 18th January, 2024, at Small World, in Lukenya, Athi River, along Mombasa Road on the Nairobi-Mombasa Highway, on the Northern Corridor of the Regional Trunk Road (as defined under Section 3 and the First Schedule of the EACVLCA). He avers that, therefore, the EACVLCA and Regulations, 2018, were the applicable legal framework, and not the Traffic Act. He specifies that when the Petitioner’s driver was flagged down, he defied the order to stop and attempted to drive off, causing an accident and was later stopped by the police officers accompanying the 1st Respondent's patrol team with reinforcement from the Athi River Traffic Base. He relies on the Police OB No. 18/18/01/2024 and abstracts marked as MN1 and MN2, respectively, and the Tracking Report of the 1st Respondent’s motor vehicle used for mobile operations marked MN 10. 32.It is his further averment that the motor vehicle was driven to the Athi River Weighbridge station, was weighed, and when it was determined that it was overloaded, a fine of USD 292,321.95 (Kshs. 46,898,643.00) was levied under the EACVLCA; and a weighbridge ticket was issued. He relies on the Weighbridge ticket marked MN3. He also emphasises that after the issuance of the ticket, neither the Petitioner nor its agents made any objections or lodged an appeal in line with the provisions of Section 17(1)(4) of the EACVLCA as read together with Regulations, 2018. 33.He reiterates the averments by the 1st Respondent in the cross petition verbatim, relying on the following documents annexed to the affidavit: a copy of the weighbridge ticket dated 26th March, 2025, issued after re-weighing and distribution of the excess weight to three lorries marked MN4; the second ticket issued after reweighing, in comparison to the initial weighbridge ticket issued on 18th January, 2024, marked MN5; weighbridge tickets of the weighs of the three lorries before the excess load was loaded marked as MN6; photos of the offloading exercise marked as MN7; weighbridge tickets after offloading and redistribution to the three lorries marked as MN8; Police statements detailing where the motor vehicle was flagged down, who was driving the motor vehicle, and the point of accident, marked at MN 9. 34.He further states that the procedure set out in Section 17 of the EACVLCA and Regulation 11 of the Regulations, were exhaustively adhered to, to wit, the weighing of the vehicle; issuance of a weighing report setting out the overload particulars and the fine payable; detention of the motor vehicle if found overloaded, under Section 17(6) of the EACVLCA and Regulations 13 and 14 of the Regulations, 2018; issuance of an objection to the weighing report by way of appeal against the fine levied; overload; detention of the vehicle and charge of storage fees of USD 50 per day after the prescribed period; after the first sixty days the Respondent may issue a notice of sale published in the Gazette; and sixty days after the publication of the notice, the 1st Respondent may apply to the national courts for orders to auction the vehicle and the load. Consequently, he states that, having followed the process, a fine was imposed and the storage charges accrued, which remain unpaid, or a security guarantee for payment issued. 35.In response to the amended petition, he asserts that the detention of the motor vehicle and imposition of the fine, as well as the storage charges, was done in the enforcement of the EACVLCA and cannot be termed unlawful, unreasonable, irrational, unfair, perverse or against the rules of natural justice. He asserts that the EACVLCA provides an avenue to challenge any weight or fine imposed, and as the Petitioner has not made that challenge, it has therefore failed to exhaust the remedies available. Similarly, the 1st Respondent avers that, subject to Section 67 of the Kenya Roads Act, the Petitioner was required to serve its Director General with a mandatory one-month notice outlining its grievances for redress before filing the petition. Furthermore, the 1st Respondent argues that since the Petitioner did not appeal against the weighbridge ticket under Section 17(4), the Petitioner is bound to pay the outstanding fines and charges, and the Petitioner’s claims are misplaced. For these reasons, it is contended that the 1st Respondent did not breach the Petitioner's proprietary rights. 36.As for the Petitioner's claim for vandalisation of the motor vehicle and mechanical interference while in the 1st Respondent’s possession, the 1st Respondent argues that the Petitioner's claim is an afterthought, as at no time was the claim for vandalisation raised; no particulars have been pleaded, or an assessment report filed detailing any vandalisations; and in any event, the vehicle was locked and parked, the parking area is under CCTV surveillance. Further, at the time of release, the motor vehicle only had flat tyres, which were replaced. 37.The 1st Respondent also argues that the Petitioner has not disputed that the provisions of the EACVLCA apply to this case. Further, it has not demonstrated how they were denied an opportunity to be heard through an independent judicial process. Moreover, the 1st Respondent posits that the actions of its officials were in line with the legal requirements and procedures applicable and were not discriminatory; the Petitioner had not demonstrated the nature of discrimination, the party affected by the discrimination, when it was discriminated against, and what loss is suffered as a result of the discrimination. 38.As regards the case for breach of the right to fair administrative action, the 1st Respondent avers that the Petitioner has not demonstrated any infringement of the Fair Administrative Act or any unlawfulness or illegality in the process. It insists that the Petitioner was present and involved in the entire process of stopping, weighing, and detaining the motor vehicle, as well as in the re-weighing, removal, and redistribution of the load, and did not raise any such objection. 39.On the defamation claim, the 1st Respondent argues that the same does not disclose any constitutional violations; rather, it is a purely private civil claim raised in the guise of a constitutional petition. The 1st Respondent further argues that the Petitioner has not demonstrated how the alleged publication infringed its rights or that the existing remedies under the tort of defamation are inadequate. In any event, it is argued, this Court lacks jurisdiction to determine civil tortious claims. 40.On the allegations of discrimination, the 1st Respondent posits that the Petitioner has not substantiated the claims by demonstrating which vehicles were impounded and which were released to lay a basis for discrimination. According to the 1st Respondent, in its claim that the motor vehicle should be released as the other vehicles impounded were released, the Petitioner gives an express admission of its culpability for breach, but seeks to be released without paying the levied fines. 41.Consequently, the 1st Respondent urges that the Petitioner has failed to demonstrate with reasonable precision the manner in which the 1st Respondent has violated its constitutional rights as alleged or to establish a nexus between the 1st Respondent and the said violations. Hence, the 1st Respondent argues that the Petitioner has failed to satisfy the principles settled in Anarita Karimi Njeru Vs Republic (1979) 1 KLR 154, and the petition should be dismissed with costs. D. Viva Voce Evidence 42.On 13th November, 2024, this Court directed that the petition be heard by way of viva voce evidence. Subsequently, the matter was heard on 2nd 0ctober, 2025, and 19th March, 2026, with the Petitioner calling four witnesses, Joseph Muia Daudi (hereinafter PW1), Muli Kikuvi (hereinafter PW2), Joseph Kathae Ndunda (hereinafter PW3) and Samuel Mutua Mutuku (hereinafter PW4). The 1st Respondent called one witness, Dr Engineer Michael Ngala (hereinafter RW1). 43.PW1 in his sworn evidence reiterated the averments in his supporting affidavit, emphasising that: he was the turnboy of the motor vehicle, he is the Petitioner’s employee, and his work involved offloading sand at a designated field near Katumani Junction, a bushy area on a murram road called Masitimani. He stated that on 18th January, 2024, he, together with the driver, were at the field at around 4:00 am, when the Weighbridge vehicles arrived, driven by Ebenezer officers and accompanied by police officers. He testified that the officers requested a bribe of Kshs. 50,000.00/-, and the driver called the Petitioner’s manager to inform him of the events. He stated that when the bribe was not given, the officers pushed the driver to a bed at the back of the driver’s seat and drove the motor vehicle towards the Weighbridge station. He testified that upon reaching the Small World area, the officer driving the motor vehicle caused an accident, but falsely accused the Petitioner’s driver of causing the accident. He stated that the officer continued driving the motor vehicle, and when they reached the weighbridge station, it was weighed, and a fine was imposed. 44.On cross-examination, he confirmed that the motor vehicle was carrying an excess load, but that it was being driven on a murram road. He also averred that he was not involved in the weighing of the load, and confirmed that in the petition filed, the Petitioner raised the issue that the 1st Respondent’s officer had solicited a bribe; and that he was aware the motor vehicle was driven to the weighbridge by a staff of Ebenezer, although he did not know his name. In re-examination, he testified that the motor vehicle was loaded in excess from the river to the field, which field is accessed through a murram road through a thicket. He restated that after the interception, the motor vehicle was driven by an official wearing the Ebenezer Commercial reflector. 45.PW2 testified, restating the averments in his supporting affidavit and relying on the same verbatim. He stated that he was the Petitioner’s motor vehicle driver. He stated that he was driving the motor vehicle on 18th January, 2024, when, at around 4:00 am, at a field at Masitimani near Katumani Junction, police officers and staff from Ebenezer arrived and informed him and the turn boy that they were conducting a routine patrol. Further, they informed them that the motor vehicle was in excess, and an official with an Ebenezer reflector demanded a bribe of Kshs. 50,000.00/-. He testified that afterwards, one of the officials wearing an Ebenezer reflector pushed him to the back of the driver’s seat and drove the motor vehicle towards Athi River. It was his testimony that when they reached the Prima Rosa area, the official caused an accident, called a traffic police officer, but misinformed the officer that he (PW2) was driving the motor vehicle and had caused the accident. He added that he refused to take responsibility for the accident, and the 1st Respondent’s official continued driving to the Athi River Weighbridge, weighed the motor vehicle, and later imposed a fee of Kshs. 46.8 million. 46.In cross-examination, he confirmed that from the river to the field, the motor vehicle had an excess load, but it was driven on a murram road. He also restated that the officers who identified themselves did not weigh the motor vehicle; instead, they asked for a bribe. He testified that he did not report the bribery incident. He also stated that the motor vehicle was involved in an accident, under the control of an official of the 1st Respondent, but he did not report the accident. When pointed to the weighbridge report, he read the details contained therein. He also stated that he did not witness the weighing as he had been confined to a room at the weighbridge station and that he was not present when the motor vehicle was re-weighed before its release. 47.On re-examination, he testified that at the Weighbridge station, the Petitioner was not given a hearing but was only presented with the fine for Kshs. 46.8 million. As for the details on the weighbridge report, he stated that the 1st Respondent’s staff prepared and presented it to him and the Petitioner’s manager, and that he would not confirm its correctness or the legality. He also argued that even if he had not reported the accident, he was at liberty to report the traffic accident and obtain an abstract at any time. 48.PW3 gave his sworn statement and relied on the averments in his supporting affidavit of 8th February, 2024, and the exhibits marked JKN1 to JKN10 as part of his evidence. He reiterated that the motor vehicle was intercepted on an unmarked road. He further testified that the motor vehicle was acquired through an asset financing from Sidian Bank. It was also his testimony that he was not informed of the offence for which the motor vehicle was detained. He also confirmed that he did not report the bribery incident because this petition is still ongoing. 49.On cross-examination, he testified that although he was not present at the scene of interception, he was informed by the Petitioner’s manager what had happened. When pointed to the weighbridge report, he confirmed that as per the weight measurements indicated thereon, a weight of 83,940 kgs would be in excess, as the motor vehicle has a permissible weight of 54,000 kgs. However, he testified that the Petitioner had not been given an opportunity to challenge the weighing process. 50.He also stated he was aware the motor vehicle was reweighed, and his advocate was present during the exercise. It was also his testimony that he was aware of the fine imposed and that the Petitioner had not paid the fees to the 1st Respondent. When questioned about the bribery allegations, he stated that he had been informed that the 1st Respondent's official had made a demand for Kshs. 50,000, but he had not reported to the relevant authorities 51.PW4 testified adopting the averments in his supporting affidavit of 18th February, 2025, as well as annexures number 1 to 4 as his evidence. On re-examination, he stated that he was not present during the impoundment of the motor vehicle. He stated that he and the Petitioner's advocate were present during the reweighing of the motor vehicle, and three lorries were used for redistributing the excess load as per the 1st Respondent’s preconditions for releasing the motor vehicle. He also testified that he had reported the vandalism of the motor vehicle to the 1st Respondent’s officer present during the release of the exercise. 52.In re-examination, he testified that he was in charge of the Petitioner’s logistics. Further, that although he was not at the scene of the interception, he was tracking the motor vehicle and was aware of its whereabouts and it was arrested in a field. He also testified that he was informed of the accident involving the motor vehicle and a pick-up at Green Park, while being driven by the 1st Respondent’s officials. He insisted that he was not given an opportunity to challenge the assessment by the 1st Respondent and that he was not aware whether the fines imposed had been paid or not. 53.RW1 testified for the Respondent and relied on his affidavit filed in response to the petition and in support of the cross-petition and the affidavit in response to the amended petition. Additionally, he testified that when a motor vehicle is suspected of being overloaded, it is weighed either by the 1st Respondent or its contracted agents. He also stated that the interception and impoundment of the motor vehicle on 18th January 2024 was undertaken by Ebenezer Commercial Works Limited, the 1st Respondent's agents. 54.It was his testimony that the 1st Respondent’s patrol team impounded the motor vehicle on Mombasa Road, which forms part of the East African Road Network. Further, upon receiving the information, he instructed that the vehicle be escorted to the weighbridge station for weighing. He also testified that under the EACVLCA, once a vehicle is found to be overloaded, an overload invoice is issued. He stated that where payment is not made, the vehicle is impounded. It was his further testimony that any party disputing the imposed fees has the right to challenge the same either administratively before the 1st Respondent or before a court of law. He confirmed that no investigations had been conducted regarding the allegations of bribery. He stated that no inspection had been conducted to verify the alleged vandalism and that he only became aware of the alleged repairs through the petition. 55.On cross-examination, he stated that the patrol team informed him that the vehicle was impounded on Mombasa Road, near the Small World area, which forms part of the East African Road Regional Trunk Road Network. It was his testimony that a tracking device was installed on the patrol car Registration No. KDG 079K owned by Ebenezer Commercial Limited, and the tracking report proves that the motor vehicle was impounded on Mombasa Road as per log 1999 to log 2011. He stated that when a motor vehicle is impounded on a road that is not part of the regional trunk network, the weight measurements are governed by the Traffic Act. 56.He also confirmed he did not have any evidence linking the tracking report to the motor vehicle the subject of the petition; and that he was not the driver of the patrol motor vehicle, and the driver or the arresting team on 18th January, 2024, had not been brought to court to testify. When questioned about the alleged vandalism of the motor vehicle, he testified that the 1st Respondent had not inspected it before its release to verify the allegations. 57.In re-examination, RW1 restated that the motor vehicle was overloaded and that the Petitioner did not challenge the weighing measurements. He further testified that the Petitioner did not file any report of the alleged vandalism with the 1st Respondent. Further, he stated that EACVLCA and the Regulations 2018, relied upon by the 1st Respondent, had not been declared unconstitutional by any court. He also testified that the Petitioner’s driver was present when the motor vehicle was weighed on 18th January, 2024, and the Petitioner was allowed to verify the load at the reweighing exercise before the release of the motor vehicle. E. Submissions by the Parties 58.The Petitioner filed its submissions dated 24th April, 2026, wherein it submits on five issues. On whether the 1st Respondent’s actions were within lawful statutory jurisdiction, the Petitioner submits that the 1st Respondent derives its mandate from the Kenya Roads Act, the EACVLCA, Regulations, 2018, and the Kenya Roads (Kenya National Highways Authority) Regulations, 2013. Further, that properly construed, this legal framework empowers the 1st Respondent to regulate designated highways, trunk roads, axle-load compliance systems, weighbridge operations and road infrastructure under law. It further contends that the statutes do not create a generalized power to patrol every road in Kenya. 59.Further, the Petitioner submits that for the EACVLCA to be applicable, the motor vehicle must be intercepted along the Regional Trunk Road under Section 3 and First Schedule of the EACVLCA. To this end, it submits that the motor vehicle was not intercepted on a regional trunk road, but along an unmarked, unpaved dirt road branching off Mombasa Road near Katumani Junction in the Konza Technopolis area near Masitimani, which area is not designated as a regional trunk road. As a result, the Petitioner contends that the EACVLCA and Regulations 2018 did not apply to the instances of this petition. It adds that the 1st Respondent bears the obligation to demonstrate that the interception occurred on a road designated under the First Schedule of the EACVLCA to entitle it to lawfully exercise coercive enforcement powers therein, in the absence of which, the purported enforcement action lacks statutory foundation and legitimacy. 60.Furthermore, it submits that the statutory purpose of axle-load legislation is the legitimate preservation of road infrastructure, promotion of safety, fair use of national highways and orderly transport regulation. However, the existence of a legitimate purpose does not authorize illegitimate means. Instead, enforcement must remain connected to designated roads, lawful stations, procedures and ascertainable legal standards. It contends that nothing in the cited enactments authorises or grants the 1st Respondent powers of enforcement on earth roads, quarry paths, feeder diversions or unmarked detours. The Petitioner relies on the decision in Republic vs Kenya National Highways Authority & another [2021] eKLR to urge that where a statutory body acts pursuant to delegated powers affecting citizens’ rights and property, such power must be exercised lawfully, reasonably and within the scope of the parent statute, and decisions tainted by illegality are amenable to judicial review including certiorari. 61.Further, the Petitioner contends that Article 47 of the Constitution demands that administrative action be lawful and reasonable, and lawfulness necessitates the exercise of statutory powers within jurisdiction. Consequently, it submits that a decision made without jurisdiction is not merely flawed, but is void. Likewise, it submits that Article 40 of the Constitution protects property right, and the seizure or detention of commercial vehicles must rest upon demonstrably lawful exercise of authority. 62.On the second issue whether the fine of Kshs. 46,898,643 and the daily storage charges violated Articles 40, 47, 48 and 50 of the Constitution, the Petitioner submits that the 1st Respondent’s officials demanded unlawful gratification and, upon refusal to give the bribe by the Petitioner’s agents, the vehicle was impounded and the purported enforcement started. The Petitioner argues that the vehicle was not merely stopped and processed routinely. Rather, a demand for money preceded the impoundment and the vehicle was hurriedly weighed and the fine imposed. The Petitioner urges that the 1st Respondent's actions through its officials lacked integrity, legality and constitutional propriety. Relying on the Court of Appeal in Suchan Investment Ltd v Ministry of National Heritage & Culture & 3 Others [2016] eKLR and the High Court in Republic v Kenya National Highways Authority & another [2021] eKLR, the Petitioner submits that the 1st Respondent's exercise of statutory powers affecting property rights must remain subject to legality, reasonableness and procedural fairness. 63.Moreover, the Petitioner submits that the 1st Respondent’s actions were contrary to Articles 10 and 73(1) on the national values binding State officers and State organs and that public trust must be exercised in a manner consistent with the Constitution, respectively. It cites Martin Mbatha Mutisya v Kenya National Highways Authority [2017] eKLR to urge that the powers delegated by the people to the 1st Respondent remain subject to constitutional limitations and are not to be exercised in a manner prejudicial to the citizens. In the premises, the Petitioner emphasises that the impoundment and subsequent detention of the subject vehicle were actuated by improper motive, collateral purpose and abuse of statutory power. Further, the decision-making process was thereby tainted by illegality, bad faith and constitutional impropriety. 64.On the unconstitutionality of Regulations 14 and 15 of the Kenya Roads (Kenya National Highways Authority Regulations, 2013) to the extent that they purport to authorize punitive sanctions in the absence of due process, the Petitioner submits that the 1st Respondent imposed a quasi-penal sanction without the procedural safeguards under the Constitution and as a result adversely affected its rights. It is urged that the fine and the storage charges were imposed by the 1st Respondent summarily and arbitrarily. Particularly, no prior notice was served upon the Petitioner identifying the alleged overloading infraction with precision; no particulars were given as to the applicable legal threshold, the axle configuration allegedly breached, the permitted gross vehicle mass, the actual recorded weight, the variance; and no formula or computation matrix was given by which the fine was reached. 65.The Petitioner similarly submits that it was not afforded a hearing or an opportunity to challenge the weighing methodology, contest the figures, request a reweighing, call independent technical evidence, seek representation, or make mitigating representations before the impugned fine was levied. Further, there was no neutral decision-maker separate from the officers who initiated the seizure, no written reasoned decision, no internal review mechanism was given or explained, and the fine levied was disproportionate and arbitrary. 66.Consequently, the Petitioner contends that the 1st Respondent's actions were against the rules of natural justice and were procedurally unfair contrary to Article 47(1) and (2) of the Constitution, which guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. It relies on the decisions in Republic v Kenya National Highways Authority & another [2021] KEHC 7211 (KLR); Pashito Holdings & Another v Ndungu & 2 Others [1997] eKLR; Msagha v Chief Justice & 7 others [2006] 2 KLR 553, to the effect that, where an Applicant is not accorded an opportunity to be heard before an adverse decision, such action is procedurally unfair and constitutionally infirm. 67.Similarly, it submits that the 1st Respondent’s actions offended Article 50(1) of the Constitution, which guarantees every person the right to have any dispute that can be resolved by application of law decided in a fair and public hearing before an independent and impartial tribunal or body. It urges that the 1st Respondent’s officials were the accuser, investigator, prosecutor, judge and executioner, contrary to Articles 40, 47 and 50 of the Constitution. It relies on the decisions in Margaret Miano vs Kenya National Highways Authority [2015] eKLR; Republic vs Kenya National Highways Authority & another [2021] eKLR; Martin Mbatha Mutisya vs Kenya National Highways Authority [2017] eKLR, to support the submission that statutory bodies exercising coercive regulatory powers must remain within the bounds of legality, rationality and procedural fairness, and that courts will quash administrative decisions tainted by illegality or abuse of power, and that the 1st Respondent’s enforcement functions remain subject to constitutional scrutiny where proprietary rights and administrative fairness are implicated. 68.On the continued detention of the motor vehicle. The Petitioner submits that the detention of the motor vehicle despite the court's unambiguous orders was unlawful. To this end, it contends that the 1st Respondent officers' actions and omissions occasioned aggravated losses as the commercial asset remained impounded; it occasioned loss of contracts, interruption of supply commitments, missed financial obligations, disruption of business scheduling, loss of commercial goodwill, and deterioration of the motor vehicle. Accordingly, the Petitioner submits that the 1st Respondent’s disobedience of the court orders of 21st February, 2024, was in violation of the rule of law, and exacerbated its financial and proprietary losses, warranting the award of compensatory damages, constitutional damages and costs. 69.It further submits that the motor vehicle was vandalised and damaged while in the 1st Respondent’s custody. It urges that it was the duty of the 1st Respondent to ensure that the motor vehicle was secured while at its yard. It cites Kingbros Kenya Limited & another v Nairobi City County Government & 2 others [2025] KEHC 19211 (KLR); and Bluaxis Construction Limited v Kenya National Highways Authority [2024] KEHC 9693 (KLR) where the High Court directed that once a public authority impounded a motor vehicle and kept it in its own yard, it assumed a duty analogous to that of a bailee to safeguard the vehicle from destruction, damage or interference. It urges the Court to grant the special damages of Kshs. 1,500,000.00/- as pleaded, together with further general and constitutional damages as compensation for the continuing prejudice occasioned. 70.On the loss of user occasioned by the unlawful detention, the Petitioner contends that the 1st Respondent’s detention interfered with the Petitioner’s trade operations and established income stream derived from ongoing contractual engagements, depriving it of its daily income. It argues that unlawful detention of the motor vehicle occasioned interruption of contractual obligations with third-party clients, loss of expected revenue from daily operations, erosion of goodwill, and disruption of business continuity in a competitive commercial sector, which losses are not remote or speculative but flow directly and foreseeably from the deprivation of use of a profit-earning asset. The Petitioner urges the Court to grant compensation for loss of use of a commercial vehicle. It relies on the decisions by the Court of Appeal in Samuel Kariuki Nyangoti vs Johaan Distelberger [2017] eKLR; the High Court in Nyaga vs Attorney General (On Behalf of the Ministry of Environment, Water and Natural Resources) [2023] KEHC 26484 (KLR); Misa M Auctioneers & another vs Kariuki [2024] KEHC 11178 (KLR); andBajaber Stores Limited vs Awale Transporters Limited [2022] KEHC 17087 (KLR) to support its claim for compensation of its daily estimates for reasons of the unlawful immobilization of its motor vehicle engaged in commercial activities 71.The 1st Respondent filed its submissions dated 6th June 2026 substantially reiterating the averments in the cross petition, affidavits in response to the petition and in support of the cross petition and the viva voce evidence. Moreover, the 1st Respondent submits that it was uncontroverted that the motor vehicle was overloaded by 29,940 kgs on the gross vehicle weight; the motor vehicle was reweighed in the presence of the Petitioner’s representatives; the Petitioner’s witness admitted the motor vehicle was overloaded; the motor vehicle was detained from 18th January, 2024, to 26th March, 2024; the Petitioner had not paid the overload penalties; the Petitioner did not adduce any evidence or report to support the alleged bribery, the allegations of the accident by the 1st Respondent, or the alleged vandalizism of the motor vehicle by the 1st Respondent; and the Petitioner’s witnesses did not identify the specific officer who asked for the bribe. 72.On whether the Petitioners' property rights were violated, the 1st Respondent submits that the motor vehicle was intercepted in Athi River along Mombasa Road, which is a Regional Trunk Road, and therefore, the EACVLCA and the Regulations, 2018 were applicable. Furthermore, it posits that upon weighing, which fact it urges is undisputed and admitted by the Petitioner’s witness and that the weighbridge ticket issued is not disputed, the motor vehicle was found to be overloaded. That the motor vehicle was impounded in exercise of the 1st Respondent’s mandate under Sections 22(1)(c) of the Kenya Roads Act, Sections 6(1) & (9), 7, 8(1) and 17 of the EACVLCA. 73.The 1st Respondent insists that it cannot be faulted as the procedure provided under Section 17 of the EACVLCA was strictly adhered to and a fine charged in accordance with EACVLCA and Regulations, 2018. It relies on Kenya Transport Association & 3 Others vs Attorney General & Another [2012] eKLR to urge that the weight limits are necessary to safeguard the roads from deterioration from heavy loads. It also cites Thuo vs Kenya National Highways Authority & 3 others (Constitutional Petition E251 of 2022) [2025] КЕНС 48 (KLR) to submit that in exercise of its legal mandate, it has the authority to detain and impound overloaded motor vehicles upon weighing and finding that they exceed the recommended tare weight. Further, that it does not infringe the right to property by lawfully discharging its mandate. 74.As regards whether the Petitioner was accorded the right to a fair hearing, the 1st Respondent submits that the motor vehicle was weighed and reweighed in the presence of the Petitioner’s representative and no objection was lodged. Further, in line with the safeguard mechanism under Article 47 of the Constitution, the EACVLCA at Section 17(3) and Regulation 19 of the Kenya Roads (Kenya National Highways Authority) Regulations, 2013, establishes a mechanism by which any person aggrieved may seek an appeal concerning overload fees or upon being aggrieved by the decision of an authorised officer of the 1st Respondent. 75.Consequently, the 1st Respondent submits that the Petitioner was afforded an opportunity to challenge the weighbridge findings or the actions of the 1st Respondent’s official, but failed to exhaust the remedies, depriving this Court of the jurisdiction to entertain this dispute. It relies on Thuo vs Kenya National Highways Authority (Supra); and ziz vs Kenya National Highways Authority & another (Petition E113 of 2021) КЕНС 17758 (KLR) (Constitutional and Human Rights). 76.As for allegations of bribery and vandalism, the 1st Respondent submits that the allegations that the 1st Respondent’s officers demanded a bribe of Kshs. 50,000.00/- or vandalised the motor vehicle impute criminal conduct on the part of the officers of the 1st Respondent, hence must be supported by cogent, credible and admissible evidence. It contends that the Petitioner has not provided any evidence in line with Sections 107, 108 and 109 of the Evidence Act, which require that the burden of proving any fact rests upon the person who alleges its existence. It relies on the Court of Appeal in Karugi & another vs Kabiya & 3 others [1983] KECA 38 (KLR). 77.It adds that the Petitioner’s or its witnesses' failure to report the alleged solicitation of a bride or vandalism of the motor vehicle to the relevant authorities or the 1st Respondent undermines the credibility of the allegations. Therefore, the allegations of bribery and vandalism were not proved to the requisite standard and therefore cannot form a basis for any finding of liability against the 1st Respondent. In any event, the 1st Respondent contends that any damage to the motor vehicle was caused by the accident caused by the Petitioner’s driver while attempting to evade the interception. 78.On whether the 1st Respondent had the authority to impose the fine, it submits that it was not contested that the motor vehicle was overloaded and the weighbridge ticket was not controverted. For these reasons, it contends that the fine and storage charges are prescribed in statute. Moreover, the same were legally imposed under Section 6(1), (2), and (3), which provide that when a vehicle is determined to be overloaded, the transporter shall be liable and shall pay the overloading fees at the weighbridge station; and Section 17(7) which provides that a detained vehicle shall be held under the transporter's responsibility and payment of charges and costs for storage. 79.Consequently, it is the 1st Respondent’s case that since the Petitioner did not contest that its motor vehicle was overloaded, there was justifiable cause for the detainment of the said motor vehicle and the imposition of the fine and storage charges. It relies on Kiarie & another v Kenya National Highway Authority (Petition E005 of 2024) [2024] КЕНС 5576 (KLR); Bluaxis Construction Limited v Kenya National Highways Authority [2024] KEHC 9693 (KLR); and John Kipkoech Maritim t/a Jolly Super Enterprises Limited v Kenya National Highways Authority & 7 others [2022] КЕНС 3366 (KLR). 80.On the constitutionality of Regulations 14 and 15 of the Kenya Roads (Kenya National Highways Authority) Regulations 2013, the 1st Respondent maintains that the Petitioner has neither demonstrated the application of, or reliance upon the said Regulations by the 1st Respondent, nor particularised violations arising therefrom. It submits that the provisions of the Kenya Roads (Kenya National Highways) Overload Regulations, 2013, were not invoked or applied in the assessment and imposition of fees challenged by the Petitioner. It contends that the fees and storage charges were imposed pursuant to the provisions of the East African Community Vehicle Load Control Act (EACVLA), the subject motor vehicle having been found overloaded while operating on a Regional Trunk Road Network. It submits that the Petitioner's reliance on the said Regulations is therefore misplaced and irrelevant to the issues before this Court. 81.On whether the Petitioner is entitled to the reliefs, the 1st Respondent submits in the negative. It restates their case, urging that it was admitted that the motor vehicle was overloaded; allegations of bribery and vandalism were not proved, and the compensation claim cannot stand; the overloading fee was lawfully levied in accordance with the provisions of the EACVLCA; the Petitioner failed to challenge the overloading fee through the available dispute resolution mechanisms; the Petitioner did not pay the overloading fees on a without prejudice basis as contemplated under Section 17(4) of the EALVLC Act; the petition falls short of the evidentiary threshold required under Sections 107 and 109 of the Evidence Act and ought to be dismissed; and the Petitioner neither pleaded nor proved the claim for loss of business. It cites David Irungu Mwangi v Attorney General [2018] КЕНС 4850 (KLR) to urge that loss of business is akin to special damages and a party must prove that it has suffered actual and not perceived loss, and the compensation is to return the party to as nearly the same level he was before as possible. Consequently, it urges the Court to dismiss the petition. 82.As to whether the cross-petition is merited, it is the 1st Respondent’s submission that it has adduced evidence that the motor vehicle was overloaded, including admissions by the Petitioner’s witnesses, and therefore the fine levied under Section 11 and the storage charges under Section 17(6) of the EACVLCA remain payable. It argues that it has established that the weighbridge ticket was lawfully issued to the Petitioner, who has not complied with the conditions therein, including paying the outstanding fine of Kshs. 46,898,643/- and the storage costs of USD 3400. For these reasons, it is the 1st Respondent’s submission that the cross-petition is merited and urges the Court to allow it. F. Analysis for Determination 83.Arising from the petition and cross-petition, the responses thereto, viva voce evidence, as well as the written submissions, the following issues crystalize for determination:a.Whether this Court has jurisdiction to hear and determine the petition;b.Whether the Petitioner’s constitutional rights were violated;c.Whether the cross-petition is meritorious; andd.What are the appropriate reliefs to issue, including on costs? Whether this Court has the jurisdiction to determine the petition. 84.The challenge to this Court’s jurisdiction is double-limbed. First, the 1st Respondent argues that the petition fails the precision test. It contends that the petition fails to clearly set out the Articles of the Constitution that are alleged to have been infringed or threatened, to demonstrate the manner in which the violation was occasioned, or the Petitioner’s nexus with the alleged violations. 85.Secondly, the 1st Respondent argues that the Petitioner failed to exhaust the dispute resolution mechanism under Section 17(1)(4) of the East African Community Vehicle Load Control Act (EACVLC) as read together with East African Community Vehicle Load Control (Enforcement Measures) Regulations 2018 (Regulations, 2018), which establishes a mechanism by which any person aggrieved may challenge the decision of the 1st Respondent or its authorised officers, thus depriving this Court of the jurisdiction to entertain this dispute. 86.On the precision test, it is trite law that it is not enough for a party to merely cite breach of constitutional provisions and fasten some facts onto them. Instead, the particulars of the violation must set out the grievances with sufficient details to enable the Respondent to reply. This was the Supreme Court holding in Communications Commission of Kenya vs. Royal Media Services Ltd & 5 Others (2014) eKLR, which upheld the decision in Anarita Karimi Njeru v R (1979) KLR by stating:“… Although Article 22 (1) of the Constitution gives every person the right to institute proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the right said to be infringed as well as the basis of his or her grievance. ….. the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. …” 87.Applying the foregoing test, I find that some of the allegations for breach of constitutional rights, as framed by the Petitioner, satisfy the requisite threshold. The petition challenges the constitutionality of the 1st Respondent's actions and omissions in the exercise of its statutory powers, and specifically identifies the actions complained of. Moreover, it clearly sets out the nature of the Petitioner’s grievances, the manner in which it has allegedly been aggrieved, and how the impugned actions and omissions of the 1st Respondent have infringed, violated, or threatened the Constitution. The Petitioner has further sufficiently established and demonstrated its nexus to the 1st Respondent’s actions and the alleged constitutional breaches. In addition, the Petitioner has adduced affidavit evidence and advanced arguments in support of its claim that the 1st Respondent violated its specified rights protected under the Constitution. 88.However, I find that some of the issues alleged in the petition fails the precision test in three instances. First, is the challenge to the constitutionality of Regulations 14 and 15 of the Kenya Roads (Kenya National Highways Authority) Regulations 2013. This is so because the Petitioner argues that the Regulations are unconstitutional in that they purport to authorise punitive sanctions without due process. The 1st Respondent, on the other hand, maintains that the Petitioner has neither demonstrated the application or reliance on the said Regulations, nor particularised violations arising therefrom. It submits that the provisions of the Kenya Roads (Kenya National Highways) Overload Regulations, 2013, were not invoked in the assessment and imposition of the impugned fines or storage charges. It contends that the fees and storage charges were imposed under the EACVLA and Regulations, 2018. 89.Although the Petitioner has challenged the constitutionality of Regulations 14 and 15 of the Kenya Roads (Kenya National Highways Authority) Regulations 2013, it has directed all its factual arguments in support thereof against a completely different provision of the law, to wit, Section 17 of the EAVLCA and the Regulations, 2018. By relying on arguments and evidence on the enforcement of a different provision of the law (that is EACVLCA and Regulations, 2018) to support its claim for unconstitutionality of Regulations 14 and 15 of the Kenya Roads (Kenya National Highways Authority) Regulations 2013, the Petitioner has failed to show a direct link between the challenged Regulations and the alleged constitutional violations. I therefore find that the challenge to the unconstitutionality of Regulations 14 and 15 of the Kenya Roads (Kenya National Highways Authority) Regulations 2013 is vague, inelegantly drafted and lacking in exactness, in violation of the precision rule settled in Anarita Karimi Njeru [supra]. 90.Second, on the claim of defamation, the Petitioner pleads that the publication by the 1st Respondent in the Daily Nation was defamatory and injurious to its business. The 1st Respondent argues that the allegation does not disclose any constitutional violations; rather, it is a purely private civil claim raised in the guise of a constitutional petition. I agree with the 1st Respondent that a defamation claim is a civil claim that cannot be determined in a constitutional petition and therefore is not for determination by the Court sitting as a constitutional court. The Petitioner has not demonstrated that the existing remedies under the tort of defamation are inadequate. 91.Third, the Petitioner also made allegations of solicitation for bribes by the 1st Respondent’s official and vandalism of the motor vehicle while in the custody of the 1st Respondent. However, it is admitted that the Petitioner did not report the said bribery or vandalism allegations to the relevant agencies. Again, I agree with 1st Respondent that bribery and vandalism allegations are criminal in nature and cannot be determined by this Court in a Constitutional Petition. 92.As pertains to the second limb upon which this Court’s jurisdiction is challenged, being the failure by the Petitioner to exhaust the available dispute resolution mechanism, the relevant provisions provide as follows. Section 17(1) and (4) of the EACVLCA reads:1.When an authorized officer determines that a vehicle is carrying a load in excess of the legal load limit under this Act, he or she shall issue a weighing report setting out the overload particulars and the amount of overload fees payable…4.Where the fact of overloading is disputed by the transporter, the authorized officer weighing the vehicle shall indicate such dispute in the weighing report, and a copy of the disputed report shall be issued to the transporter who may—a.pay the requisite overloading fees on a without prejudice basis to secure the release of the vehicle, make such necessary adjustment on the load as may be directed by the authorized officer and lodge an appeal against the fees as provided for by regulations made under this Act; orb.appeal against the fees, using regulations made under this Act, during which period the vehicle will remain detained at such designated place at the cost of the transporter.(Emphasis mine) 93.However, the only appellate mechanism under the Regulations, 2018 is provided under Regulation 17, applying only to a party disputing a road damage assessment report, as follows:1.A transporter who disputes a road assessment report shall within seven days of receipt of the report notify the national roads authority, stating reasons for the dispute.2.Upon receipt of notification under sub-regulation (1) the national roads authority shall, in consultation with the transporter, request the chairperson of the national professional body of engineers to appoint an independent assessor within fourteen days of notification from the transporter.3.The independent assessor shall review the damage assessment report and may receive representations from the national roads authority and the transporter.4.The independent assessor shall issue a final assessment report within thirty days of his or her appointment.5.A transporter who disputes a road damage assessment report shall not be liable for payment for road damage costs due until the independent assessor has issued his or her final report.6.The report of the independent assessor shall be final and no appeal shall be made on the report unless on the grounds of manifest error or fraud on the part of the independent assessor.7.A person who is dissatisfied with the report of an independent assessor in sub-regulation (5) may appeal in accordance with the national laws of the respective Partner State. (Emphasis mine) 94.From a reading of the above provisions, Regulation 17 provides an appellate mechanism in circumstances where a motor vehicle has been impounded, and its owner disputes a road damage assessment report. However, nowhere in the Regulations, 2018 is a provision for an appellate procedure or dispute resolution mechanism in respect of motor vehicles impounded for being overloaded. Accordingly, it cannot be contended that the Petitioner acted prematurely or failed to exhaust available remedies by approaching this Court for intervention in the dispute. 95.Besides, the High Court (Achode (as she then was), Nyamweya (as she then was), & Ogola, JJ) in William Odhiambo Ramogi & 3 other vs Attorney General & 6 others; Muslims for Human Rights and 2 others (interested parties) (2020) eKLR determined that:“In the instance case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere ‘bootstraps’ or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.”(Emphasis mine) 96.This jurisprudence was affirmed by the Supreme Court in Nicholus vs Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) [2023] KESC 113 (KLR) in the following words:-“We agree with the above reasoning and find that the availability of an alternative remedy does not necessarily bar an individual from seeking constitutional relief. This is because the act of seeking constitutional relief is contingent upon the adequacy of an existing alternative means of redress. If the alternative remedy is deemed inadequate in addressing the issue at hand, then the court is not restrained from providing constitutional relief.” (Emphasis mine) 97.I am cognizant of the fact that the 1st Respondent did not invoke or apply the provisions of the Kenya Roads (Kenya National Highways Authority) Regulations, 2013, in impounding and detaining the Petitioner’s motor vehicle or levying the impugned fines or storage charges. For these reasons, any dispute resolution mechanism under the Kenya Roads (Kenya National Highways Authority) Regulations, 2013 would not apply to the Petitioner. Any dispute resolution mechanism thereunder is inapplicable to the circumstances of the present petition and, therefore, was unavailable to the Petitioner. 98.Consequently, guided by the cited provisions and jurisprudence from this Court and the Apex Court, I find that the doctrine of exhaustion of remedies is not applicable in this case and in any event would not bar this Court from exercising its jurisdiction under Article 165(3)(b) to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened. 99.The upshot is that since a single constitutional issue is sufficient to invoke this Court’s constitutional mandate, I find that this petition is properly before this Court. Whether the Petitioner’s constitutional rights were violated 100.In addressing this issue, I consider it necessary to begin by restating the jurisdiction of the High Court to hear and determine petitions alleging violations, infringements, or threats to constitutional rights. Article 23(1) of the Constitution 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 101.Similarly, Article 165(3)(b) of the Constitution vests the High Court with jurisdiction to determine questions relating to the denial, violation, infringement, or threat to rights and fundamental freedoms as follows:(3)Subject to clause (5), the High Court shall have—…(b)jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened. 102.In the exercise of the foregoing jurisdiction, and for purposes of determining this issue, the following sub-issues arise for consideration, namely: whether the Petitioner’s right to property under Article 40 of the Constitution was infringed; whether its right to fair administrative action under Article 47 of the Constitution was breached; whether the Petitioners right against discrimination under Article 27 was violated; and whether it right to a fair hearing under Article 50 was violated. Right to property 103.The Petitioner’s principal contention is that its motor vehicle was intercepted in a field accessed through an unmarked and unpaved dirt road branching off Mombasa Road at the Katumani Junction area near Konza Technopolis. The Petitioner asserts that the said location is not designated under the First Schedule to the EACVLCA and therefore falls outside the statutory ambit and application of the EACVLCA. Consequently, the Petitioner contends that the officials of the 1st Respondent acted unlawfully in impounding the motor vehicle, and levying an overloading fee of Kshs 46,898,643.00 and storage charges amounting to USD 3,400.00 under the EACVLCA and the Regulations, 2018. 104.Furthermore, it urges that continued detention of the motor vehicle, together with its cargo, was unlawful and prejudicial to its business operations, resulting in financial losses and exposing it to the risk of enforcement action by its financier. It is the Petitioner’s case that these actions and their attendant consequences constituted a violation of its right to property under Article 40 of the Constitution. 105.The 1st Respondent, on its part, contends that the motor vehicle was intercepted at Small World, Lukenya, Athi River, along Mombasa Road on the Nairobi–Mombasa Highway, which forms part of the Northern Corridor of the Regional Trunk Road as defined under Section 3 and the First Schedule to the EACVLCA. On that basis, the 1st Respondent maintains that the provisions of the EACVLCA and the Regulations, 2018 were fully applicable to the circumstances of this case. Consequently, it argues that the detention of the motor vehicle and the imposition of the impugned fees were lawful and did not infringe the Petitioner’s right to property. 106.To determine whether the Petitioner’s 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). 107.The place and protection of the right to property under the Constitution have been the subject of judicial consideration. For instance, in Isaac Gathungu Wanjohi & another vs AG & 6 others [2012] KEHC 5200 (KLR), the High Court held that:“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.” 108.In Dina Management Ltd vs County Government of Mombasa & 5 others [2023] KESC 30(KLR), the Supreme Court stated that Article 40 of the Constitution entitles every person to the right to property, subject to the limitations set out therein. This right can be limited in line with the requirements of Article 24 of the Constitution. It follows, therefore, that protection against arbitrary deprivation, interference with, or infringement of the right to property is a constitutional imperative and an essential safeguard. 109.Having set out the constitutional provisions relevant to this issue, the question whether the Petitioner’s right to property was infringed depends, in large measure, on whether the 1st Respondent lawfully invoked and applied the provisions of the EACVLCA and the Regulations, 2018. The resolution of this question requires an examination of the scope and applicability of the statutory framework relied upon by the 1st Respondent and disputed by the Petitioner. 110.In this regard, Section 3 of the EACVLCA provides as follows:This Act shall apply to the implementation of vehicle load control along the Regional Trunk Road Network set out in the First Schedule. 111.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. 112.Therefore, for the EACVLCA and its Regulations to be applicable, the motor vehicle must have been intercepted somewhere on the Northern Corridor Network or its links set out above. PW2 testified that on the night of 18th January, 2024, he had driven the motor vehicle, loaded it with sand from the river, and was parked at an open field at Masitimani. That at approximately 4:00 am, the 1st Respondent’s officers or their agents impounded the motor vehicle on allegations of overloading. PW1’s testimony mirrors PW2’s testimony. In contrast, RW1 admitted that he was not present when the motor vehicle was intercepted but was informed of the interception and impoundment. Both parties’ witnesses have relied on competing tracking reports to support their respective contradictory positions. The Petitioner relied on the GPS tracking report marked SMM-01, while RW1 relied on the tracking report marked as MN 10. 113.Before evaluating the rival testimonies of the parties’ witnesses and the competing documentary evidence, it is necessary to determine the probative value of the testimony of PW1, PW2 and RW1. From the record, it is not in dispute that RW1 was not present at the scene at the time of the interception. RW1 further conceded this fact during cross-examination. His account of the events, including the alleged place of interception of the motor vehicle, is therefore based entirely on information relayed to him by other officers of the 1st Respondent. 114.In that regard, the testimony of RW1 for the 1st Respondent is indirect and, to that extent, constitutes hearsay evidence. 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.” 115.In the circumstances, the probative value of RW1’s testimony, being hearsay in nature, is necessarily diminished, particularly in light of the contradictory direct evidence tendered by PW1 and PW2. 116.That aside, the Petitioner has relied on the tracking report SMM-01, placing the motor vehicle at the Konza Area at 4:00 am, corroborating the testimony of PW1 and PW2. Additionally, with reference to the 1st Respondent’s report MN10, tracking the trip of the patrol car, which the 1st Respondent has admitted accompanied the motor vehicle from its interception to the Athi River Weighbridge Station, it is evident that the patrol car was also at the Konza Area from 03:52 am to 04:25 am, under log entries numbers 1970 to 1981. The Patrol car, according to the tracking report relied on by the 1st Respondent, was on Mombasa Road from 5:33 am to 11:17 am. 117.On the strength of this evidence, I find that the motor vehicle was intercepted at Masitimani area, off Mombasa Road at the Katumani Junction near Konza Technopolis. The said Masitimani area does not form part of the Regional Trunk Road Network as set out in the First Schedule to the EACVLCA. Accordingly, the EACVLCA and the Regulations, 2018 did not apply to the circumstances of this case. 118.Nonetheless, by subjecting the Petitioner’s motor vehicle to the application of the EACVLCA and misrepresenting that the interception occurred on Mombasa Road, with the intention of wrongfully invoking the provisions of the EACVLCA and its Regulations, 2018 and by further imposing the impugned fines and charges under the said statutory framework, the 1st Respondent’s officials, and by extension the Respondents, infringed the Petitioner’s right to property. Right to fair Administrative Action 119.It is the Petitioner’s case that the 1st Respondent’s officials’ actions were against the unreasonableness principle, contrary to the rules of natural justice. Further, the impoundment of the motor vehicle and the imposition of the impugned fines were without due process, contrary to Article 47 of the Constitution. The 1st Respondent contends that the detention of the motor vehicle and imposition of the fine and the storage charges were in the enforcement of the EACVLCA and cannot be termed unlawful. It also asserts that the Petitioner has not demonstrated any unlawfulness or illegality in the process. It insists that the Petitioner was present and involved in the entire process of stopping, weighing, and detaining the motor vehicle, as well as in the re-weighing, removal, and redistribution of the load, but did not raise any objection 120.The Constitution mandates that every person has the right to administrative action that is lawful, reasonable, and procedurally fair. Where an administrative action is likely to adversely affect a person’s rights or fundamental freedoms, such a person is entitled to prior and adequate notice of the intended action, an opportunity to be heard, and written reasons for the decision. Article 47 of the Constitution 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. 121.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. 122.Under Article 47 (2) of the Constitution, as read with Section 4(2)(d) of the Fair Administrative Actions Act, an administrative body must give reasons for an administrative decision as of right, particularly where a right or fundamental freedom has been or is likely to be adversely. Also, Section 6 (1) as read with Section 6 (2) (a) of the Act stipulates that every person materially or adversely affected by any administrative action has a right to be supplied with such information as may be necessary, and such information shall include reasons for which the action was taken and any relevant documents relating to the matter. 123.These provisions encompass a statutory obligation upon decision-makers to give written reasons for their decisions. I agree with the Petitioner 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 fine was arrived at. As it was underscored in Makori vs Kenya National Highways Authority [2025] KEHC 4443 (KLR), the 1st Respondent has a duty to provide a clear and adequate explanation to an affected party before levying an overload charge. 124.Similarly, subject to Section 4(3)(a) to (g), an administrator has the duty to give adequate notice of the nature of the administrative action; an opportunity to be heard and give representations; right of review or internal appeal; notice of legal representation; right to cross-examine; and information, materials and evidence relied upon in making the decision. 125.From the record and the evidence placed before the Court, it has been established that officials of the 1st Respondent took control of the motor vehicle, drove it to the weighbridge station, and proceeded to weigh it. In so doing, the 1st Respondent effectively denied the Petitioner the opportunity to observe the process, raise any objections, verify the accuracy of the procedure, or challenge the resultant findings. Such conduct deprived the Petitioner of a meaningful opportunity to participate in a process whose outcome adversely affects its rights and interests. 126.Additionally, the 1st Respondent failed to accord the Petitioner the procedural safeguards required by law. In particular, the Petitioner was not given adequate notice of the nature and reasons for the intended administrative action, nor was it afforded an opportunity to be heard or to make representations before the decision to detain and impose the fine under the EACVLCA. Further, the Petitioner was not informed of any right to review or internal appeal. The record also does not demonstrate that the Petitioner was notified of its right to legal representation, allowed to cross-examine adverse witnesses, or supplied with the information, materials, and evidence relied upon by the 1st Respondent in reaching its decision. The 1st Respondent urges that it gave the Petitioner a weighbridge report, and that it failed to raise any objection. However, under Section 17(1) of the EACVLCA, a weighing report sets out the overload particulars and the amount of overload fees payable. It cannot, therefore, be said that it met the requirements under Section 4 of the FAA Act. 127.Accordingly, the administrative impropriety in the present case lies not only in the decision to inspect the motor vehicle for overloading, to conduct a weighing exercise, or to impose the prescribed fees under EACVLCA. Rather, it also lies in the manner in which the interception, inspection, and weighing were undertaken. This lack of adherence to Article 47 and Section 4 of the Fair Administrative Action Act undermined the transparency, procedural fairness, and credibility of the enforcement process. In light of the foregoing, I find that this procedural failure was in breach of the Petitioner’s right to fair administrative action. Right to fair hearing 128.Flowing from the above sub-issue, Section 4(4) of the Fair Administrative Action dictates that:(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. 129.Pursuant to the above provision, read together with Articles 48 and 50 of the Constitution, the 1st Respondent had a duty to accord the Petitioner a hearing and an opportunity to cross-examine any witness giving adverse evidence against it. By impounding, detaining and imposing a fine without giving the Petitioner a chance to be heard, the 1st Respondent breached the 1st Petitioner’s right to be heard. It is not enough that the 1st Respondent urged this Court that Section 17 of the EACVLCA or Regulations, 2018 does not envisage a judicial process. Actions under these provisions are administrative in nature and are subject to Section 4(4) of the FAA Act as read with Articles 48 and 50 of the Constitution. Equality and freedom from discrimination 130.The Petitioner urges that by pardoning and releasing impounded vehicles belonging to other persons but failing to release the Petitioner’s motor vehicle, the 1st Respondent directly discriminated against the Petitioner contrary to Article 27 of the Constitution. In opposition, the 1st Respondent argues that the Petitioner has not substantiated the claims by demonstrating which vehicles were impounded and which were released to lay a basis for discrimination. 131.Article 27 (4) and (5) provide that:The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4). 132.The Court of Appeal in Dida vs Debate Media Ltd & another (Civil Appeal 238 of 2017) [2018] KECA 642 (KLR) quoted with approval the Supreme Court of India in the case of Kedar Nath v State of WB (1953) SCR 835 (843) that:“Mere differentia or inequality of treatment does not per se amount to discrimination within the inhibition of the equal protection clause. To attract the operation of the clause it is necessary to show that the selection or differentiation is unreasonable or arbitrary; that it does not rest on any rational basis having regard to the object which the legislation has in view.” 133.The Petitioner has not shown that there was selection or differentiation by the 1st Respondent that was unreasonable or arbitrary, or that did not rest on any rational basis. The Petitioner has alleged discrimination but failed to prove that it was discriminated against. I consequently find that the 1st Respondent did not violate Article 27 of the Constitution. Whether the cross-petition is meritorious. 134.Having determined that the 1st Respondent violated the Petitioners' right to property under Article 40, the right to fair administrative action under Article 47, and the right to fair hearing under Article 50, the consequent finding under this issue is that the 1st Respondent’s cross-petition is unmeritorious. What are the appropriate orders to issue, including on costs? 135.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 rights;b.an injunction;c.a conservatory order;d.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 compensation; andf.an order of judicial review. 136.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. 137.As regards the Petitioner’s claim for special damages of Kshs. 1,500,000.00/- being the alleged cost of repairs to the motor vehicle, and further claim for loss of use, this Court declines to determine the same. To do so would be to exceed the scope of its mandate in these constitutional proceedings. The claim relates to material damage to property or loss of use and raises issues that are more appropriately determined in ordinary civil proceedings upon satisfaction of the requisite proof. Accordingly, the Petitioner remains at liberty to pursue the claim before a court of competent civil jurisdiction. 138.On general damages, the Court of Appeal in Peter Ndegwa Kiai t/a Pema Wines & Spirits vs Attorney General & 2 Others (Civil Appeal 243 of 2017) [2021] KECA 328 (KLR) (17 December 2021) (Judgment) stated:“…that an award of general damages in constitutional petitions is discretionary and will depend on the circumstances of each case ...” 139.When considering compensation for constitutional violations, in Export Processing Zone Authority & 10 others vs National Environment Management Authority & 3 others [2014] KESC 75 (KLR), the Supreme Court guided courts to apply a broader approach to assessment where fundamental rights have been violated. Courts were directed to consider 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. 140.Guided by the above law, I award the Petitioner damages of Kshs. 500,000.00/- as compensation for breach of their right to property, breach of the rights to fair administrative action and to a fair hearing. 141.On costs, guided by the 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 1st Respondent shall bear the costs in this petition. G. Disposition 142.Consequently, guided by my findings above, I make the following orders:a.The Petitioner’s petition dated 8th February, 2024, and amended on 18th February, 2025, is hereby partially allowed;b.The 1st Respondent’s cross-petition dated 29th May, 2024, is hereby dismissed;c.A declaration that the 1st Petitioner’s fundamental rights and freedoms as enshrined under Articles 40, 47 and 50 of the Constitution have been contravened and infringed upon by the 1st Respondent do hereby issue;d.An order of certiorari quashing the decision made by the 1st Respondent on 18th January, 2024, imposing a fine of Kshs. 46,898,643/- and storage charges of USD 3,400.00 do herby issue;e.The 1st Respondent shall pay to the Petitioner compensatory damages assessed at Kshs. 500,000.00/-(five hundred thousand only); andf.The 1st Respondent shall bear the costs. 143.Orders accordingly. DELIVERED, DATED AND SIGNED VIRTUALLY THIS 29TH DAY OF JUNE, 2026RHODA RUTTOJUDGECourt Assistant: Wabwire/SelinaMr. Muganda for the RespondentMr. Onyango & Mr. Orumbi for the Petitioner