KeNHA loses power to fine overloaded truck owners

The Kenya National Highways Authority (KeNHA) has lost the power to punish transporters driving overloaded vehicles after the High Court quashed two legal clauses that prescribe punishment for the offence.


Justice Pauline Nyamweya declared Sections 14 and 15 of the KeNHA Regulations null and void, arguing that they were in conflict with the Traffic Act, which requires drivers of overloaded vehicles to be presented before a court of law and put on their defence.

The judge made the decision in a case in which a transporter, Disaranio Limited, had sued KeNHA for impounding one of its vehicles and imposing a Sh306,000 fine without allowing the firm to defend itself.

Justice Nyamweya also scrapped the Sh306,000 fine KeNHA had imposed on Disaranio and ordered the agency to release the impounded vehicle at the centre of the dispute.

The court found that the two regulations were in breach of Articles 40 (right to property), 47 (right to fair administrative action, 50 (right to a fair hearing) and 159 (1) (Judiciary’s authority to hear and determine cases) of the Constitution.

“It is hereby declared that regulations 14 and 15 of the Kenya Roads KeNHA Regulations, 2013 contravene Articles 40, 47, 50 and 159(1) of the Constitution of Kenya and are hereby found to be unconstitutional and are declared null and void.”

The judgment also declared Regulation 15(5) of the Kenya Roads KeNHA Regulations, 2013 to be substantively defective for contravening Section 46(2) of the Kenya Roads Act, and struck it out.

The decision comes as relief for cargo transporters, who have been at loggerheads with KeNHA over use of the two regulations to extort money from them.

Two other cases are pending in the Milimani High Court, challenging the same regulations.

Disaranio’s lawyer Gad Ouma had argued that the firm was not allowed to put up a defence after KeNHA officials, armed with a mobile weighbridge, impounded its truck at the Savannah Cement plant in Athi River. Mr Ouma insisted that the vehicle was at the time off the road, hence outside KeNHA’s jurisdiction.

KeNHA’s functions

Justice Nyamweya held that KeNHA’s services are limited to its functions — management, development, rehabilitation and maintenance of national roads — meaning it had overstepped its mandate in purporting to punish transporters for overloading.

“The law in this respect cannot delegate to executive officers the power to prescribe a criminal penalty or to define the scope of its application, which, in essence, was the effect of regulations 14 and 15 of the KeNHA Regulations, 2013. These powers are left to judges, judicial officers and tribunals appointed under the authority of the Constitution,” said Justice Nyamweya.

Disanario had already deposited Sh306,000 in a joint bank account with KeNHA, which was to remain untouched until the dispute was resolved.

A new law was in October passed, significantly increasing the fines on transporters found driving overloaded vehicles on Kenyan roads.

The East African Vehicle Axle Load Control Act, 2015, which came into force on October 1, last year increased the fine for overloading by 31 tonnes and above to Sh13 million.

The law has set the maximum gross vehicle weight on East Africa Community roads at 56 tonnes.

Besides the gross vehicle weight, overloading also depends on whether the load is well distributed across the axles. For a standard single axle with two tyres, the maximum allowed weight is eight tonnes. A standard single axle with four tyres is allowed to bear up to 10 tonnes.

For a conventional tandem (duo) axle that has eight tyres, the maximum allowed weight is 18 tonnes. For a tridem (three) axle configuration that has 12 tyres, the maximum allowed weight is 24 tonnes.

The Act provides a five per cent tolerance on the permissible maximum axle load limit.

KeNHA estimates that overloading shortens the lifespan of roads by up to two-thirds, and that the fines would help discourage transporters from violating the law.

The court’s decision now means that the prescribed fines can only be slapped after suspects have been charged in the Chief Magistrate’s Court and allowed to defend the overloading allegations against them.