Commercial transporters are up in arms over a law that gives the highways authority power to impose fines without a court process on vehicles suspected to have bypassed weighbridges.
Since the law came into effect three years ago, transport firms have been at loggerheads with the Kenya National Highways Authority (Kenha) and have separately approached the High Court to have the regulation declared unconstitutional.
Regulation 15 of the Kenya Roads Regulations 2013 says: “Where a vehicle is found to have bypassed or absconded from a weighbridge, whether overloaded or not, the owner shall be liable to pay a bypassing or absconding fee of $2,000 or its equivalent in Kenya shillings,” the section says.
But investors in the transport sector say the law overlooks the principle of a person being heard before any adverse action can be taken. High Court stations in Mombasa, Machakos and now Nairobi are handling related cases in which traders want the regulation nullified.
In a ruling delivered in Nairobi on March 10, Justice Joseph Onguto agreed with the contention of the traders.
He said Kenha appears to be “the complainant, the witness, the judge and the executioner” in the current standoff with transporters.
Muchui Builders and Timber Suppliers, through its sole proprietor Erastus Gituma, had sued the authority over detention of its two lorries.
“I would tend to agree with [Justice John] Emukule J that [Kenha] could be operating a ‘kangaroo court’,” said Justice Onguto. He was referring to an earlier ruling by a fellow judge based in Mombasa.
Kenha had impounded two vehicles owned by Muchui Builders at Juja Weighbridge on February 15 and at Isinya Weighbridge on February 16.
Kehna said that by the time the vehicles were impounded, they had been tagged into its systems for being weighbridge absconders. It added that its decisions were aided by cameras installed at weighbridges.
Justice Onguto ordered that Kenha releases the two vehicles as the case goes on but after Muchui Builders deposited in court a Sh200,000 security.
In the case that Justice Emukule handled, Kenha was told to release a Mitsubishi Canter vehicle belonging to Ms Margaret Miano.
The vehicle had been intercepted on April 13, 2015 after it allegedly bypassed the Mtwapa Weighbridge.
But the Judiciary appears split on the Kenha provision. In a 2014 decision by Lady Justice Lillian Mutende, sitting in Machakos, the law was let to stand because it basically provides for payment of a fee.
That same year, Justice Mutende turned down another request to release a Uganda-bound truck held over the same reasons.