Businessman loses fight for his impounded 23 overweight buses

A bus passes the Ahero virtual weighbridge in Kisumu on December 5, 2018. A businessman has lost a legal battle over his 23 buses impounded by KeNHA exceeding recommended weights.

Photo credit: File | Nation Media Group

A businessman has lost a fight over his 23 passenger service buses impounded by the Kenya National Highways Authority (KeNHA) for breaching the prescribed legal weight.

High Court Judge Lawrence Mugambi dismissed John Waithaka Thuo’s petition saying that KeNHA did not infringe on his right to property as the agency was lawfully discharging its legal mandate.

The businessman had accused the agency of unilaterally weighing his buses at weighbridges across the country and subsequently impounding them for exceeding recommended weights without allowing him to be heard or defend himself.

“From the foregoing legal provisions, it is crystal clear that the 1st respondent (KeNHA) in the exercise of its legal mandate has the authority to detain and impound overloaded motor vehicles upon weighing and finding that they exceed the recommended tare weight,” said the judge.

As to the prayer to compel the government agencies to put correct entries in the log books on the tare weight of the 23 buses, the judge said it was the responsibility of the businessman to apply for the correction of the information on the log books as provided under Section 6(7) of the Traffic Act.

Justice Mugambi added that the National Transport and Safety Authority (NTSA) cannot be compelled to register Mr Thuo’s vehicles using weights higher than those prescribed by law.

The judge said the Traffic Act provides for a specific gross vehicle weight for vehicles in the category as those of Mr Thuo's and the NTSA cannot therefore record a weight in the logbook above that stipulated in the Act.

Mr Thuo moved to court to protest against the clampdown on his buses for allegedly exceeding the recommended tare weights.

He said the 23 buses were in the Class 2 axle category with a maximum load of 18,000kg and a capacity of between 49 and 67 passengers.

The businessman denied KeNHA’s claims.

He said he took the buses for independent weighing at the National Cereals and Produce Board (NCPB), which recorded various weights and confirmed that the motor vehicles were compliant as they had never exceeded the recommended tare weight.

He further alleged that there was an oversight during the inspection of the vehicles by the NTSA and Kenya Bureau of Standards (Kebs) leading to wrong entries in the log books on the tare weight of the said vehicles and he was never allowed to defend the overload claims.

He terms KeNHA’s action of detaining the motor vehicles at different weighbridges as unconstitutional, pre-determined and actuated by malice.

KeNHA defended itself by saying the vehicles had been weighed on diverse dates at different weighbridges across the country and the weigh bridge tickets generated confirmed that the buses were overweight.

The authority faulted Mr Thuo for failing to table the inspection report from NCPB as well as the individual logbooks of the vehicles in question.

The judge said in the decision that Mr Thuo did not deny that the weighbridge tickets were issued by KeNHA, but he never contested them before the Cabinet Secretary for Roads before going to court.

“The filing of this petition offends the principle of exhaustion of administrative remedies in the circumstances,” the judge said, adding that there was a clear path through which disputes arising from the implementation or application of the provisions of the Act in question could be resolved as provided for in the Kenya Roads (Kenya National Highways Authority) Regulations.

The judge said Mr Thuo had skipped the process of taking up the matter of the disputed fines for overloading with the Cabinet Secretary before approaching the court, thereby offending the doctrine of exhaustion of remedies.

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