The Kenya National Highways Authority (Kenha) has been directed to pay a bus company more than Sh800,000 after one of its 44 vehicles was illegally intercepted and detained for carrying excess passengers.
Mombasa Resident Judge Eric Ogola found that Kenha acted beyond its powers when it intercepted the bus belonging to Chania Genesis Ltd, forcing passengers to spend the night in the cold.
“I find and hold that Kenha violated the law, and acted in excess of the powers vested upon them,” Justice Ogola said.
“The petitioner be and is hereby awarded the sum of Sh850,000, as damages suffered from the loss of business from the said vehicle for 34 days at Sh25,000 per day.”
The court also ruled that Kenha infringed the company’s right to ownership of the property when it detained the vehicle for 34 days, denying it its daily expectation, and without giving the management a fair hearing.
“The petitioner was deprived of the use of his property without being accorded a hearing. The weighing ticket and prohibition order served upon the petitioner’s driver did not amount to an explanation as to why the vehicle was being seized,” the judge said.
The company sued Kenha in 2019 after its vehicle was intercepted in Dongo Kundu and thereafter detained for more than a month.
The National Transport and Safety Authority (NTSA) was also enjoined in the case as an interested party.
Court records indicate that the bus carried more passengers than its normal capacity of 48 when it was stopped by Kenha officers at the Dongo Kundu weighbridge station and the driver informed that the bus had an excess load of 2,660kg.
The officers then ordered the driver to pay Sh109,825 or the bus would be detained.
The bus was detained that night, forcing passengers and the bus crew to spend the night at the weighbridge station.
The company then sued Kenha for infringement of its fundamental rights to be treated in a credible and accountable manner, and to enjoy a legal system.
It claimed in court documents that the right to enjoy fair administrative action and that of natural justice was infringed.
The company argued that the power to control and supervise passenger transport vehicles is placed on the NTSA.
“Kenha can only supervise and regulate cargo transport,” Chania Genesis manager Joseph Ndung’u said.
Explaining the loss incurred, Mr Ndung’u told the court that in a day, the vehicle would make Sh36,712, which translates to Sh1.2 million per month.
He also said the company had a fleet of 44 buses and had operated since 1989.
“We paid the fine of Sh109,825 because Kenha had refused payment earlier,” he said
Michael Maingi, who represented Kenha in the dispute, maintained that no law was violated when the vehicle was detained for carrying excess passengers.
“The vehicle was found to have an overload of 2,660kg and an axle overload of 2,000kg. The bus was detained and the driver served with a prohibition order. Due process was followed in the weighing and detention of the vehicle,” he said
He said Kenha also informed the office of the Director of Public Prosecutions of the detention of the vehicle, requesting the court to allow the station to detain it until the overload charges were paid.
He argued that inspectors, in ascertaining compliance with required load capacities, are guided by the law, which provides that when a vehicle exceeds the maximum legal weight, it is removed from the road and the driver is charged in a court of law, where he has an opportunity to be heard.
“The petitioner has not proved any loss as there has been no breach of duty of care or breach of the rules of natural justice. We ask that the case be dismissed,” he said
Justice Ogola said that evidence showed the vehicle had an overload of 2,660kg and an axle overload of 2,000kg.
“It has not been indicated anywhere that the petitioner was given the opportunity to defend the overload allegations since the property belonged to them,” he said
The court has ordered that the Sh109,825 the company paid to get its vehicle released from Kenha’s yard in Dongo Kundu be refunded.