High Court Okays Use Of Load Capacity To Set Cargo Limits

Republic v Minister of Roads and Public Works & another Exparte Kyevaluki Services LTD. ( www.kenyalaw.org)

High Court at Nairobi

Githua CW J

May 29 2012

The adoption of sole use of load capacity in the assessment of the load limits of cargo vehicles is not unlawful, the court has held. This was held by the High Court in Nairobi in a judicial review matter where Kyevaluki Services Ltd (Exparte Applicant) moved the court to quash the entire decisions by the Minister of Roads and Public Works (1st Respondent) and Kenya National Highway Authorities (2nd Respondent).

The application was brought on the grounds that section 56 of the Traffic Act Cap 403 Laws of Kenya specified that any vehicle load on the road was the one specified by the manufacturer of the chassis of the vehicle or the load capacity determined by an inspector under the Act. The applicant stated that the 1st and 2nd Respondents had solely adopted section 56 yet the system was inconsistent and gave different vehicle loads at different weigh bridges and had proceeded to penalize the applicant for claimed excess load before any conviction by a Court of Law.

The applicant also claimed that the 1st and 2nd Respondents’ sole use of the load capacity determined by an inspector under the Act was erroneous, was arrived without the applicant being heard and was tantamount to breach of the rules of natural justice and was oppressive to the applicant and other members of the public affected by the said decision. He also contended that he had suffered substantial irreparable loss that he would continue to suffer if the 1st and 2nd Respondents’ decision was not quashed and a prohibitory order issued from enforcing the sole use of the load capacity determined by an inspector under the Act.

Preliminary objections were raised by the 2nd respondent to the effect that the Notice of Motion was defective, as it had not been made in the Name of the Republic as per the established practice in commencing judicial review proceedings. The issue of whether the court had jurisdiction to issue orders of certiorari where no decision had been annexed to the application as required by Order 53 Rule 7 of the Civil Procedure Rules was also raised.

While opposing the application, the 2nd respondent submitted that it had acted within the law as empowered by the Traffic Act when using the inspectors appointed under section 3 in determining the vehicles load capacities and executing its statutory mandate of designing, building and maintaining national highways within the Republic of Kenya. It was also stated that it was erroneous to determine load capacity of vehicles by their gross weight as damage to the road was caused by weight on axles not gross weight. It was further submitted that there was direct connection between damage and maintenance of roads and axle loads and emphasis should have been placed on axle loads, which were determined by inspectors in order to serve the wider public interest of maintaining good roads.

Lastly, the 2nd Respondent averred that the inspector was an expert who relied on the caliberation machines in determining the weight of vehicles when performing his duties.

In deciding the matter, the court first dealt with the preliminary objections raised by the 2nd respondent. It found on the first objection that it was misplaced as the applicant’s Notice of Motion; on the face of it that it was made in the Name of the Republic as the applicant thus was not defective and is properly before the court. The Judge went on to say that even if the application was not made in the Name of the Republic, such omission would be a matter of form which would not have gone to the substance of the application and bore in mind that the new constitutional dispensation emphasized on substantive justice as opposed to procedural technicalities. It was concluded that such want of form would not have rendered the application incompetent or defective.

On the 2nd objection, the applicant had sought orders of certiorari to quash decisions allegedly made by the 1st and 2nd respondent which adopted the use of a system that determined load limits of cargo vehicles by inspectors. Order 53 Rule 7 of the Civil Procedure Rules provided that any proceedings, decisions or order or other record whose validity was challenged must be in writing. The law required that a copy thereof verified by affidavit be lodged with the court’s registrar before the hearing of the Notice of Motion perhaps to prove its existence.

A party who failed to avail a copy of the impugned decision, order, warrant, commitment, inquisition or other record to the court before hearing of the Notice of Motion was to explain his failure to do so to the satisfaction of the court. It was held in this case that the applicant failed to prove that the respondent had made any decision detrimental to its interest that was capable of being investigated by way of Judicial Review or which was capable of being quashed by orders of certiorari and that the applicant failed to demonstrate that it was entitled to orders of certiorari as sought in the Notice of Motion. It was also clear, the Judge observed, that in adopting the 2nd method which was the load capacity to be determined by an inspector under the Act by the 2nd respondent as opposed to the 1st one where a load greater than the load specified by the manufacturer on the chassis of the vehicle was authorized , it did not make the respondents actions illegal or unlawful.

Equally, the court observed that there was no evidence to counter the 2nd respondents position that the determination of excess vehicle load was done using machines and had nothing to do with an individual inspector's subjective decision. It found that this destroyed the credibility of claims by the applicant that the inspector’s determination of excess loads in its vehicles had been done unreasonably or arbitrarily.

The applicant had also sought orders of mandamus to compel the respondents to apply the method of using gross weight shown by manufacturers on chassis of vehicles to determine maximum permitted weight of cargo vehicles. The Judge noted that the order of mandamus was not available to the applicant as prayed because the applicant failed to show that the respondents had failed or refused to perform their statutory duties under the Act to the detriment of the . On the contrary, Section 56(1) of the Act had given the 2nd respondent discretion in deciding which of the two methods specified therein to use when executing its mandate of determining the load capacity of cargo vehicles.

Lastly, the court was urged to issue orders of prohibition forbidding the 2nd respondent from adopting the sole use of load capacity determined by an inspector. On this prayer, the court held that prohibition orders looked to future and sought to stop contemplated decisions which if made would be contrary to the law. It noted that if the applicants were of the view that the respondents were wrong in adopting the said method of determining load limits of vehicles, the court could not issue orders of prohibition to stop a statutory body from executing its statutory functions unless it was established that the said body planned to violate the rules of natural justice or act contrary to the law when performing its statutory obligations and functions. In conclusion, the court dismissed with costs to the 2nd respondent the Notice of Motion dated 16th December 2010 for lack of merit.