Judiciary accuses KeNHA of setting up kangaroo court

By Benard Sanga

Mombasa, Kenya: The Judiciary in Mombasa is accusing the Kenya National Highways Authority (KeNHA) of operating illegal courts, arresting drivers and charging unconstitutional levies at its weighbridges in the Coast region.

It has emerged that the road agency has collected over Sh49 million in fines from overloaded truck owners and their drivers in the last three months. According to documents seen by The Standard, KeNHA also inflated fines by up to 100 per cent from those stipulated in the Gazette Notice 65 of the Traffic Act of 2008.

On Wednesday, KeNHA admitted that it introduced the on spot penalties for drivers and owners of trucks found guilty of carrying excess loads on October 5 last year, but suspended the system on Monday after inquiries by The Standard.

“No, we are not imposing fines but (charging) overloading fees as a road user charge. These fees were inadvertently left out during publication of the Gazette Notice 86, of May 10 2013,  but after consultation with our legal department we have stopped,” said Muita Ngatia, manager in charge of Axle Load Control yesterday.

The official admitted that the agency introduced the on-the-spot penalties, although the legal notice that was supposed to back the move was “inadvertently not gazetted by the Principal Secretary.”

Ngatia said that KeNHA had this week written to the Principal Secretary to gazette the schedule but in the interim “following the legal opinion from the Legal Department, we stopped the process so that nobody gets to capitalise on it unfairly”.

He also admitted that Sh49 million had been collected by January 20 when the was levy stopped and KeNHA reverted to the previous system where weighbridge managers only raise prohibition orders and hand over suspects to police for prosecution.

The matter was first raised by the Judiciary on December 3 last year when a magistrate complained over “an illegal court at the Mariakani weighbridge run by a private firm that was arresting offenders and fining them, taking over the role of the police and the courts.”

Constitution

In a letter to KeNHA, Mariakani law courts Principal Magistrate Michael Kizito said he was forced to act following complaint from the Mariakani weighbridge OCS Elias Kiptoo over the exclusion of the police from weighbridge matters.

Kizito says in the letter dated December 31, last year that exclusion of the police and the courts from the weighbridge traffic offences was against legal notice 86 of May 10, 2013 and the Constitution.

“It is noteworthy that traffic offences are criminal offences which must be subjected to the due process of the law as envisaged in the Constitution. It is only the court, under the Constitution, that can impose fines and/or punish offenders,” said the letter copied to the office of the Chief Registrar of the Judiciary.

He said the Constitution gives the courts or established tribunals powers to handle all judicial matters and “erecting illegal courts and purporting to do the police function at weighbridges” was tantamount to “exclusion of the courts and police in weighbridge traffic matters.”

But is has also emerged that KeNHA had also gone out of its way to increase and charge fines that have not been gazetted.

A copy of the prohibition order under KeNHA letterhead on the fine to be paid by one of the transporters indicates that the agency was charging Sh20,000 for an excess load of 1,122kg, which is higher than the legally recommended fine of between Sh5,000 to Sh10,000.

But KeNHA insisted that the fines it charged were equal to those that the court could have surcharged drivers and the truck owners combined.

Yesterday Ngatia said the issue was being raised by the police because they have been rendered irrelevant by the overload fees and the presence of high speed weigh-in-motion facilities.