Fee or Fine?

Imposition of fees as liability for a vehicle that by-passes or absconds a weighbridge without legal proceedings was unconstitutional.
Margaret Miano v Kenya National Highways Authority
Petition 23 of 2015
High Court at Mombasa
M J Anyara Emukule, J
May 8, 2015
Reported by Beryl A. Ikamari
Brief facts:
The Applicant’s motor vehicle was found to have by-passed the Mtwapa Weighbridge
in Kilifi County. Under regulation 15 of the Kenya Roads (Kenya National Highways Authority) Regulations 2013 the registered owner of a vehicle found to have by-passed a weighbridge was liable to pay a by-passing fee of US $2, 000 or its equivalent in Kenya shillings. The Respondent’s officers detained the Applicant’s motor vehicle and demanded the payment of US $2, 000 without subjecting the Applicant to any proceedings.

The Applicant, through an application dated 16th April 2015, sought and was granted orders to stay the decision to fine her a sum of $2000.00 without due process. At the hearing of the matter, she also asked for the release of her motor vehicle on grounds that its continued detention was a violation of constitutional rights. 

Issue:
  1. Whether regulation 15(3) of the Kenya Roads (Kenya National Highways Authority) Regulations 2013 envisaged a criminal trial or other legal proceedings before the imposition of a bypassing or absconding fee.
Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-fair trial-whether a fee could be imposed for the offence of bypassing or absconding a weighbridge without a trial-Constitution of Kenya 2010, articles 50 & 159; Kenya Roads (Kenya National Highways Authority) Regulations 2013, regulation 15(3).
Statutes-statutory interpretation-the legal import of bypassing or absconding fee in regulation 15 of the Kenya Roads (Kenya National Highways Authority) Regulations 2013-whether it was actually a fee or it was a fine imposed for an offence-Kenya Roads (Kenya National Highways Authority) Regulations 2013, regulation 15(3).Read More…
Held:
  1. There was a difference in law between a fine and a penalty. A fee would be a price or cost exacted for any special privilege, for example, a driver’s licence, a transport licence and the like. A penalty would be a fine, punishment, suffering or loss imposed for breach of a law, a disadvantage imposed upon a person who failed to obey the rules.
  2. Regulation 15(3) was not a licensing provision.  It was a penal provision and like all penal provisions, it had to be construed strictly.  The fact that the provision euphemistically refers to a fee did not change its intrinsic character. The regulation provided for a fine or penalty for the offence of bypassing a weighbridge or absconding therefrom.
  3. The offence of bypassing a weighbridge or absconding required proof and there was no presumption that a driver or person who bypassed a weighbridge was automatically guilty. It was an offence for which a charge and due process was required before the offender or transgressor was punished.
  4. It would be a violation of the guarantees of a fair trial under article 50 of the Constitution if regulation 15(3) was interpreted in a way that allowed the Kenya National Highways Authority to act as a Judge, Jury and Executioner. The provisions of regulation 15(3) went contrary to article 159 of the Constitution of Kenya 2010 to the extent that they conferred upon the Kenya National Highways Authority power to collect fee/fines without due process by donating to such fines the euphemism of a fee.  To that extent regulation 15(3) gave Kenya National Highways Authority the powers of a Kangaroo court unlawfully.

Application allowed. (Orders were issued for the Applicant’s motor vehicle to be released.)

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