Mombasa Water Products Ltd v Kenya National Highways Authority
The bottom line
#Kenya's Court of Appeal ruled that a transporter challenging KeNHA overload fees at the weighbridge could go straight to court because no actual appeal mechanism existed.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant was bound to exhaust administrative remedies under the EACVLCA and its Enforcement Regulations before filing the constitutional petition
No. Although section 17(4)(a) and (b) of EACVLCA envisages an appeal against overload fees under regulations made under the Act, the 2018 Enforcement Measures Regulations contain no appellate mechanism; the appellant therefore had no alternative remedy to exhaust.
The Court examined section 17(4) of the EACVLCA and Part III of the 2018 Regulations and found no appeal mechanism against a weighbridge decision. The tick-box on Form EACV-1 allowing expression of dissatisfaction was of no consequence without an appellate mechanism. Moreover, the certificate actually issued to the appellant omitted even that tick-box, so the appellant was unaware of any right of redress. Knowledge of a remedy is central to the exhaustion doctrine, so the doctrine could not be invoked against the appellant.
Whether the High Court erred in holding that the appellant had to exhaust internal mechanisms or apply for exemption under section 9(4) of the Fair Administrative Action Act
Yes. Since no alternative remedy existed, the learned Judge erred in finding the petition barred by the exhaustion doctrine and in requiring an exemption under section 9(4) of the FAA.
The Court respectfully disagreed with the superior court's finding that an internal dispute resolution mechanism existed under the EACVLCA. As the regulations provided no appellate mechanism, the appellant was not mandated to utilise any alternative remedy before approaching the court, and the requirement to demonstrate exceptional circumstances under section 9(4) of the FAA did not arise. This ground alone justified allowing the appeal and setting aside the judgment below.
What disposal was appropriate given that the appeal succeeded on a preliminary legal question
The Court exercised its wide discretion under rule 33 to set aside the judgment and remit the petition to the High Court at Mombasa for hearing on its merits, leaving High Court costs to abide the outcome.
Noting that the appeal turned on a preliminary question of law, the Court invoked rule 33 of the Court of Appeal Rules, which permits confirming, reversing or varying the decision below or remitting with directions. Relying on Oraro & Rachier Advocates v Co-operative Bank of Kenya Limited, it held that the rule clothes the court with wide judicial discretion to order retrial or remittal depending on the facts, and concluded the petition was eligible for retrial since the court was the only available avenue for the grievance.
Legal principles established
#- Where a statute envisages an appellate mechanism from an administrative decision, the subsidiary regulations must actually make provision for that mechanism; if they do not, there is no alternative remedy to exhaust before resorting to the courts.
- Knowledge of a remedy goes to the heart of the doctrine of exhaustion; a party cannot be required to exhaust a remedy of whose existence it was not made aware.
- Where there is a clear procedure for redress of any particular grievance by the Constitution or an Act of Parliament, that procedure should be strictly followed (reiterating Speaker of the National Assembly v Karume).
- Under rule 33 of the Court of Appeal Rules, the Court has wide discretion, on its own motion, to remit proceedings to the High Court with directions where appropriate.
Court orders
#- 1.The appeal is allowed with costs to the appellant
- 2.The judgment of Mativo, J. delivered on 9th November 2021 is set aside
- 3.The constitutional petition is remitted for hearing and determination at the High Court in Mombasa
- 4.The costs at the High Court shall abide the outcome of the constitutional petition
- On appeal from
- High Court of Kenya at Mombasa
- Mombasa Constitutional Petition No. E037 of 2021
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal under Article 164 of the Constitution, exercising powers under rule 33 of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Muema (The Chairperson of Vescon One Residents Welfare Group) v Nzai (Appeal E250 of 2024) [2025] KEELRC 1240 (KLR)[2025] KEELRC 1240 (KLR)30 Apr 2025applied
Cite this brief
#Cite this brief
Caselaw, "Mombasa Water Products Ltd v Kenya National Highways Authority", Case Analysis (2025). Civil Appeal (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/663/eng@2025-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.