[2020] KETLABT 28 (KLR)

REPUBLIC OF KENYA

IN THE TRANSPORT LICENSING APPEALS BOARD AT NAIVASHA

APPEAL CASE NO 16 OF 2020

EXPRESS PRESTIGE SHUTTLE LTD................................................APPELLANT

VERSUS

THE NATIONAL TRANSPORT & SAFETY AUTHORITY..........RESPONDENT

RULING

Introduction

1. The Appellant is a limited company that is licensed by the Respondent Authority to operate public service vehicles.

2. The Respondent, National Transport and Safety Authority, is established under section 3 of the National Transport and Safety Authority Act, No. 33 of 2012 and has the responsibility to: advise and make recommendations to the Cabinet Secretary on matters relating to road transport and safety, implement policies relating road transport and safety; plan, manage and regulate the road transport system; ensure the provision of safe, reliable, and efficient road transport services and to administer the Traffic Act.

The Appellant’s Case

3. The Appellant filed a certificate of urgency on the 14th October 2020 seeking to lift the order suspending the operation of all its vehicles following an alleged incident of reckless driving of one of their vehicles, KCW 895Q. The Respondent had suspended the vehicles on 29th September 2020.

4. It was the Appellant’s argument that the suspension of the vehicles pending their inspection at the Likoni Motor Vehicle Inspection Centre was unconstitutional, illegal, irrational, unreasonable, and a gross miscarriage of justice, as it was done without following the procedural safeguards under the Fair Administrative Action Act of 2015 - namely the right to be given a notice, hearing, reasons for a decision etc.

5. It was the Appellant’s case that the appeal constitutes a prima facie case with overwhelming chances of success.

6. The Appellant also averred that they would suffer irreparable financial harm incapable of compensation by an award of damages due to the Respondent’s draconian measure of suspending the operation of all their vehicles.

7. The Appellant argued that it should not be punished without the benefit of due process, including the right to exhaust the right of appeal.

8. Pending the hearing and determination of this matter, the Appellant applied for a temporary order to lift the suspension of their vehicles.

The Respondent’s Case

6. Through a replying affidavit by the Deputy Director in Charge of Licensing, Cosmas Ngeso, the Respondent stated that it had followed all the rules of natural justice given that the Appellant was given a hearing on the 29th of September 2020. The minutes of this meeting were attached as evidence.

7. Following the meeting of 29th September 2020, the Respondent required the Appellant to fulfil the following three conditions:

a) Compliance inspection on all its motor vehicles at the Inspection Centre from 2nd October 2020.

b) That all drivers and conductors be subjected to road safety awareness training between 5th and 9th October 2020.

c) The Appellant presents a road safety policy to the authority to facilitate the auditing of the Appellant company.

Determination

8. Following the arguments presented by the parties, the Transport Licensing Appeals Board has isolated the following issues to be the ones requiring a determination:

a) Whether the Respondent satisfied all the conditions under the Fair Administrative Action Act of 2015 before suspending the vehicles?

b) Whether on the evidence and material placed before the court, the Appellant has satisfied the conditions upon which a temporary injunction can be granted?

Whether the Respondent satisfied all the conditions under the Fair Administrative Action Act of 2015 before suspending the vehicles?

9. It was the Appellant’s contention that the Respondent did not comply with the Fair Administrative Action Act of 2015, especially in relation to the need to give a notice, hearing, and reasons for the decision.

10. The Respondent was able to prove that it gave a hearing to the Appellant on the 29th September, 2020. However, no evidence was adduced to prove that a notice had been given prior to the meeting of the 29th of September 2020.

11. The need to be heard and given prior notice and reasons for an administrative action that affects a person negatively is a fundamental right under Article 47 of the Constitution, which is given effect by the Fair Administrative Action Act 2015. Section 4 of the Fair Administrative Action Act (2015) provides that:

“(2) Every person has the right to be given written reasons for any administrative action that is taken against him. (3) Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision: (a) priorand adequate notice of the nature and reasons for the proposed administrative action; (b) an opportunity to be heard and to make representations in that regard; (c) notice of a right to a review or internal appeal against an administrative decision, where applicable.”

12. It is now an established principle of administrative law that a decision that is taken without due regard to the rules of procedurally fairness cannot be allowed to stand. This was the position espoused in the case ofOnyango Oloo vs. Attorney General[1986-1989] EA 456,where the Court of Appeal held that the “denial of the right to be heard renders any decision made null and void ab initio.”

13. On the need to give a notice, Kaluma notes that:

“Notice is a condition precedent to fair hearing. Any hearing undertaken without due notice to the affected party violates the requirements of natural justice, is null and void and lends itself to being quashed … notice to be good should contain sufficient detail to enable one to fully appreciate the charge or complaint he is to face. The details requiring specific mention in a notice include the complaint or charge, the time, day and location of the incident charged or matter complained about … the action proposed to be taken and the grounds on which the charge or complaint is based.” (Peter Kaluma, Judicial Review: Law Procedure and Practice (LawAfrica, Second Edition, 2012), p. 178. )

14. It follows, therefore, that there was a breach of Article 47 for failure to give a requisite notice.

Whether on the evidence and material placed before the court, the plaintiff has satisfied the conditions upon which a temporary injunction can be granted?

15. . The conditions to consider in granting an injunction are provided for in the case of Giella vs Cassman Brown & Company Limited (1973) E A 358, where the court indicated that “an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the Court is in doubt, it will decide an application on the balance of convenience."

16. As pointed out above, there was no evidence adduced to show that the Appellant was given notice prior to the meeting of the 29th September 202. It is this argument that gives the Appellant a high probability of success in the case. Secondly, the Appellant is likely to suffer irreparable injury because all their vehicles are suspended. In light of the COVID-19 hardships, including loss of jobs, this is a serious threat to the livelihoods and lives of the affected families and ought to warrant the grant of an injunction, as damages would be insufficient to address the hardships.

17. Having considered the facts and the law applicable to this matter, the Transport Licensing Appeals Board makes the following orders:

THAT, pending the hearing and determination of this suit, the suspension of the Appellant’s vehicles is lifted with immediate effect and the Respondent, whether by itself or its representatives, servants or agents, is restrained from impounding the Appellant’s vehicles on the basis of circumstances arising from this suit.

DELIVERED, DATED, AND SIGNED IN NAIVASHA BY THE TRANSPORT LICENSING APPEALS BOARD ON THIS 29TH OF DECEMBER, 2020.

DICK WAWERU.......................................................CHAIRMAN

MOSES PARANTAI.....................................................MEMBER

PROF. KIARIE MWAURA.........................................MEMBER

BETTY BII....................................................................MEMBER

ADEN NOOR ALI........................................................MEMBER