[2019] KETLABT 43 (KLR)

IN THE TRANSPORT LICENSING APPEALS BOARD

ATMURANG’A

APPEAL CASE NO 022 OF 2019

KANGEMA TRAVELLERS SAVINGS & CREDIT

CO-OPERATIVE SOCIETY LIMITED...........................................1ST APPELLANT

MATHIOYA EXPRESS SAVINGS & CREDIT

CO-OPERATIVE SOCIETY LIMITED..........................................2ND APPELLANT

MUIGANA CO-OPERATIVE SAVINGS & CREDIT

SOCIETY LIMITED..........................................................................3RD APPELLANT

KAMUNA SACCO LIMITED..........................................................4TH APPELLANT

VERSUS

THE NATIONAL TRANSPORT & SAFETY AUTHORITY.....1ST RESPONDENT

NAMU SUPREME SHUTTLE LIMITED...................................2ND RESPONDENT

JUDGMENT

Introduction

1. The First, Second and Third Appellants are Saccos that are registered under the Cooperative Societies Act (Cap 490) and they have been licensed by the First Respondent Authority to operate public service vehicles.

2. The Fourth Appellant is a corporate body that is registered under the Companies Act, Cap 486 of the Laws of Kenya, and it is licensed by the First Respondent to operate public service vehicles.

3. The First Respondent, National Transport and Safety Authority (NTSA), 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.

4. The Second Respondent is a corporate body that is registered under the Companies Act, Cap 486 of the Laws of Kenya, and it is licensed by the First Respondent to operate public service vehicles.

The Appellants’ Case

5. The Appellants filed an appeal at the Transport Licensing Appeals Board (TLAB) on the 28th of June 2019 challenging the license issued by NTSA to NAMU to operate on the route of Nairobi, Murang’a, Kangema and back.

6. The Appellants averred that on or about 15th July, 2019, NTSA issued Road Service licenses (RSLs) to five NAMU buses allowing them to ply the route of Nairobi, Murang’a, Kangema and back.

7. The Appellants challenged the issuance of the licenses on the following grounds:

i. That the licenses were issued without due regard to section 29 of the National Transport and Safety Authority Act No. 33 of 2012. The Appellants submitted that NTSA did not consult or seek the consensus of the other operators before issuing the new licenses.

ii. That issuance of the licenses was in contravention of this Board’s decision in Appeal case number 059 of 2017 through which the Board affirmed the decision of NTSA to grant NAMU’S five buses the license to ply the route of Nairobi, Murang’a, Mugoiri, Kangema and back (and not Nairobi, Murang’a, Kangema and back).

8. The Appellants submitted that the issuance of the licenses would negatively affect them financially, as the route was already congested.

9. The Appellants sought orders to revoke NAMU’s licenses for the route of Nairobi, Murang’a, Kangema and back.

Respondents’ Case

10. The Respondents submitted that the issuance of the licenses was not an abuse of discretionary powers of NTSA given that section 30 of the National Transport and Safety Authority Act No. 33 of 2012 enables NTSA to cancel or vary any condition attached to a licence.

11. It was the submission of NAMU that they made an application to NTSA requesting for the variation of the licenses in question and their application was allowed.

12. The Respondents sought orders dismissing the appeal.

Determination

Following the evidence adduced by the parties before the Transport Licensing Appeals Board, the Board has isolated the following issue for determination whether:

i. NTSA’s decision to vary NAMU’S license went against this Board’s decision in Appeal Case No 059 of 2017;

ii. the Second Respondent could vary a license without consulting the Appellants;

iii. the route was congested;

13. According to section 4 of the National Transport and Safety Authority Act No. 33 of 2012, NTSA has the authority to plan, manage and regulate the road transport system in accordance with the provisions of the Act. It also has the responsibility for ensuring the provision of safe, reliable and efficient road transport services.

14. To discharge the mandate under section 4, NTSA is also empowered, through section 30 of the NTSA Act No. 33 of 2012, to cancel or vary conditions attached to a licence, on its own motion or on the application of a licensee.

15. Further, section 29 of the NTSA Act 2012 states that: “The Authority may grant or decline to grant any application for a licence, or grant a licence subject to such conditions as it may consider fit to impose, and, in exercising its discretion, the Authority shall have regard to the public interest, including the interest of persons requiring and those of persons providing facilities for transport, and to such other matters as may be prescribed…”

16. Regarding the contention of the Appellant to the effect that NTSA’s decision to vary NAMU’S license went against this Board’s decision in Appeal Case No 059 of 2017, the Board finds that its decision in the 2017 case did not tie the hands of NTSA in exercising its discretion, as circumstances on the ground are dynamic.

17. On the contention that the Appellants were not consulted by NTSA before the variation of the licenses consult them before varying NAMU’S license, the Board finds that the discretionary power under section 29 of the NTSA Act 2010 does not impose a mandatory condition for consultation, but requires the authority to act in the public interest.

18. Regarding the contention of the Appellant that the route was congested and, as such, more vehicles should not have been added, no evidence was tabled to prove that the route was congested. To the contrary, it was the Appellants’ admission that they had already increased their fleet on that route, a fact that points to growth of business on the route.

19. Having considered the facts and the law applicable to this case, the Transport Licensing Appeals Board hereby makes the following declarations and orders:

1. That the appeal is dismissed.

2. That the decision of NTSA to grant five NAMU buses the route of Nairobi, Murang’a, Kangema and backis affirmed.

3. That parties meet their own costs.

Delivered, dated, and signed in Murang’a by the Transport Licensing Appeals Board on this 10th day of December 2019.

Moses ParantaiMember

Aden Noor Ali Member

Betty Chepng’etich Bii Member