[2021] KETLABT 652 (KLR)

TRANSPORT LICENSING APPEALS BOARD AT NAIROBI APPEAL

CASE NO 7 OF 2020

KANGEMI MATATU OWNERS SACCO SOCIETY LTD ....................APPELLANT

-VERSUS-

NATIONAL TRANSPORT AND SAFETY AUTHORITY ........FIRST RESPONDENT

LATEMA TRAVELLERS BUS & SAFARIS CO LTD...........SECOND RESPONDENT

NAIROBI CITY COUNTY ..........................................................THIRD RESPONDENT

AND

WESTLAND WATCH FOR PEACE, GENDER

AND DEVELOPMENT.....................................................FIRST INTERESTED PARTY

KANGEMI BODA BODA ASSOCIATION ……….SECOND INTERESTED PARTY

DIGITAL LUXURY TRAVELLERS CO. LTD ...........THIRD INTERESTED PARTY

RULING

Introduction

1. The Appellant is a savings and credit cooperative society (Sacco) that is licensed by the First Respondent to operate public service vehicles.

2. 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 to 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.

3. The Second Respondent is a limited liability company that is licensed by the First Respondent to operate public service vehicles.

4. The Third Respondent is a County Government established under the County Government Act of 2012. It has the mandate to manage the devolved function of county transport under Schedule 4 of the Constitution of Kenya.

5. The First and Second interested parties are welfare associations.

6. The Third Interested Party is a limited liability company that is licensed by the First Respondent to operate public service vehicles.

NTSA’s Case

7. Through a preliminary objection dated 23rd October 2020, NTSA contended that the appeal filed by Kangemi Matatu Owners (KMO) at the Transport Licensing Appeals Board (TLAB) on 28th July 2020 fell outside the jurisdiction of TLAB on the following grounds:

a. That KMO was a third party who had not made an application for a license to NTSA and cannot, therefore, be aggrieved by the decision of NTSA under section 38 of the NTSA Act.

b. That the appeal did not fall among appeals that can be filed against the decisions of NTSA as provided for under section 38 of the NTSA Act.

8. KMO had lodged an appeal at the Transport Licensing Appeals Board on 10th July 2020 seeking a permanent injunction restraining Latema Travellers Bus Ltd (LTB) from operating in Kangemi shopping centre. It was the contention of KMO that NTSA had extended the route of LTB, to include Kangemi, without following the required procedure as provided for in the NTSA Act, which led to chaos erupting in Kangemi.

9. NTSA averred in the preliminary objection that KMO could not make an application to TLAB under section 38 (1) of the NTSA Act, as KMO was not an applicant for the grant or the variation of a license. Section 38 (1) provides that:

A person who

(a) being an applicant for the grant or variation of a license is aggrieved by the decision of the Authority on the application,

(b) having made an objection to any such application as aforesaid, being an objection which the Authority is bound to take into consideration, is aggrieved by the decision of the Authority; or

(c) being a licensee, is aggrieved by the revocation or suspension thereof, may within the time and in the manner prescribed appeal to the Appeals Board established under section 39.

10. NTSA took the position that the objector referred to under (b) above had to be an applicant for the grant or variation of license.

11. It was NTSA’s argument that they had discretion under section 29 of the NTSA Act 2012 to grant or decline a license without consulting another transport operator. To support this argument, NTSA relied on the cases of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696; Kangema Travellers Sacco and Four Others v NTSA and Namu Supreme Shuttle Limited (TLAB Case No. 22 of 2019) and Rukagina 44 Sacco Ltd v Sunbird Services and NTSA (TLAB Case No. 6 of 2018).

The Case of LTB

12. LTB averred that KMO could not make an appeal under section 38 of the NTSA Act, as it had not made an application for a license to NTSA before lodging an appeal at TLAB. LTB relied on the following authorities: Republic v AG & 7 Others Ex Parte Risen Company Ltd [2017] eKLR; Republic v NTSA & 2 Others Ex Parte Rengcom Communications Ltd [2017] eKLR; Trans Valley Sacco & Another v NTSA & 3 Others [2019] eKLR; Republic v Cabinet Secretary, Ministry of Education Ex Parte Njomo John [2017] eKLR; Owners of the Motor Vessel v Caltex Oil (Kenya) Ltd [1989] KLR 1; Republic v Transport Licensing Appeals Board & 2 Others Ex Parte MNGN Sacco [2017] eKLR.

13. Regarding the construction of the sentences in section 38 of the NTSA Act, it was LTB’s argument that the semi colon between sentences (a) and (b) conjoined the two sentences, meaning that a party making an objection under (b) had to qualify first as an applicant under (a). The following authorities were used to support this argument: Oxford Advanced Learners’ Dictionary; Republic v Kenya School of Law & Another Ex Parte Jacob Omondi Obillo [2019] eKLR; AD v Refugee Appeals Tribunal & Anor [2009] 1 EHC 326.

The Case of Westland Watch for Peace, Gender and Development & Kangemi Boda Boda Association

14. The parties submitted that the preliminary objection did not meet the threshold set out in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, Independent Electoral & Boundaries Commission v 141 Jane Cheperenger & 2 Others [2015] eKLR, Orarov Mbaja[2015] eKLR, which require a preliminary objection to be based purely on a crisp point law rather than facts. According to the parties, the issues raised by NTSA’s objection could not be determined without looking at the factual issues, such as: whether KMO made an application for license; whether a license was issued etc.

The Case of KMO

15. It was KMO’s case that the objector envisaged under section 38 (1) (b) was different from the applicant under section 38 (1) (a) and, therefore, a person who was not an applicant for grant or variation of a license, a third party, could still make an appeal to TLAB.

16. KMO relied on the principle of literal interpretation of statutes to support its arguments and cited and the following authorities: Jonnah Tusasirwe & 10 Others v Council of Legal Education & 3 Others [2017] eKLR.

17. KMO also argued that the preliminary objection did not meet the required threshold, as it delved into factual matters instead of relying on crisp points of law. To support this, KMO relied on the following authorities: Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696; Quick Enterprises Ltd v Kenya Railways Corporation, Kisumu, HCCC No. 22 of 1999; Avtar Singh Bhamra & Another v Oriental Commercial Bank, Kisumu, HCCC No. 53 of 2004; and Oraro v Mbaja (2005) 1 KLR 141.

18. KMO made an application for costs and relied on the cases of Rosemary Wairimu Munene v Ihururu Dairy Farmers Cooperative Society Ltd[2019] eKLR; and Cecilia Kauri Ngayu v Barclays Bank of Kenya & Another [2016] eKLR.

Determination

19. Following the arguments adduced by the parties, the Transport Licensing Appeals Board has isolated the following issue to be the ones requiring a determination:

a. Whether the preliminary objection met the threshold of the law by not dealing with disputed facts

b. Whether section 38 (1) of the NTSA Act enables an objector (a third party) to make an appeal to TLAB.

Whether the preliminary objection met the threshold of the law by not dealing with disputed facts

20. The interested parties, Westland Watch for Peace, Gender and Development & Kangemi Boda Boda Association, contended that the preliminary objection did not meet the threshold set out in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, Independent Electoral & Boundaries Commission v 141 Jane Cheperenger & 2 Others [2015] eKLR, Orarov Mbaja [2015] eKLR, which require a preliminary objection to be based purely on a crisp point law rather than facts.

21. The interested parties relied on the dicta of Justice Ojwang in the case ofOraro v Mbaja [2005] eKLR 141, where he observed that:

“A preliminary objection is now well identified as and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the process of evidence. Any assertion which claims to be a preliminary objection and yet it bears factual aspects calling for proof or seeks to adduce evidence for its authentication is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. Where a court needs to investigate facts, a matter cannot be raised as a preliminary objection anything that purports to be a preliminary objection must not deal with disputed facts and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence.”

22. The preliminary objection raised by NTSA is based on the contention that KMO is a third party who had not made an application for a license to NTSA and could not, therefore, be aggrieved by the decision of NTSA under section 38 of the NTSA Act. The application of the test in Oraro v Mbaja entails establishing whether the assertion by NTSA was contested, had factual aspects calling for proof, called for investigation of facts, dealt with disputed facts, derived its foundation from factual information.

23. The pleadings as well as submissions from KMO indicated that KMO was a third party indeed, as it had not made an application for license to NTSA. As such, KMO did not contest its status as a third party. In fact, it was through the status of a third party that KMO made the case for objecting to the issuance of the license under section 38 (1) (b). This is clear proof that the preliminary objection did not rely on contested facts that needed proof or authentication.

24. As to whether the preliminary objection was derived from factual information, NTSA’s claim that KMO could not be aggrieved by the decision of NTSA under section 38 of the NTSA Act clearly anchored the objection in the law rather than facts, as it questioned the jurisdiction of TLAB to hear KMO’s appeal. We, therefore, find that the preliminary objection is merited and ought to be considered given that it meets the threshold set out in the law.

Whether section 38 (1) of the NTSA Act enables an objector (a third party) to make an appeal to TLAB.

25. It was NTSA’s argument that the objector under section 38 (1) (b) of the NTSA Act had to be an applicant for grant or variation of a license.

26. A literal interpretation of section 38 (1) (a), (b), and (c) shows that the provisions refer to three categories of applicants, namely:

a. Under section 38 (1) (a) – An applicant for grant or variation of license;

b. Under section 38 (1) (b) – An objector to an application as per (a) above.

c. Under section 38 (1) (c) – A licensee.

27. LTB averred that the above interpretation ought to be abandoned in favour of the one that views the semi colon between sentences (a) and (b) as playing the role of conjoining the two sentences. This would, therefore, mean that a party making an objection under (b) had to qualify first as an applicant under (b). If this were the case, then it would mean that a third party, such as a community based organisation, aggrieved by a decision of NTSA would be unable to object to the issuance of a license. It is noteworthy that the administrative acts of NTSA, which is a public body, are subject to the scrutiny of the Constitution under Article 47, which guarantees the right to fair administrative action. This article falls under the bill of rights, whose enforcement is provided for under Article 22 and which provides that:

“22. (1) Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened. (2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by— (a) a person acting on behalf of another person who cannot act in their own name; (b) a person acting as a member of, or in the interest of, a group or class of persons; (c) a person acting in the public interest; or (d) an association

28. Interpreting section 38 (1) (a) and (b) in a manner that would exclude third party objectors who are not applicants for license would clearly offend Article 22 of the Constitution. Besides, construing an objector as the same person as an applicant could mean that a person could apply for a license and then object to its issuance,a scenario that is not feasible. We find that the applicant and objector, as envisaged under Section 38, are two different persons.

29. KMO, as an objector, has the standing to make an appeal to the Transport Licensing Appeals Board under section 38 (1) (b). Whether KMO succeeds or not is a totally different matter to be determined in the main trial.

30. NTSA relied on the cases of Kangema Travellers Sacco and Four Others v NTSA and Namu Supreme Shuttle Limited (TLAB Case No. 22 of 2019) and Rukagina 44 Sacco Ltd v Sunbird Services and NTSA (TLAB Case No. 6 of 2018) to argue that they had the discretion to make a decision without reference to other operators. In these cases, the Appellants were challenging the discretionary power of NTSA to make a decision without reference to other road operators. The issue at hand in this preliminary objection was rather different and was concerned with the question of whether a third party could object to the issuance of a license. As such, the authorities cited do not answer this question.

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

1. THAT the preliminary objection dated 23rd October 2020 is dismissed.

2. THAT KMO, as an objector, has the standing to make an appeal to the Transport Licensing Appeals Board under section 38 (1) (b).

3. THAT each party bears its own costs.

DELIVERED, DATED, AND SIGNED IN NAIROBI BY THE TRANSPORT LICENSING APPEALS BOARD ON THIS 26TH DAY OF MARCH 2021.

Dick Waweru Chairman ……………………….

Aden Noor Member ……………………….

Moses Parantai Member ………………………..

Prof. Kiarie Mwaura Member ………………………..