[2022] KETLABT 780 (KLR)

Kangemi Matatu Owners Sacco Society v National Transport and Safety Authority & 2 others; Westlands Watch for Peace, Gender & Development & 2 others (Interested Parties) (Appeal 7 of 2020) [2022] KETLABT 780 (KLR) (Civ) (12 October 2022) (Judgment)

Neutral citation: [2022] KETLABT 780 (KLR)

Republic of Kenya

In the Transport Licensing Appeals Board Tribunal

Civil

Appeal 7 of 2020

Dick Waweru, Chair, James Ngomeli, Lillian Waithera, Maryan Hajir & Joseph Mcdonald, Members

October 12, 2022

Between

Kangemi Matatu Owners Sacco Society

Appellant

and

National Transport and Safety Authority

1st Respondent

Latema Travellers Bus and Safaris Ltd

2nd Respondent

Nairobi City County

3rd Respondent

and

Westlands Watch for Peace, Gender & Development

Interested Party

Kagemi Boda Boda Association

Interested Party

Digital Luxury Travellers Co.Ltd

Interested Party

Judgment

Introduction 1. The Appellant is a Sacco that is registered under the Co-operative Societies Act (Cap 490) and has been duly licensed by National Transport and Safety Authority (herein after referred to as “NTSA”), the 1st Respondent to operate service vehicles.

2. The 1st Respondent-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 1st Respondent to operate public service vehicles.

4. The 3rd Respondent is a County Government established under the County Government Actof 2012. It has the mandate to manage the devolved function of county transport under Schedule 4 of the Constitution of Kenya. Under Section 72A (1) (a) and (b) of the Traffic Act cap 403 Laws of Kenya the 3rd Respondent is mandatedinter alia to designate parking places on roads, within its area of jurisdiction for vehicles or vehicles of any particular class or description, having regard to both the interests of traffic and the interests of owners and occupiers of adjoining property; and prescribe the manner in which vehicles shall stand in or be driven into or out of the designated parking place

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.

The appellant’s case 7. The Appellant Kangemi Matatu Owners Sacco Society (herein after referred to as “KMO”) had lodged an appeal at the Transport Licensing Appeals Board (herein after referred to as “TLAB”) on July 10, 2020 seeking a permanent injunction restraining Latema Travellers Bus Ltd (herein after referred to as “LTB”) from operating in Kangemi shopping centre. It was the contention of KMOthat NTSAhad extended the route of LTB, to include Kangemi, without following the required procedure as provided for in theNTSA Act, which led to chaos erupting in Kangemi.

8. From the amended Memorandum of Appeal dated September 10, 2020; the Appellant was challenging the decision of the 1st Respondent dated February 25, 2020; on the ground that the impugned decision contravened Article 47 of the Constitutionas read together with the provisions of section 4 (3) of theFair Administrative Act.

9. The Appellant further averred that the impugned decision of the NTSAwere issued without due regard to Section 29 of the NTSA ActNo33 of 2012 which requires the 1st Respondent in mandatory terms to 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 before issuing a licenses. To buttress this point, the Appellant averred that the impugned licensed route was already congested and issuing a license to the 2nd Respondent (LTB) to operate in the same route was a recipe for chaos and anarchy.

10. Lastly the Appellant contended that the impugned decision was athwart to the rule of natural justice, hence the NTSAwas offensive and violates the same.

NTSA-The 1st respondent’s case 11. The 1st Respondent relied on the Affidavit of Mr Christopher Wanjau who is the Director Registration and Licensing, dated September 21, 2021.

12. He averred that the 1st Respondent received an application by the 2nd Respondent dated February 10, 2020 requesting for route extension to Kangemi-James Gichuru-Lavington-Kawangware-kabiria-Ngong-road Kenyatta Avenue- Odeon together with the relevant route sketch diagram as required by law.

13. He further averred that the 1st Respondent received from the 2nd Respondent in their application for route extension as stated above, a letter of no objection from the Nairobi City County department of Roads, Transport and Public Works (The 3rd Respondent) which allowed the 2nd Respondent to operate in Kangemi.

14. He further deponed; that consequently as a result of the above the Authority (1st Respondent) deliberated on the 2nd Respondents application for route extension and granted the route extension, as all the mandatory documents required for the route extension had been adhered to and, issued a letter to that effect dated February 25, 2020 (the impugned decision).

15. He further averred that the Authority had licensed both the Appellant,2nd Respondent and the 3rd Interested Party herein, upon fulfilling the mandatory requirements as set out in Regulation 6 of the (Operation of the Public Services Vehicles), Regulations ,2014 and their licenses has not been suspended or revoked.

16. He further averred that the appellant has not demonstrated to the honorable tribunal how they would be adversely prejudiced by the authority granting an extension of route to another operator upon fulfilling the required mandatory requirements.

17. Further to the above, the authority stated that the requirements that were subjected to the 2nd respondent herein in its application for route extension were the same requirements that is subjected to all public service vehicles operators and company’s who wish to have their route extended and will be the same requirements that will be meet by the appellant in future if, they ever apply for route extension.

18. He further stated that the authority wrote to the officer in charge traffic muthangari police station who had requested for route clarification of the 2nd respondent herein in a bid to ensure compliance and ensure that each party herein adheres to their routes of operation.

19. Drawing from the above point the Authority further averred two pointsa.That the Authority function is to license an operator upon fulfilling the statutory and mandatory conditions as set out in the NTSA ActNo33 of 2012 and all its enabling legislations and not to enforce and maintain order on Roads as the Authority does not have enforcement powers to maintain law and order on the roads as the same was a preserve of the Kenya Police by virtue of Section 54 of the National Police Service Act.b.That the assertion by the appellant that as a result of the authority licensing and extending the route of the 2nd respondent herein upon fulfillment of the mandatory and statutory requirement it has caused anarchy and chaos in Kangemi was therefore false and baseless, since it is the mandate of the Traffic Police to ensure peace and order upon being licensed by the Authority.

20. In conclusion the 1st Respondent averred that the Authority has no requirement under the law to consult another operator before granting an extension of the route to a different operator, as the Authority has the discretion to grant, suspend and issue a license to any operator independently by dint of Section 4 (1) (c) ,(d) and 29 of theNTSA Act No33 of 2012 upon fulfillment of the mandatory requirements as provided for under the Act and Regulation 6 of the (Operation of Public Service Vehicles) Regulations,2014.

Latema travellers bus and safaris ltd-the 2nd respondent’s case. 21. LTBthe 2nd Respondent relied on the Replying Affidavit deponed by Mr Simon Kinyanjui who is one of the Directors of LTBdated September 13, 2021.

22. The Affidavit mirrored to a large extent the facts that were stated above by the 1st Respondent.

23. In addition to the factual issues already stated the 2nd Respondent further averred three important pointsa.That the 1st Respondent had already given route extension to other Operators e.g. Welkan Sacco and therefore denying them an extension would be discriminatory to them.b.There are other operators on the Kangemi route e.g. Star Bus Sacco, Welkan Sacco and Cosy Travelers Sacco and Latema was not the only operator and it would be unfair to single them out.c.That matatu terminus are a shared public facility and there are rules to ensure that all operators share the facility without causing chaos; but denying operators a license is not the solution.

Nairobi city county-the 3rd respondent’s case 24. The 3rd Respondent countered the assertion of the Appellant through a statement of defence dated June 21, 2021.

25. The gist of the defence was that they issued a letter of no objection to the extension of the route in accordance to their mandate and in accordance to the law; taking into consideration the interest of the residents of Nairobi.

26. Secondly the 3rd Respondent denied that they were influenced or under control of any other office as alleged by the Appellant.

27. Lastly the 3rd Respondent stated that the Appellant has not demonstrated that he has any triable issues and hence the suit was fatally defective. In conclusion the 3rd Respondent averred that the Appellant is coming to the Honorable with unclean hands since the Appellant has other suits pending in the Tribunal having similar facts.

The case for the 1st ,2nd and 3rd interested party. 28. The gist of the 1st ,2nd and 3rd Interested Party case is that they are in support of the Appeal, resting on the Affidavits of Mrs Betty Njeri Hamud Chair Lady Westlands Watch for Peace, Gender & Development and Mr Charles Okubasu Chairman Kangemi Boda Boda Association.

29. In support of the Appeal the interested parties aver that that the Route extension was done without considering the public, conducting public participation and the conditions attached to the RSL are being flaunted by the 2nd Respondent.

30. The 1st Interested Party presented various minutes of meetings held by stakeholders in order to decongest Kangemi. For example, on February 19, 2021; minutes annexed as “BNH3” where it was unanimously resolved in the ACC office and MPs office should work closely in identifying alternative place for the people on the road reserve.

31. The interested party further stated that the 2nd Respondent violated the conditions for the RSL by unreasonably encroaching, and forcefully entering and remaining in the township which is not a designated picking point; which violation has resulted into complete anarchy, congestion and disorder within Kangemi Township Area.

32. The 2nd Interested Party stated that its members operate at the flyover and on a road reserve adjacent and directly opposite to where the Appellant and the 3rd Interested Party operate; he further deponed that upon receiving a route extension the 2nd Respondent embarked on what he terms as unlawful conduct by encroaching on areas designated for Boda Boda Operators and venturing into the residential areas causing tension amongst the operators.

33. The 3rd Interested Party; applied to be enjoined into the case through the Affidavit of Stanley Gacheru and secondly through an application invited the TLABto visit the Kangemi area to make an assessment, further the 3rd Interested Party provided pictures to show how the 2nd Respondent was using violence to intimidate the 3rd Interested Party.

Parties submissions Appellant’s submissions. 34. The Appellant was represented by the firm of Ngure Mbugua and Company Advocates. Mr Masaviru held brief for Mr Ngure and highlighted the submissions on open court.

35. The Appellant submitted that despite objecting the granting of license to the 2nd Respondent by the 1st Respondent they were never given a chance to be heard.

36. As a result, the Authority acted contrary to the laws of Natural Justice, Section 29 of theNTSA Act and Article 47 (1) and (2) of the Constitutionas read together with Section 4 (3) of theFair Administrative Act,2015.

37. Counsel relied on the caseJudicial Service Commission v Mbalu Mutava & Another[2015] eKLR, Civil Appeal 52 of 2014.

38. On the issue of natural justice counsel relied on the following cases Republic v Registrar of Companies Ex parte Githungo[2001] KLR 299;Onyango Oloo v Attorney General [1986-1989] EA 456; General Medical Council v Spackman [1943] 2 ALL ER 337; R v Vice Chancellor JKUAT Misc Application No30 of 2007 andRidge v Baldwin [1963] 2 AER 66 AT 81.

39. The consistent thread running across the above-mentioned cases is that the laws of natural justice requires that a person who might be affected by an administrative acts, decisions or proceedings must be given adequate notice of what is proposed and a chance to be heard and secondly that decisions given without adhering to the principles of Natural justice are void ab initio.

40. Counsel for the Appellant further submitted that a close reading of Section 29 of the NTSA Act requires the Authority to take into consideration the interests of the public.

41. On whether the Kangemi Route is congested the Counsel for the Appellant submitted that there have been several meetings held with stake holders and it was generally agreed that the route was congested and that the stake holders had agreed that no further Matatu Sacco should be licensed to operate on the said route since this would escalate the problem.

NTSA -The 1st respondent’s submission 42. NTSAthe 1st Respondent did not have written submissions nor highlight the same in open court; however, they entirely relied on their Replying Affidavit deponed by Mr Christopher Wanjau who is the Director Registration and Licensing, dated September 21, 2021. Captured at paragraph 11-19 above.

43. In essence the 1st Respondent opposed the appeal.

Latema Travellers Bus and Safaris Ltd-The 2nd Respondent’s Submissions 44. Latema travellers bus and safaris ltd-the 2nd respondent was represented by the firm of Waruiru, Karuku and Mwangale Advocates who filed submissions dated September 13, 2021 in support of the Replying Affidavit by Mr Simon Kinyanjui deponed on the same date.

45. Ms. Mkobi held brief for Mr Waruiru and highlighted the submissions; which were in essence in opposition of the appeal.

46. To answer the question as to whether the 2nd Respondent followed the proper procedure to be granted a license.; Ms Mkobi for the 2nd Respondent submitted that Section 29 of the NTSA Act No33 of 2012 gives the Authority discretion to grant or suspend a license and that further that the procedure that the Appellant used to acquire its license were the same ones used by the 2nd Respondent.

47. Counsel further submitted that there is no requirement in law for the Authority to consult other operators prior to granting a license. To support this claim counsel relied on Kangemi Travellers Savings & Credit Co-operative Society Limited & 4 Others v NTSA -TLABAppeal Case No022 of 2019 where the Tribunal stated that the authority has the discretion to grant, suspend and issue a license to any operator by virtue of Section 29 of the Act.

48. Counsel for the 2nd Respondent submitted that the orders sought by the Appellant are injunctive in nature and the Appellant has not demonstrated that he has meet the threshold to be granted the same orders.

49. To support the above argument Counsel relied on the cases Nguruman Limited v Jab Bonde Nielsen & 2 Others[2014] eKLR and Mraov First American Bank of Kenya Ltd & 2 Others which creates a 3-legged threshold in order to be granted an injunctive ordera.One has to show a prima facie case with probability of success.b.Show that they will suffer irreparable damages.c.If the court is in doubt as to whether a prima facie case has been established then it decides in a balance of probability.

50. Counsel further submitted that the orders sought by the appellant were permanent, mandatory and perpetual and this required higher threshold which the appellant has failed to demonstrate. To support this, point the Counsel relied on the two cases cited as Robai Kadili Agufa & Another v Kenya Power & Lighting Co Ltd [2015] eKLR and Morris v Redland Bricks Ltd [1970] AC 652.

51. The Counsel also submitted that the issue in dispute was civil in nature between the Appellant and the 2nd Respondent and that the 1st Respondent was not party to the issues being raised by the Appellant. As a result, therefore, the honorable Tribunal had no jurisdiction to hear this matter.

52. In relation to the Point above it was noted that the issue of jurisdiction had already been dispensed with and that it was ruled that TLAB has jurisdiction to entertain the matter at hand.

Nairobi city county-the 3rd respondent’s submission 53. The 3rd Respondent were represented by the firm of Achoki & Associates.

54. Nairobi city county the 3rd respondent did not have written submissions nor highlight the same in open court; however, they entirely relied on their Statement of Defence dated June 21, 2021. Captured at paragraph 23-26 above.

55. In essence the 3rd Respondent opposed the Appeal.

The 1st and 2nd interested party’s submission 56. The 1st and 2nd Interested Party were represented by the firm of Masaviru and Ketoo Advocates and highlighted in open court by Counsel Mr Masaviru.

57. In essence the 1st and 2nd Interested Party were in support of the Appeal.

58. Counsel submitted that the granting of the license to the 2nd Respondent had aggravated an already dire problem of congestion within Kangemi Township.

59. The 1ST Interested Party and the 2nd Interested party illustrated how they have been affected by the entry of the 2nd Respondent to the route.

60. Counsel further submitted that the 2nd Respondent violated the conditions for the RSL.

61. From a legal point of view Counsel submitted that the Authority who is the 1st Respondent is required to take into consideration public interest by dint of Section 29 of the NTSA ActNo33 of 2012; which the 1st Respondent totally failed to do so.

62. Counsel submitted that the Authority is bound by the rules of Administrative Law such as legality, proportionality, legitimate expectation, duty to give reasons and reasonableness. Counsel cited Martin G Kihara v NTSA [2020] eKLR.

63. Further by not consulting the relevant stakeholders and ignoring public interest the 1st Respondent act athwart to Article 47 (1) and (2) of the Constitution as read together with Section 4 (3) of the Fair Administrative Act ,2015 and Section 29 of the NTSA Act No33 of 2012.

64. The upshot of the above, Counsel contended that the actions of the 1st Respondent were a violation to the rules of natural justice and hence the impugned decision of the 1st Respondent was void ab initio.

65. To support the above point Counsel cited the case of Gakanango Sacco v. NTSA [2019] eKLR; General Medical Council v Spackman [1943] 2 ALL ER 337; R v Vice Chancellor JKUAT Misc Application No30 of 2007 and Ridge v Baldwin [1963] 2 AER 66 AT 81.

Digital luxury travellers co. ltd-the 3rd interested party’s submissions 66. The 3rd Interested Party was Represented by Messer J. Harrison Kinyanjui &Co. Advocates. Mr Kinyanjui highlighted his submissions in open court.

67. To a large extent Mr Harrison aligned with the submissions of the 1st and 2nd Interested Party.

68. Counsel submitted that contrary to Section 29 of theNTSA Actthe 1ST Respondent did not take into consideration the public interest as required by law. He further demonstrated that the fact that there are 3 interested parties in opposition of the granting of the license to the 2nd Respondent is sufficient proof that involvement of stake holders was necessary.

69. Further Counsel submitted that our constitution has already cemented in no uncertain terms the need for public participation as a national value under Article 10 (2) (b) and the onus of proving or burden of proof that there was indeed public participation lies with the 1st Respondent.

70. Counsel submitted the mandatory nature of Article 10 (2) (b) of the Constitutionautomatically creates a legitimate expectation for public participation from key stake holders.

71. Counsel also submitted that the letter of no objection issued by the 3rd Respondent Nairobi City County does not in any way over ride the need for public participation or views of other operators and stake holders.

72. He reiterated that NTSAand NCC ought to have involved all stake holders before granting the license.

73. Failure to conduct public participation to stake holders; makes the decision by the 1st and 3rd Respondent to be ultra vires. Counsel lamented that the systemic failure of administrative bodies to conduct public participation was a breeding ground for corruption which is a major problem in Kenya.

74. To counter the argument that there was no loss suffered by the Appellant and the interested parties by the grant of the license; Counsel submitted that there was increased traffic jam which caused great inconvenience and that the additional license granted to the 2nd Respondent strained the financial resources of the 3rd Interested parties and the Appellant and they have loans to pay.

75. Counsel also lamented the hooliganism, violence, lawlessness, chaos and anarchy perpetrated by agents hired by the 2nd Respondent and meted upon the persons and property of the 3rd Interested party.

76. In conclusion Counsel contended that the grant of license to the 2nd Respondent by the 1st Respondent and the Letter of no Objection by the 3rd Respondent suffered a procedural deficit by want of public participation and the impugned decision did not follow the letter of the law hence the decision is ultra vires.

Issues 77. The Appellant and the 3 interested parties have argued that the 1st Respondent; the Authority is required by the ConstitutionArticle 10 (2) (b); Article 47 (1) (2); Section 4 (1) and (3) (a) and (b) of the Fair Administrative Action Act,2015, Section 29 of the NTSA Act No33 of 2012 and rules of natural justice -to inter alia conduct public participation or at least involve stakeholders before making its decisions.

78. On the other hand, the 1st Respondent and the 2nd Respondent have made a case arguing that Section 29 of NTSA Act No33 of 2012 gives it discretion without reference to any person or authority to grant, deny or suspend a license.

79. In light of the above two juxtapositions, we have carefully considered the background of this case, the pleadings, all submissions, cited authorities, arguments made, evidence adduced, issues raised and the law as submitted by the parties before the Transport Licensing and Appeals Board during the trial, the Board has extrapolated the following singular issue for determination.

Whether vide section 29 of the NTSA Act No33 of 2012-NTSA ought to have involved the stake holders before granting the license to the 2nd respondent? 80. Section 29 of theNational Transport Safety Authority Act No33 of 2012 states29. Discretion of authority to refuse licencesThe 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:Provided that the Authority shall, before granting any road service licence in respect of any vehicle for the carriage of passengers from, through or into, the area of jurisdiction of any County, consult and have regard to the laws of the County relating to the place in the area of such County at which the vehicle may stop or start and the route to be taken by such vehicle.

81. Section 29 of the NTSA Act No33 of 2012 gives NTSAdiscretion to grant or decline any application for a license subject to certain conditions. These conditions are to be found under Section 5,6 and 7 of theNational Transport and Safety Authority (Operation of Public Service Vehicles) Regulations, 2014; such that if an operator meets this criterion then the Authority can grant a license.

82. The NTSAis also required to consult the area of jurisdiction of any county and the laws of the County relating to the place in the area of such County at which the vehicle may stop or start and the route to be taken by such vehicle; it is for this reason NTSAwrote to the 3rd Respondent the Nairobi City County and got a letter of No Objection before granting the license.

83. Under the same Section 29 of theNTSA Actthe law stipulates a caveat in the discretionary powers granted to the Authority it states inter alias“…..the Authority shall have regard to the public interest, including the interest of persons requiring and those persons providing facilities for transport and to such other matters as may be prescribed.”

84. Two questions beg for answer in the above provisioni.How does NTSAregard public interest? or how can NTSAdemonstrate that it took into consideration public interest before granting the license?ii.Who is the public referred to Under Section 29 of theNTSA Act?

85. In the South African Supreme Court of Appeal in the case of mic-offences-v-hyundai-motors-distributors-ltd Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd: In re Hyundai Motor Distributors (Pty) Ltd v SmitNoand [2000] cited with authority in Republic v Public Procurement Administrative Review Board & 2 others Ex-Parte Pelt Security Services Limited[2018] eKLR (Judicial Review Number 74 of 2018) the Court observed that“All statutes must be interpreted through the prism of the Bill of Rights. “This statement is true of decisions made by statutory bodies and State organs. The governing statute and the resultant decision must be interpreted through the prism of Article 47 of the Constitution. It is beyond argument that Article 47 codifies every person's right to fair administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. (Article 47 (1) of the Constitution). Our constitution recognizes a duty to accord a person procedural fairness or natural justice when a decision is made that affects a person’s rights, interests or legitimate expectations.

86. From the above it is imperatively clear that where there is doubt as to the interpretation of Section 29 of the NTSA Act the best fall back plan is to interpret it within the prism of the constitution and the Bill of Rights.

87. Article 47 (1) and (2) of the Constitutionstates47. Fair administrative action1)Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.(2)If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.

88. To give effect to Article 47 of the Constitution Parliament enacted The Fair Administrative Action Act ,2015. Section 4 of the FAAreads4. Administrative action to be taken expeditiously, efficiently, lawfully etc(1)Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.(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)prior and 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.

89. NTSAought to have at least consulted the persons who were to be affected by these decisions as a matter of natural justice and administrative fairness.

90. Another constitutional principle that now is enshrined as a national value is one of public participation. In the South African Case of Doctors for Life International v. Speaker of the National Assembly and Others (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) the court appreciated the importance of Public Participation in legislation as here under“If legislation is infused with a degree of openness and participation, this will minimise dangers of arbitrariness and irrationality in the formulation of legislation. The objective in involving the public in the law-making process is to ensure that the legislators are aware of the concerns of the public. And if legislators are aware of those concerns, this will promote the legitimacy, and thus the acceptance, of the legislation. This not only improves the quality of the law-making process, but it also serves as an important principle that government should be open, accessible, accountable and responsive. And this enhances our democracy.”

91. In Ombati v Chief Justice & President of the Supreme Court & another; Kenya National Human Rights and Equality Commission & 2 others (Interested Party)(Petition E242 of 2022) the High Court in Kenya statedPublic participation bound all state organs, including the Supreme Court when, inter alia enacting law. Regardless of the nature of the impugned Rules and the fact that the power to make them flowed directly from the Constitution, the letter and spirit of the Constitution had to be upheld in the process of enactment. Any rules made by any entity had to be in conformity with the Constitution.

92. The Court further statedWhenever a challenge was raised, every agency was required to demonstrate what it had done in compliance with its duty to facilitate public participation in a given case.

93. In this regard I agree with Counsel for the 3rd Interested Party that NTSAhas the onus to prove that it did public participation or how they considered public interest as per Section 29 of the Act; which they did not adduce the necessary evidence.

94. The NTSAdid not conduct public participation in any form or shape, before the granting the license to the 2nd Respondent. That was contrary to the requirement under articles 10 and 232 of the Constitutionand Section 29 of the NTSA Act, to afford reasonable opportunity to persons likely to be affected by the impugned decisions, such as neighborhood associations, other operators, boda boda associations and the public, to voice and perhaps have incorporated in the decision making, their concerns, needs and values.

95. There is an argument that, the other operators were issued licenses using the same criteria and it would be discriminatory to subject the 2nd Respondent to public interest/public participation requirements this argument is flawed.

96. The issue of whether to do public participation or consider public interest is a matter of law and not fact, however whether public interest was considered or public participation was done is matter of fact which needs to be demonstrated, unfortunately the authority did not demonstrate how they considered public interest as per Section 29 of the NTSA Act.

97. Hence it is immaterial that previously other operators have been granted the license using the same procedure including the appellant; thereto had been granted without public participation.

98. Any decision made by an administrative body that is likely to affect many parties and stakeholders had to always accord with the Constitution, failing which the same could not stand. There was no exemption given under the Constitution, to NTSAfrom complying with the provisions of article 10(1) and Section 29 of the Act.

Dissenting opinion 99. The dissenting opinion was premised on the following pointsi.That Section 4 (1) (c) and (d) of the NTSA Act 2012 gives the authority the mandate to plan, manage and regulate the road transport system in accordance with the provisions of this Act; and also to ensure the provision of safe, reliable and efficient road transport services. Further to this, it also has the authority to register and license motor vehicles. The mandate for planning, managing, and regulating the road transport system is not shared with Saccos. And requiring the authority to consult other Saccos would be impractical since; to avoid competition most of the existing Saccos would place stumbling blocks to other investors in the industry. This will contra to business efficacy.ii.The dissent further opined that the Appellant and the Interested Parties did not tender any evidence to show that the Second Respondent did not meet the licensing requirements to warrant the cancellation of their license. The dissent observed section 29 gave NTSAdiscretional powers, after reviewing the license applications to grant and not.iii.The dissent also opined that theNTSA Act and the attendant regulations have already been subjected to public participation and as such there was no need for further public consultation; for every decision NTSAmakes. Such a requirement would groundNTSA’s operations to a halt.iv.The dissent also observed that it will be discriminatory application of the law to subject the license of one operator to public participation whereas the other operators on the same route were not subjected to the same.v.Lastly the dissent noted that the public interest alluded under section 29 of the Actdoes not automatically warrant public participation. The authorities might have other ways internally to ensure that the interest of the public are taken care of.vi.To support his position, the dissent relied on the case of Kamuna Sacco& Kangema Travellers Sacco v NTSA & Namu Shuttle Supreme Ltd –TLABAppeal Case No 059 of 2017

Conclusion and orders 100. Having considered the facts, evidence adduced and the relevant law, the Transport Licensing Appeals Board hereby makes the following orders:1. That the Appeal succeeds by a majority decision.2. That the impugned decision made by the Authority dated 25th February 2020; granting the 2nd Respondent an extension of the Route to cover Kangemi-James Gichuru – Lavington – Kawangware – Kabiria - Ngong Road Kenyatta Avenue- Odeon is hereby revoked until effective stakeholder’s engagement is done.3. Sub-County Police Commander, the Officer Commanding Police Station, the Assistant County Commissioner, overseeing Kangemi area, to effect the orders.4. Each party to bear its cost.5. It is hereby so ordered.

DELIVERED, DATED, AND SIGNED IN NAIROBI BY THE TRANSPORT LICENSING APPEALS BOARD ON THIS 12TH DAY OF OCTOBER 2022. Dick Waweru Chairman ………………………James Ngomeli Member ....................................Lialian Waithera Member ………………………Maryan Hajir Member ………………………Joseph McDonald Member ……………………….