[2022] KETLABT 785 (KLR)

Karoki v National Transport and Safety Authority (Appeal 019 of 2022) [2022] KETLABT 785 (KLR) (7 September 2022) (Judgment)

Neutral citation: [2022] KETLABT 785 (KLR)

Republic of Kenya

In the Transport Licensing Appeals Board Tribunal

Appeal 019 of 2022

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

September 7, 2022

Between

George Mwangi Karoki

Appellant

and

National Transport and Safety Authority

Respondent

Judgment

Introduction 1. The Appellant is a holder of a BCE license issued by the Respondent. He has been driving under the license for the last 33 years.

2. The 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.

Appellant’s Case 3. As way back; as May 11, 1993; the Appellant had obtained licence to enable him drive a PSV vehicle. To prove this, point the Appellant attached a license to drive a PSV vehicle E Noxxxx this license was valid for 2 years to May 10, 1995.

4. The Appellant further renewed the license to drive a PSV vehicle on July 14, 1995 and received a license E No xxxx which was valid till July 13, 1997.

5. The Appellant attached a copy of driving license No C xxxx issued on July 18, 2008 which showed clearly that the Appellant was authorized to drive belonging to class ABCE (class A being the PSV category).

6. The Appellant avers that some time on August 1, 2021 when he went to the Appellant for his driving license to be endorsed, the Appellant endorsed class BCE on his license No C xxxx leaving out class A which would authorize the Appellant to drive PSV vehicles.

7. The Appellant was therefore apprehensive to apply for a Smart DL has it would come out without the Class D2 stamp/endorsement on his driving license in order for him to drive class D2 vehicles.

8. The Appellant argued that since his licence had a class A stamp on top of the BCE stamps, the regulations allow him to drive D2 vehicles without going back to school as proposed by the Respondent because class D2 is equivalent to class A, which he had in his licence.

9. The Appellant asked for the upgrade of his driving licence to card system and his licence data to be updated with class D2 endorsement without him going back to driving school.

10. The Appellant produced copies of his driving licence for the years 1993 up to 2021. He also produced a copy of the original driving licence.

11. Finally, the Appellant averred that the Respondent’s failure to endorse for him a class A or D2 on his license has made him lose income and the requirement by the Respondent imposed on him to go back for a driving test was unreasonable since he has over 33 years’ experience and in any case he has been previously had the same endorsed by the Respondent.

Respondent’s Case 12. The Respondent Authority argued that the class A endorsement carries a lot of public expectations and for abundance of caution it would be important for the Appellant to go back to a driving school so that the Authority can be confident with the endorsement. This the Authority argued that public safety is of greater public interest.

13. The Respondent further argued that since as the Appellant claims to be a driver for more than 33 years this short driving school test would not be a problem to the appellant. The Authority even offered to link up the Appellant with Registered driving schools within Eldoret or Nakuru.

14. To support the argument, the Respondent relied on Section 13,14 and 17 of the Traffic Rules (under Section 119 of the Traffic Act) as read together with Section 31 of the Traffic Act.

Determination 15. Following the arguments made and evidence adduced by the parties before the Transport Licensing and Appeals Board during the trial, the Board has extrapolated the following issues for determination whether:1. The Appellant has adduced enough evidence to prove that he had a class A stamp on his driving licence to enable him drive D2 vehicles and whether he is entitled to class D2 endorsement on his driving licence.2. The National Transport and Safety Authority infringed on the appellant’s right to fair administrative action when it made the decision that the Appellant should go back to driving school for class D2 endorsement on his licence.

Whether enough evidence has been adduced by the appellant 16. The Appellant has proved that he has been driving for more than 33 years and that hence above 24 years, which makes him entitled to a class D2 endorsement. He has therefore satisfied the conditions enumerated under section 33 of the Traffic Act, Chapter 403 of Laws of Kenya. Section 33(1) of the Traffic Act states that1. "No driving licence or provisional licence shall be granted to any personi.under the age of sixteen years;ii.under the age of eighteen years, except in respect of motorcycles; oriii.endorsed in respect of matatus and motor-omnibuses, unless hea.is over the age of twenty-four years; andb.has for not less than four years held a licence endorsed in respect of motor-cars or commercial vehicles:Provided that any person who satisfies the licensing officer that he has, before the commencement of this Act, been in possession of a licence authorizing him to drive a motor vehicle in Kenya shall, subject to subsection 2 of section 31, notwithstanding the provisions of this section, be entitled to receive a licence in respect of the same class or description of vehicles which he is by such licence authorized to drive."

17. The Appellant has also furnished copies of his driving licence from when he was first issued with one in 1993 to 2021. The driving licence dated July 18, 2008 and which expires on July 17, 2009 bears a signature against class A which according to the regulations is equivalent to class D2. This is in line with Section 30 of the Traffic Act which states that"1. No person shall drive a motor vehicle of any class on a road unless he is the holder of a valid driving licence or a provisional licence endorsed in respect of that class of vehicle.2. No person who owns or who has charge of a motor vehicle of any class shall cause or permit any person to drive such motor vehicle unless such person is the holder of a valid driving licence or a valid provisional licence endorsed in respect of that class of motor vehicle.3. No person shall be entitled to more than one driving licence, but a driving licence may be endorsed to permit the holder to drive one or more classes of motor vehicle. (emphasis added).4. Driving licences shall be issued, and upon expiry renewed on production, by a licensing officer upon payment of the prescribed fee, and a driving licence so issued or renewed may be expressed to be valid for a period of three years, from the date of issue or renewal."

18. Further Section 82 of the Traffic states whose sub-heading reads “Particulars of endorsement to be inserted in new licence.” Categorically statesOn the issue of a driving licence or provisional driving licence to any person, the particulars endorsed on any previous licence held by him shall be inserted in the new licence, unless he has previously become entitled under section 84 to the issue of a licence free from endorsement.

19. Section 82 (supra) is couched in simple straight forwards terms and it does not impose additional requirements for applicants to go back to a driving test or school. If there were such intention, then nothing would be easier than for the legislature to include that requirement in the Act.

20. The TLAB also considered Section 13,14 and 17 of the Traffic Rules as submitted by counsel for the Respondent and observed that Section 13 applies to new applications and Section 14 applies to a person who is applying to a new class for the first one. But nothing in those sections suggest that a person who previously held a certain class would be required to do another test in order to get the same endorsement on renewal of a license or during transition from normal DL to smart DL.

21. The Appellant is thus entitled to a class D2 endorsement on his driving licence by virtue of having met all the requisite requirements namely: proof of having to driven such vehicles for 4 years; that he is above 24 years and that his latest driving licence has a class A stamp which is similar to class D2.

Whether NTSA has violated the appellant’s right to fair administrative action 22. Article 47 of the Constitution of Kenya, 2010 posits that “Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.” Section 4 of the Fair Administrative Action Act, 2015 equally reiterates that “Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.” The decision by the National Transport and Safety Authority that the appellant should return to driving school for him to get class D2 endorsement was not backed by any law and was unreasonable because it would be illogical for the appellant to go back to driving school yet he had requisite driving skills and had a class A stamp on his driving licence which carried the same weight as a class D2. The decision was therefore illegal and contravened article 47 of the Constitution of Kenya, 2010 and section 4 of the Fair Administration Act, 2015.

23. The Appellant was right in bringing this appeal before the board claiming his rights were infringed by dint of section 7(1) of the Fair Administrative Action Act, 2015 which states that:“Any person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision to:a.A court…; orb.A tribunal in exercise of its jurisdiction conferred in that regard under any written law."

24. The board finds the decision of the respondent authority to have been illegal, unreasonable and contrary to the right to fair administrative action of the appellant as per sections 7(2) (d)(f)(k). The Act posits that(7)(2)A court or tribunal under subsection (1) may review an administrative action or decision, if-(d)the action or decision was materially influenced by an error of law;(f)the administrator failed to take into account relevant considerations;(k)the administrative action or decision is unreasonable;"

25. The rules of administrative law to which the National Transport and Safety Authority is bound as an administrative organ serving members of the public are legality, proportionality, legitimate expectation, duty to give reasons, reasonableness and public participation or consultation. NTSA in making its decision against the Appellant violated some of these principles which are key in ensuring efficient and effective service delivery by administrative organs. It made a decision that did not meet the legitimate expectation of the Appellant and which was not only illegal but also unreasonable. The legitimate expectation of the appellant was that since he had met the statutory requirements to be given class D2 endorsement and that he already had a class A stamp on his driving licence which is equivalent to class D2, his driving licence would be updated with a class D2 endorsement without him being necessarily required to go back to driving school. This board finds the decision of the National Transport and Safety Authority to be wrong, null and void pursuant to section 7(2) (m) which avers that“A court or tribunal (Transport Licensing Appeals Board sits as a tribunal or quasi-judicial body) may review an administrative action or decision, if the administrative action or decision violates the legitimate expectations of the person to whom it relates.”

26. Having considered the facts, evidence adduced and the relevant law, the Transport Licensing Appeals Board hereby makes the following orders:1. That the Appellant has proved to the satisfaction of this board that he has class A stamp on his driving licence; that he is over 33 years and has been driving for over four years hence he is entitled to class D2 endorsement which will enable him drive class D2 vehicles.2. The Respondent to give the Appellant a PSV badge as a driver,3. The Appellant to officially apply for smart DL and the Respondent to ensure that the class D2 together with the corresponding classes which were previously ABCE are endorsed in the newly to be issued Smart DL.4. That the Appellant’s right to fair administrative action was infringed.5. That the Appellant is entitled to the endorsement of class D2 in his licence and should use this order as proof of the entitlement.6. That NTSA should update the Appellant’s driving licence with class D2 endorsement within seven (7) days of this order.7. That the order be served upon NTSA and the Traffic Commandant.

DELIVERED, DATED, AND SIGNED IN ELDORET BY THE TRANSPORT LICENSING APPEALS BOARD ON THIS 7TH DAY OF SEPTEMBER 2022. Dick Waweru Chairman ............James Ngomeli Member ............Lilian Waithera Member ...........Maryan Hajir Member ..............Joseph McDonald Member ...........