[2023] KETLABT 680 (KLR)

Kimani v National Transport & Safety Authority (Appeal TLAB/E010 of 2022) [2023] KETLABT 680 (KLR) (28 August 2023) (Judgment)

Neutral citation: [2023] KETLABT 680 (KLR)

Republic of Kenya

In the Transport Licensing Appeals Board Tribunal

Appeal TLAB/E010 of 2022

A Kamotho, Chair, Joseph Mcdonald, Maryan Hajir, Waithira Muiruri & James Ngomeli, Members

August 28, 2023

Between

Francis Kibe Kimani

Appellant

and

National Transport & Safety Authority

Respondent

Judgment

Introduction 1. The Appellant is a male adult of Identification no 2438XXX2, a resident of Naivasha town within Nakuru County.

2. The Respondent, National Transport and Safety Authority (NTSA), is a statutory body 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 decision of NTSA not to issue the Appellant with a Driving License triggered the dispute.

Appellant's Case 4. The Appellant’s case is contained in his Memorandum of Appeal dated 16th May 2022 and was lodged on the same date. He contends that the Respondent Authority (NTSA), has refused to issue him with a driving license since 2012.

5. The Appellant claims that he undertook driving classes/lessons in Embakasi (Heltz Driving School) and did his exams in December 2012. He provided his provisional driving license and Driver’s Certificate of Competency both dated 18/12/12 as evidence of the same.

6. The Appellant contends that after six (6) months he went back to pick up his driving license but was told that his provisional/Interim driving license had expired and requested to go back to school which he was unable to do.

7. The Appellant prays that the Tribunal orders NTSA to issue him with a driving license without further conditions.

Respondent's Case 8. The Respondent Authority argued that they did not have his documents since there are no records of the same in their system.

9. The Respondent Authority provided that the Appellant should go back to the driving school for them to populate his data in the system to enable him process his Interim driving license.

Issues for DeterminationFollowing 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:a)Whether the Appellant has Adduced Sufficient Evidence

a) Whether the Appellant has Adduced Sufficient Evidence 10. In coming up with this determination the Tribunal has to consider two things; Firstly, the requirements to be met for an applicant to be issued with a driving license; The steps/procedure to be followed for application of a driving license and if the Appellant satisfied both.

11. The provisions for driving licenses in Kenya are governed under PART IV of the Traffic Act Cap 403. Section 30 of the Act provides for the general rule with regard to driving in Kenya and states as follows;“(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.”

12. The process of obtaining a driving license starts with the applicant attaining the age requirements put in place. Section 33 of the Traffic Act Cap 403 states as follows;“(1)No driving license or provisional license shall be granted to any person(i)under the age of sixteen years;(ii)under the age of eighteen years, except in respect of motorcycles; or(iii)endorsed in respect of matatus and motor-omnibuses, unless he(a)is over the age of twenty-four years; and(b)has for not less than four years held a license endorsed in respect of motor-cars or commercial vehicles:

13. Upon ascertaining that a person has met the age requirement he then has to enrol to a driving school for the theory course. Which after completion one books a driving test with NTSA.

14. Section 39 of the Traffic Act Cap 403 provides that, the driving test shall be conducted by NTSA. The purpose is to test the applicant’s knowledge of rules of the road, road signals and signs, authorized road or highway code and physical fitness to drive a motor vehicle of the class for which the licence is required.

15. Section 26 (1) (a) of the Traffic (Driving Schools, Driving Instructors and Driving Licenses) Rules 2018 expressly states;“A driving school shall apply for a driving examination on behalf of a pupil—after conducting an internal driving examination and the pupil is successful in the examination.”

16. When a person passes the driving test he/she is issued a Certificate of Competence. Section 31 of the Traffic Act Cap 403, provides that;“(1)A licensing officer shall not grant an applicant a driving licence endorsed in respect of any class of motor vehicle unless the applicant—a.satisfies the licensing officer that he has passed a test of competence to drive that class of motor vehicle conducted under section 39, or that he holds a certificate of competency for that class of motor vehicle.”

17. The Appellant in this case was able to sufficiently prove that he indeed passed the driving test and was issued with a Certificate of Competency dated 18/12/12.

18. However, it is important to note that the Certificate of Competence and provisional license are only valid for a period of three (3) months after which the driver may have to retake the test. It is the Appellant’s case that he went back to inquire about his driving license six (6) months after he passed the test.

19. It is our considered view that the Appellant met all the requirements for a person to be granted a valid driving license. The requirements in question are that;he was above 18years; had enrolled to a driving school; had passed his driving test and was issued with a certificate of competency.

20. The Appellant however, did not complete the process for one to be issued with a valid driving license. Upon being issued with the certificate of competency he failed to make a formal application to the Respondent Authority for the driving license as provided for under section 31 of the Traffic Act Cap 403.

21. The Respondent Authority in this case lacks the required documents in their system to facilitate the production of the Appellant’s driving license. Therefore, the Appellant should go back to the driving school and get the provisional license and make a formal driving license application to the Authority for consideration.

OrdersHaving considered the facts, evidence adduced and the relevant law, the Transport Licensing Appeals Board hereby makes the following orders:1. That the Appellant should go back to a driving school.2. That each party should bear its own costs.It is so ordered.

DELIVERED AT NAIVASHA BY THE TRANSPORT LICENSING APPEALS BOARD ON THIS 28TH DAY OF AUGUST 2023. DR. ADRIAN KAMOTHOCHAIRPERSON..........................................................JOSEPH MCDONALDMEMBER..........................................................JAMES NGOMELIMEMBER..........................................................MARYAN HAJIRMEMBER..........................................................WAITHIRA MUIRURIMEMBER..........................................................