[2019] KETLABT 92 (KLR)

IN THE TRANSPORT LICENSING APPEALS BOARD

AT MACHAKOS

APPEAL CASE NO 19 OF 2019

KINATWA SACCO...................................................................................APPELLANT

VERSUS

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

(Being an appeal from the decision of the National Transport and Safety Authority, made in June 2019, declining route extension to the Appellant Sacco)

JUDGMENT

Introduction

1. The Appellant is a Sacco registered under the Cooperative Societies Act (Cap 490). It is licensed by the Respondent Authority to operate public service vehicles.

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 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.

Background

3. The Appellant filed an appeal at the Transport Licensing Appeals Board (TLAB) via a Memorandum of Appeal dated 18th June, 2019, which was supported by the affidavit of one Clinton Wambua that was sworn on 18th June, 2019. The Appellant appealed against the decision of the Respondent to decline the Appellant’s application for route extension to Mombasa.

4. The Appellant relied on the following grounds:

i. THAT the Respondent failed to consider properly the Appellant’s application for route extension and instead interpreted it to mean operating along Mombasa road and as from Wote to Mombasa and back.

ii. THAT the Respondent failed to accord the Appellant an opportunity to be heard and make its representation before the Appellant’s application for route extension was declined sometime in June 2019. This is contrary to the Fair Administrative Action Act, 2015.

iii. THAT the Respondent failed to properly consider the Appellant’s application for route extension. The Appellant applied for route extension from KituiViaMutomo, Ikutha, kibwezi to Mombasa and back. Instead of considering the route as requested, the Respondent considered and declined to extend the route from Wote- Mombasa and back.

iv. THAT the Respondent herein in declining to grant the Appellant’s route extension, cited high number of vehicles operating along Mombasa road without conducting any research on the said requested route and in utter disregard of the Appellant’s route approval by the County Government of Mombasa.

v. THAT the Respondent failed to consider that the Appellant has complied with all traffic Laws, Rules and Regulations and that the County Government of Mombasa has given it the requisite route approval.

vi. THAT the Appellant has incurred a lot of expenses in complying with the requirements of the County Government of Mombasa, a fact that the Respondent failed to consider.

vii. THAT after the decision appealed against herein, the Respondent has neglected and/or failed to grant the route extension on request of the Appellant despite the Appellant having complied with all the relevant laws. Equally no justification of the reasons cited have been given by the Respondent which is contrary to the provisions of Article 47 of the Constitution of Kenya.

5. The Appellant prayed for:

i. The appeal herein be allowed.

ii. A declaration that the Respondent in declining to grant route extension to the Appellant on 6th June, 2019, contravened Article 47 of the Constitution of Kenya and section 4 of the Fair Administrative Action Act, 2015.

iii. A declaration that the Respondent in considering Wote- Mombasa and back route misdirected itself as to the route extension applied for by the Appellant.

iv. A declaration that the Respondent failed to consider the route approval granted by the County Government of Mombasa and instead misdirected itself that Mombasa road was crowded.

v. An order of certiorari quashing the Respondent’s decision made on 6th June, 2019, declining the Appellant’s application for route extension to Mombasa.

vi. An order of mandamus compelling the Respondent to grant the Appellant route extension to Mombasa and issue the road service license to that effect.

vii.Costs of this Appeal to be awarded to the Appellant.

Appellant’s Case

The Appellant argued its case both orally during the trial on 9th July, 2019 and via written submissions dated 5th August, 2019, filed on 6th August, 2019.

6. During the trial, the counsel for the Appellant relied on theMemorandum of Appeal and supporting affidavit of Clinton Wambua, the Chairperson of the Appellant.

7. The Appellant submitted that it applied for route extension via a letter dated 5th March, 2019. The letter was addressed to the Respondent requesting it to extend the Appellant’s route from Nairobi- Kitui- Mwingi- Makueni- Mombasa and back. This letter was admitted in evidence.

8. The Respondent declined the Appellant’s application for route extension via the letter dated 6th June, 2019. It stated that theAppellant’s application for route extension from Wote to Mombasa and back had been declined.This letter was admitted in evidence.

9. The Appellant acknowledged that it received a letter from the Respondent declining its application for route extension. It, however, pointed out that the route declined was not the one the Appellant had applied for. The Respondent had declined to extend the route from Wote to Mombasa and back while the Appellant had applied for route extension from Nairobi- Kitui- Mwingi- Makueni- Mombasa and back.

10. The Appellant submitted that according to the Respondent’s letter declining the application, the reason given for not granting the route extension was that there was a high number of vehicles operating along Mombasa road. No report was produced by the Respondent to prove this averment.

11. It was the Appellant’s case that the basis of this appeal was the fact that the Respondent’s decision to decline the Appellant’s application for route extension was in contravention of Article 47 of the Constitution of Kenya and section 4 of the Fair Administrative Action Act, 2015,as:

i. The Appellant was not given prior notice of the decision; and

ii. The Appellant was not given an opportunity to be heard.

12. During the trial the Appellant referred the Board to section 4 (3) of the Fair Administrative Action Act which provides as follows:

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;

(c) notice of a right to a review or internal appeal against an administrative decision, where applicable;

(d) a statement of reasons pursuant to section 6;

(e) notice of the right to legal representation, where applicable;

(f) notice of the right to cross-examine or where applicable; or

(g) information, materials and evidence to be relied upon in making the decision or taking the administrative action.

It was the Appellant’s submission that the Respondent contravened this section of the law.

13. The Appellant further submitted that the Respondent contravenedArticle 47(1) and (2) of the Constitution which provides that:

(1) 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.

14. In support of its argument that the Respondent had contravened Article 47 of the Constitution, the Appellant referred the Board to paragraph 21 of the case ofRepublic v County Director of Education, Nairobi & 4 others Ex-parte AbdukadirElmiRobleh [2018] eKLR,which states as follows:

“What the Constitution requires in my view is the notification of the intention to take an action against a person likely to be adversely affected thereby and the reasons for the intended action. The said reasons, it is my view must depend on the peculiar circumstances of each case and it is those peculiar circumstances which ought to be considered which consideration must under Article 47 of the Constitution entail an opportunity to the applicant to be heard on the circumstances alleged to constitute satisfactory reasons for the taking of the adverse action.”

15. The Appellant further quoted the case of OnyangoOloo vs. Attorney General [1986-1989] EA 456 stating that denial of the right to be heard renders any decision made null and void ab initio.

16. The Appellant submitted that it was compliant with Traffic Rules and Laws and it had complied with all the requirement of the County Government of Mombasa.

Respondent’s Case

The Respondent argued its case both orally during the trial on 9th July, 2019 and via written submissions dated 1st August, 2019, filed on 1st August, 2019.

17. During the trial, the Respondent submitted that the Appellant did not come to the court with clean hands, as it failed to disclose material facts.

18. The Respondent submitted that the Appellant’s application for route extension was declined due to the following reasons:

i. Route contravention complaint;

The Respondent submitted that it received a complaintdated 6th May, 2019, from the County Government of Kitui, regarding the operations of the Appellant. The complaint stated that the Appellant was contraveningroutes by operate along Kitui- Mutumo route as it was not licensed to do so.

Consequently, the Respondent summoned the Appellant and resolved that it stops contravening the route. The Respondent submitted that the Appellant did not stop contravening the route as evidenced by a letter dated 18th June, 2019, from Mbikisa and Kitui Wendo Saccos complaining of the same.

The Respondent subsequently wrote to the Appellant via a letter dated 1st July, 2019, advising the Appellant to stop contravening the route.

ii. High number of violations including suspension of the Appellant’s operating Licence in preceding years;

iii. High number of Vehicles operating along requested route;

The Respondent submitted that currently there were thirty one (31) transport operators with a total of one thousand, eight hundred and ten (1,810) vehicleson that route.

iv. Compliance issues;

The Respondent submitted that the Appellant was not 100% compliant as required. This is because: three (3) of its vehicles were operating without Road Service Licence; fourteen (14) of its drivers were operating with expired PSV badges and sixteen (16) of its vehicles were offline in the fleet management system.

19. The Respondent further stated that,pursuant to section 29 of the National Transport and Safety Authority Act,the decision it made was in the interest of the public.

20. In response to the reasons given by the Respondent in paragraph 17 above, the Appellant submitted that if the Board considers the issues raised by the Respondent, it would amount to double jeopardy. The Appellant further submitted that the issues raised were not related to the route extension application.

The issue

Following the evidence adduced by the parties before the Transport Licensing Appeals Board, the Board has isolated the following issues to be the once requiring a determination:

a)Whether the Respondent misdirected itself as to the route extension applied for by the Appellant.

b) Whether the Respondent breached the rules of Natural Justice and the provisions of theFair Administrative Action Act

Reasoning

Whether the Respondent misdirected itself as to the route extension applied for by the Appellant.

21. The Board has noted with great concern that the route extension applied for by the Appellant was not the same one that was considered and subsequently denied.The Respondent had declined to extend the route from Wote to Mombasa and back while the Appellant had applied for route extension from Nairobi- Kitui- Mwingi- Makueni- Mombasa and back.

22. The Board views the consideration of a route extension not applied for as a material error. According to the case ofRepublic v County Director of Education, Nairobi & 4 others Ex-parte AbdukadirElmiRobleh [2018] eKLROdunga J stated in paragraph 26:

“It is now clear that judicial review remedies can be granted on grounds of ultra vires, jurisdictional error, misdirection in law, errors of precedent fact such as fundamental factual errors or findings devoid of evidence, abdication of or fettering discretion, insufficient inquiry or failure to consider material or relevant facts,considering irrelevant facts, bad faith or improper motive, frustration of the legislative purpose, substantive or procedural fairness, inconsistency in decision making, unreasonableness, lack of proportionality, bias and failure to give reasons for the decision. SeeJudicial Review Handbook6thEdition by Michael Fordham,Pastoli vs.Kabale District Local Government Council and Others [2008] 2 EA 300, Council of Civil Unions vs. Minister for the Civil Service [1985] AC 2 andAn Application by Bukoba Gymkhana Club [1963] EA 478 at479. ”

Whether the Respondent breached the rules of Natural Justice and the provisions of theFair Administrative Action Act 2015

23. The Board further notes that the letter by the Respondent, dated 6th June 2019, declining the application for route extension contains only one reason for declining, namely, that the road is congested. The other reasons were not made known to the Appellant until the day of the trial. This clearly indicates that the application for route extension was rejected for reasons that were not disclosed to the Appellant.

24. The Board agrees with the arguments of the Appellant. The law is very clear.

Section 4 (3) of the Fair Administrative Action Act 2015 provides that:

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;

Pursuant to this sectiontheAppellant should have been givenprior and adequate notice of the nature and reasons for the proposed administrative action andan opportunity to be heard before a decision was entered against it by the Respondent. The Respondent therefore breached the rules of natural justice.

25. What therefore is the effect of a decision made by an administrative body without due regard to the rules of natural justice? Is the decision valid in law?

Such a decision is void. According to the case ofGeneral Medical Council vs. Spackman [1943] 2 All ER 337which was cited with approval in R vs. Vice Chancellor JKUAT Misc. Appl. No. 30 of 2007the court ascertained that:

“If the principles of natural justice are violated in respect of any decision, it is, indeed immaterial whether the same decision would have been arrived at in the absence of the departure from essential principles of justice. The decision must be declared as no decision.”

Similarly,In Ridge vs. Baldwin [1963] 2 All ER 66 at 81, Lord Reid expressed himself as follows:“Time and again in the cases I have cited it has been stated that a decision given without the principles of natural justice is void.”

Determination

In view of the above, it is the Board’s decision that the Respondent misdirected itself as to the route extension applied for.The Respondent’s decision was also in breach of the principles natural justice and is therefore void.

The Transport Licensing Appeals Board hereby makes the following orders:

1. THAT the Respondent’s decision to decline the Appellant’s application for route extension is REVERSED with immediate effect.

2. THATthe Respondent responds to the Appellant’s original application for route extension, that is Nairobi- Kitui- Mwingi- Makueni- Mombasa and back, within 7days of this judgment.

Delivered, dated, and signed in Machakos by the Transport Licensing Appeals Board on this 16th day of August 2019

Dick Waweru Chairman .........................

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

Aden Noor Ali Member ……………………….

Betty Chepng’etich Bii Member ……………………….