[2023] KETLABT 663 (KLR)

Kinyua v National Transport & Safety Authority (Appeal TLAB/E041 of 2022) [2023] KETLABT 663 (KLR) (14 August 2023) (Judgment)

Neutral citation: [2023] KETLABT 663 (KLR)

Republic of Kenya

In the Transport Licensing Appeals Board Tribunal

Appeal TLAB/E041 of 2022

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

August 14, 2023

Between

Gitari Adason Kinyua

Appellant

and

National Transport & Safety Authority

Respondent

Judgment

Introduction 1. The Appellant is a male adult of Identification No: xxxx, a resident of Kirinyaga County and a holder of a driving license issued by the Respondent.

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 PSV badge citing that his Police Clearance Certificate has an outstanding remark triggered the dispute.

Appellant’s Case 4. The Appellant’s case is contained in his Memorandum of Appeal dated 25th November 2022 and was lodged on the same date.

5. The Appellant contends that the Respondent Authority (NTSA), has refused to issue him with a Public Service Vehicle (PSV) badge license citing that his Police Clearance Certificate (PCC) has outstanding remarks.

6. The Appellant concurs that in 2011 he had been charged with the offence of murder and was placed on probation for three (3) years which ended in 2014. He provided a judgment dated 24/01/2011 by Hon. H.M. Okwengu as proof of the same.

7. The Appellant contends that in 2018 his Police Clearance Certificate (PCC) had “NIL” remarks and this enabled him to apply and be issued with a PSV badge by the Respondent Authority. He provided a PCC dated 10th October 2018 as proof of the same.

8. The Appellant further contends that the Respondent Authority issued him with a PSV badge on 12/3/2020 and the same was valid for one year (Expiry: 12/3/2021). Additionally, prior to that he was issued with a PSV badge on 31/10/2018 which was valid until 31/10/2019.

9. The Appellant states that his current (2022) Police Clearance Certificate has an outstanding remark of “Murder” and this has denied him the opportunity to be granted a PSV badge by the Respondent Authority (NTSA).

10. The Appellant prays that the Tribunal orders NTSA to issue him with a PSV badge without further conditions.

Respondent’s Case 11. The Respondent Authority (NTSA), did not an have an objection to the Appellant’s Application but required him to furnish them with a copy of the current Police Clearance Certificate to ascertain that the Appellant does not have any other offence apart from the one that was concluded.

12. The Respondent contends that the Police Clearance Certificate is no longer a requirement for one to be issued with a PSV badge.

Issues For DeterminationFollowing the arguments made and evidence adduced by the parties before the tribunal during the trial, the following issues have been extrapolated for determination:a.Whether the Respondent has a right not to grant the Appellant a PSV Badge on grounds that he had a criminal record?b.Whether notwithstanding the remarks on the Appellant’s Police Clearance Certificate (PCC) the Appellants’ application for a PSV Badge should be approved?

Analysis And Determination Whether the Respondent has a right not to grant the Appellant a PSV Badge on grounds that he had a criminal record? 13. In coming up with the determination, the court has to establish the requirements to be met for an applicant to be issued with a PSV badge and whether the appellant in this matter met the prerequisite conditions established in law.

14. Section 6(m) of The National Transport and Safety Authority (Operation of Public Service Vehicles) Regulations, 2014 provides for the requirements and expressly states that;“6A person applying to for a licence shall submit to the Authority certified copies of—(m)the driving licence, identity card, and certificate of good conduct of each person who shall drive the public service vehicles in respect to which the application for the licences is being made;

15. The Respondents’ action of denying the Appellant’s application based on his failure to meet the requirements put in place have merit. This is because administrative action can be taken even after criminal actions have.

16. It is important to note that a licensees' protection against double jeopardy does not apply to an administrative agency's prosecution in an administrative disciplinary proceeding. The law is very clear that“the constitutional prohibitions against double jeopardy and double punishment do not prevent the legislature from enacting, and the executive from enforcing, civil as well as criminal sanctions for the same conduct."In the Matter of Barnes v. Tofany, 27 NY2d 74 (1970) (the defendant's driver's license was suspended for 60 days in a civil administrative proceeding and was again suspended for 60 days in a subsequent criminal action). This is proof that the Respondent can rightfully enforce its administrative action against the appellant.

17. However, with reference to the case before us, it is our considered view that the Appellant does not have any pending criminal matter in court rather he has sufficiently proved that in 2011 he was sentenced to a three (3) year probation which he duly served and concluded the sentence in 2014. Therefore, the Appellant should not be burdened with administrative punishment unless the respondent can come up with a policy or regulation showing that he should.

18. Additionally, Section 35 (1) and (3) of the Data Protection Act,2019 provides that;“35. (1)Every data subject has a right not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning or significantly affects the data subject.(3)Where a data controller or data processor takes a decision, which produces legal effects or significantly affects the data subject based solely on automated processing—(a)the data controller or data processor must, as soon as reasonably practicable, notify the data subject in writing that a decision has been taken based solely on automated processing; and(b)the data subject may, after a reasonable period of receipt of the notification, request the data controller or data processor to —(i)reconsider the decision; or(ii)take a new decision that is not based solely on automated processing.”

19. Based on this argument, denying the Appellant a PSV Badge on the sole reliance of automated information is a violation of his rights under the Data Protection Act, 2019. The Respondent did not accord the Appellant an efficient and fair administrative action contrary to Article 47 of the Constitution of Kenya, 2010 which states that; “Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.”

Whether notwithstanding the remarks on the Appellant’s Police Clearance Certificate (PCC) the Appellants’ application for a PSV Badge should be approved? 20. We have already established that the law envisages that an applicant requires a Police Clearance Certificate (PCC) as one of the requirements to acquire a PSV Badge. The Respondent Authority works in collaboration with the Directorate of Criminal Information (DCI) to establish the details contained in a Police Clearance Certificate (PCC). The information in the Police Clearance Certificate issued in this matter was not up to date. This is based on the evidence adduced before this honourable tribunal.

21. The Appellant sufficiently adduced evidence before the Tribunal to indicate that he was sentenced to a Three (3) year probation a sentence that he concluded in 2014. It was the mandate and preserve of the Directorate of Criminal Investigation to ensure that the Information on his PCC was up to date.

22. Section 25 (f) of the Data Protection Act, 2019 provides for the Principles of data protection and expressly states as follows;“Every data controller or data processor shall ensure that personal data is-(f)accurate and, where necessary, kept up to date, with every reasonable step being taken to ensure that any inaccurate personal data is erased or rectified without delay;”

23. The DCI’s system generation of the Police Clearance Certificate information that is not up to date is a clear violation of the Appellant’s rights. Section 26 of the Data Protection Act, 2019 provides for the rights of a data subject and expressly states that;“A data subject has a right—d)to correction of false or misleading data; and(e)to deletion of false or misleading data about them.”

24. Being that the Respondent Authority (NTSA), based their decision to issue the PSV Badge on the PCC provided, it will be a great injustice if Appellant continued to suffer economical loss based on incorrect information.

25. This Tribunal’s decision is on a case to case basis and in this matter the Appellant has sufficiently proved two things; that he does not have an outstanding criminal matter and that the remarks on his PCC are incorrect. Based on those findings by the Tribunal, it is our considered view that the Appellant should be issued with a PSV Badge notwithstanding the remarks on his Police Clearance Certificate.

Orders 26. Having considered the facts and the law applicable to this case, the Transport Licensing Appeals Board hereby makes the following ORDERS:1. That the Respondent Authority (NTSA) should issue the Appellant with a PSV badge within fourteen (14) days from the issuance of this order.2. That this order is enforceable for a period of one year from the date it is delivered.3. That the order be served upon NTSA and the Traffic Commandant.

It is so ordered.

DELIVERED AT KIRINYAGA BY THE TRANSPORT LICENSING APPEALS BOARD ON THIS…14TH…. DAY OF…AUGUST….2023. DR. ADRIAN KAMOTHO CHAIRPERSONJOSEPH McDONALD MEMBERMARYAN HAJIR MEMBER .WAITHIRA MUIRURI MEMBERJAMES NGOMELI MEMBERMr. Gitari Adason (self- representation)Mr. Ronald Cheruiyot for the Respondent (In house Counsel for NTSA)