[2022] KETLABT 779 (KLR)

Maina v National Transport and Safety Authority (Appeal 014 of 2022) [2022] KETLABT 779 (KLR) (Civ) (7 September 2022) (Judgment)

Neutral citation: [2022] KETLABT 779 (KLR)

Republic of Kenya

In the Transport Licensing Appeals Board Tribunal

Civil

Appeal 014 of 2022

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

September 7, 2022

Between

Alex Mutahi Maina

Appellant

and

National Transport and Safety Authority

Respondent

Judgment

1. The Appellant is a 32-year-old Kenyan from, Nyeri County and a holder of a DL endorsed with classes A, B, C, E &F issued by the Respondent.

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. The Appellant attached a copy of his DL No.C2498XXX endorsed with category A, B, C, E, F and G.

4. The last time he renewed his license was November 16, 2020 valid to November 15, 2021.

5. He avers that while he has a class A endorsed every time he is stopped by police and they send a short code to the Respondent class A comes back negative; meaning that within NTSA systems he does not have a class A or its equivalent.

6. He further avers that under the old system he had class A endorsement; but under the new online system the class A has been unfairly been removed by the Respondent

Respondent’s Case 7. The Respondent Authority argued that when they checked the system it shows that the Appellant has class B, C and E he does not have A, F and G.

8. The Respondent also alleged that maybe the Appellant procured the endorsements through fraudulent means.

9. The Respondent averred that when NTSA inherited the legacy system from KRA there were many loopholes and people procured endorsements without following the due process. NTSA was however been able to clean up the data base and catching up with the fraudsters.

10. And therefore the Respondent would have to follow the due process to legally procure the endorsements.

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:1. Whether the Appellant is entitled to the endorsement A, F and G.2. Whether the Respondent provided sufficient evidence to proof fraud on the part of the Appellant in procuring endorsement A, F and G. Whether the Appellant is entitled to the endorsement A, F and G. 11. The Appellant has proved that he has been driving for more than 8 years and that hence above 24 years, which makes him entitled to a class D1 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 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 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.

12. The Appellant has also furnished copies of his driving license which he last renewed on November 16, 2020, valid till November 15, 2021; this driving licenses bears a signature against class A which according to the regulations is equivalent to class D1. 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.

13. 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.

14. 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.

15. Until any evidence is provided to the contrary the Appellant is entitled to all the classes that are on the face of his current driving licenses.Whether the Respondent provided sufficient evidence to proof fraud on the part of the Appellant in procuring endorsement A, F and G.

16. The Counsel for the Respondent only stated that during the transition period from the KRA systems to the TIMSsystem owned by the Respondent; they discovered that many Kenyans had illegally acquired endorsement and therefore it is the Respondents policy that if your details are not on the system; the inescapable conclusion was that the endorsement were illegally procured.

17. The Counsel for Respondent further told the TLAB that from their systems the Appellant was only entitled to classes B, C and E and that classes A, F and G must have been procured through fraudulent means.

18. However, the question that begs to answer is whether failure to get details during the transition period is enough proof for fraud?

19. In Kenyan jurisprudence, Courts have always taken the view that the onus to prove fraud in a matter is on the party who alleges it. Similarly, in cases where fraud is alleged, it is not enough to simply infer fraud from the facts. In Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000] eKLR, Tunoi JA (as he then was) stated as follows:“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must of course be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.”

20. It is also the view of the TLAB that the Counsel for the Respondent vaguely inferred that since the Appellant’s name are not on the new system then automatically then the endorsements are not genuine, but there could be other factors such as human error or data loss caused by migration challenges.

21. Therefore, the standard of proof for fraud is a bit higher than balance of probability as alluded by the Counsel for the Respondent. Given the seriousness of the allegations, the onus was on the appellants to provide evidence to the Board of the alleged fraud which evidence must meet the standard of proof as was underscored by this Court in Central Bank of Kenya Limited v Trust Bank Limited & 4 Others [1996] eKLR as being beyond that of a balance of probabilities but not beyond reasonable doubt. In that case, the Court rendered itself as follows:“The appellant has made vague and very general allegations of fraud against the respondent. Fraud and conspiracy to defraud are very serious allegations. The onus of prima facie proof was much heavier on the appellant in this case than in an ordinary civil case.”

22. It is the view of the TLAB that it is not enough for the Respondent to casually allege that Kenyans committed fraud without particularizing and providing sufficient evidence and going ahead and making administrative decisions against them without notifying them or giving them a chance to be heard.

23. Having considered the facts, evidence adduced and the relevant law, the Transport Licensing Appeals Board hereby makes the following orders:1. As per legal requirements the Appellant has met the requirements to get a class A or its equivalent.2. The Respondent has not provided any evidence to sustain the allegations of fraud.3. The Respondent should update their online system to align it with that of the Appellant’s physical DL.4. Every party to bear their own cost.

DELIVERED, DATED, AND SIGNED IN NYERI 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 ……………………….