[2020] KETLABT 133 (KLR)

TRANSPORT LICENSING APPEALS BOARD

APPEAL NO. 026 OF 2019

MARTIN G. KIHARA ....................................................................................APPELLANT

VERSUS

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 26 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. The Appellant made an application to the Respondent for a Class D2 stamp/endorsement on his driving license in order for him to drive class D2 vehicles. In response to the application, the respondent authority in its decision dated 20th May 2019 stated that the appellant should go back to driving school for his licence to be endorsed with a class D2 stamp.

4. 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.

5. 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.

6. The Appellant produced copies of his driving licence for the years 1993 up to 2019. He also produced a copy of the original driving licence.

Respondent’s Case

7. The Respondent Authority argued that the class A signature on the appellant’s driving licence was different from the three signatures against classes BCE hence could not ascertain whether the class A stamp on the appellant’s driving licence was genuine or not.

8. The respondent averred that there was insufficient evidence adduced by the appellant and asked for more evidence to prove that the appellant had class A stamp on his driving licence and that he had driven for more than 4 years.

9. Determination

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 which will make him able to 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

10. The appellant has proved that he has been driving for more than 4 years and that he is 51 years, 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 that

(1) 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.

11. The appellant has also furnished copies of his driving licence from when he was first issued with one in 1993 to 2019. The driving licence dated 7th May 2019 and which expires on 6th May 2020 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.

12. 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

13. 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.

14. 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…; or

b) A tribunal in exercise of its jurisdiction conferred in that regard under any written law.

15. 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;

16. 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.”

17. In light of the above, the administrative decision made on 20th May 2019 against the appellant by the respondent authority cannot be allowed to take effect when the constitutional and statutory rules of reasonableness, legitimate expectation, consideration of relevant factors and legality have not been met.

18. 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 24 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. That the appellant’s right to fair administrative action was infringed.

3. That NTSA’s decision that the appellant should go back to driving school for class D2 endorsement was unlawful, unreasonable and infringed the appellant’s legitimate expectation.

4. That the appellant is entitled to the endorsement of class D2 in his licence and should use this order as proof of the entitlement.

5. That NTSA should update the appellant’s driving licence with class D2 endorsement within 7 days.

6. That the order be served upon NTSA and the Traffic Commandant

Delivered, dated, and signed in Nairobi by the Transport Licensing Appeals Board on this 20th day of January 2020.

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

Moses ParantaiMember ………………………

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