[2019] KETLABT 100 (KLR)

REPUBLIC OF KENYA

MINISTRY OF TRANSPORT AND INFRASTRUCTURE

TRANSPORT LICENSING APPEALS BOARD

APPEAL NO. 1 OF 2018

MATATU OWNERS ASSOCIATION (MERU BRANCH).....................APPELLANT

-VERSUS-

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

INTRODUCTION

1. The Appellant is an umbrella organization representing the interests of public service vehicles within the Meru region.

2. The Respondent, National Transport and Safety Authority, 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.

The Appellant’s Case

3. The Appellant filed this appeal against the Respondent on the ground that the Respondent had failed to stop illegal vehicles from operating as public service vehicles on the roads of Meru. The said illegal operators were using different vehicles, including Sientas, Proboxes etc.

4. It was the Appellant’s contention that the illegal operators were not taxed as other lawful operators. They also operate without stickers, speed governors, badges, uniforms, and car tracks. This has the overall effect of competing unfairly with the law abiding operators.

5. The Appellant also contended that the Respondent had withdrawn unlawfully their short term licenses. This was communicated to them through the radio.

The Respondent’s Case

6. It was the Respondent’s case that the power to remove illegal operators from the roads belongs to the Traffic Department of the Kenya Police rather than the Respondent. This is in accordance with sections 54 and 57 of the National Police Service Act, which states that the Kenya Police shall maintain order on roads and that “a police officer may stop, search and detain any vehicle or vessel which the police officer has reasonable cause to suspect is being used in the commission of, or to facilitate the commission of an offence.” The Respondent’s also relies on Section 69 of the Traffic Act, which provides that “the Inspector-General of the Police may, by notice in the Gazette, designate a place along a public road on which a police roadblock may be mounted.”

7. It was the Respondent’s case that the issuance and usage of short term Road Service Licenses was stopped temporarily during the December holidays of 2017 as a result of a series of fatal road accidents that occurred countrywide. The Respondent produced evidence to prove that they have since lifted the ban on short term licenses.

Issues for Determination

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

a. Whether the Respondent has the authority to remove illegal operators from the road.

b. Whether the Respondent withdrew lawfully the short time licenses of public service vehicles.

Whether the Respondent has the authority to remove illegal operators from the road.

9. According to section 4 of the National Transport and Safety Authority Act No 33 of 2012, the functions of the Respondent entail: advising and making recommendations to the Cabinet Secretary on matters relating to the road transport and safety; implementing policies relating to road transport and safety; planning, managing and regulating the road transport system in accordance with the provisions of this Act; ensuring the provision of safe, reliable and efficient road transport services, and administering the Act of Parliament set out in the First Schedule.

10. In the performance of its functions, the Authority is empowered to: register and license motor vehicles; conduct motor vehicles inspections and certification; regulate public service vehicles; advise the Government on national policy with regard to road transport system; develop and implement road safety strategies; facilitate the education of the member of public on road safety; conduct research and audits on road safety; compile inspection reports relating to traffic accidents; establish system and procedures for, and oversee the training, testing and licensing of drivers; formulate and review the curriculum of driving schools; co-ordinate the activities of persons and organizations dealing in matters relating to road safety; perform such other functions as may be conferred on it by the Cabinet Secretary or by any other written law.

11. From the foregoing, it is clear that the Respondent does not have enforcement powers against illegal operators. As argued by the Respondent, it is the Kenya Police that has such powers by virtue of section 42 of the NTSA Act as read together with Section 54 and 57 of the National Police Service Act as well as Section 69 of the Traffic Act.

12. Section 42 (1) provides that “a police officer in uniform may stop and inspect any vehicle with a view to ascertaining whether or not the provisions of this Act or any regulations made thereunder have complied with, and may demand for inspection the production of any license, certificate, document or record of any description.”

Whether the Respondent withdrew lawfully the short time licenses of public service vehicles.

13. It was the Respondent’s case that the temporary withdrawal of short time licenses was occasioned by the frequency of accidents that happened during the December holidays of 2017. A number of the vehicles involved in the accidents were on short term licenses and it was explained that they were likely to get into such accidents due to lack of familiarity with the roads. The Respondent averred that this was a temporary measure geared towards saving lives. The Respondent averred that they had indeed lifted the ban on short term licenses.

14. We find that it was in the public interest to withdraw temporarily the short term licenses and this was not informed by malice on the part of the Respondent, as the suspension was lifted when the circumstances changed.

15. Having considered the facts and the law applicable to this case, the Transport Licensing Appeals Board makes the following declaration and order:

a. That the Respondent does not have enforcement powers to remove illegal operators from the Road.

b. That the Respondent should advise the Cabinet Secretary on how to address the problem of illegal operators on the roads.

Delivered, dated, and signed in Meru by the Transport Licensing Appeals Board on this 29th March 2018.

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

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

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