[2021] KETLABT 653 (KLR)
The court found that the respondent's suspension of the appellant's portal was unlawful because it was effected without affording the appellant prior notice or an opportunity to be heard, as required by Article 47 of the Constitution and the Fair Administrative Action Act, 2015. The right to fair administrative...
Source-derived case information.
- Citation
- [2021] KETLABT 653 (KLR)
- Parties
- Appellant: Migori County Transport Sacco Ltd; Respondent: National Transport and Safety Authority
- Court
- Transport Licensing Appeals Board Tribunal
- Jurisdiction
- Kenya
- Case Number
- Appeal 03 of 2021
- Procedural Posture
- Appeal / Judgment
- Outcome
- appeal allowed
- Legal Topics
- Fair Administrative Action, Right to Be Heard, Public Service Vehicle Regulation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Migori County Transport Sacco Ltd
Appellant
National Transport and Safety Authority
Respondent
Procedural Posture
Appeal / Judgment
Legal Issues
- 1 Whether the suspension of the appellant's portal by the respondent was lawful.
- 2 Whether the appellant was denied the right to be heard before the administrative action was taken.
Ratio Decidendi
The court found that the respondent's suspension of the appellant's portal was unlawful because it was effected without affording the appellant prior notice or an opportunity to be heard, as required by Article 47 of the Constitution and the Fair Administrative Action Act, 2015. The right to fair administrative action is fundamental and requires that any person affected by an adverse administrative decision must be given adequate notice, reasons for the action, and an opportunity to make representations. The respondent's failure to comply with these procedural safeguards rendered the suspension a violation of the appellant's constitutional and statutory rights. The court emphasized that...
Court Disposition
appeal allowed
Orders
- The suspension of the appellant's portal is lifted with immediate effect.
- The respondent is restrained from suspending the appellant's portal or impounding its vehicles on the basis of the unlawful action arising from this suit.
Full Case Text
Judgment text and source record
35 paragraphs
TRANSPORT LICENSING APPEALS BOARD
RONGOAPPEAL NO.03OF 2021
MIGORI COUNTY TRANSPORTSACCO LTD.......................APPELLANT
VERSUS
NATIONAL TRANSPORT AND SAFETY AUTHORITY......RESPONDENT
JUDGMENT
Introduction
1. The Appellant is a cooperative society that is registered under the Co-operative Societies Act (Cap 490) and has been licensed by the Respondent Authority to operate public service vehicles.
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
4. The case that the Appellants filed at the Transport Licensing Appeals Board arose as a result of the closure of the portal by the Respondent on the basis that they had vehicles in their fleet that had not complied with PSV regulations. The portal was closed in February 2021.
5. The Appellants appeared in court on March 9, 2021 and challenged the closure of their portal on the basis that they were not given a hearing before the closure of the portal. To support its case, the Appellant relied on the evidence of Peter Njaga, a director of the Sacco.
The Respondent’s Case
6. The Respondent stated that the Appellant had not complied with PSV regulation, as all their vehicles were not compliant with the regulations.
7. The Respondent relied on the sworn affidavit of the Director of Licensing, Christopher Wanjau, who confirmed that the Sacco had 50 motor vehicles in its portal out of which only 11 have road service licenses. He also averred that the Sacco had a total of 52 drivers and 67 conductors, but only six drivers and five conductors had PSV badges.
8. It was the Respondent’s case that the Sacco had not fulfilled its legal requirements under the National Transport and Safety Authority (Operation of Public Service Vehicles) Regulations 2014 and, as a result, the ICT system shut down their portal automatically.
Determination
8. Following the arguments presented by the parties, the Transport Licensing Appeals Board has isolated the following issues to be the ones requiring a determination:
a. Whether the suspension of the portals of the Saccos was lawful?
Whether the Suspension of the Sacco was lawful?
9. It was the Appellant’s contention that the Sacco was not given a chance to be heard, a fact that was not rebutted.
10. The need to be heard and given prior notice and reasons for an administrative action that affects a person negatively is a fundamental right under Article 47 of the Constitution, which is given effect by the Fair Administrative Action Act 2015. Section 4 of the Fair Administrative Action Act (2015) provides that:
“(2) Every person has the right to be given written reasons for any administrative action that is taken against him. (3) 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.”
11. This position is also supported by the cases of Onyango Oloo v AG (1986-1989) EA 456 and Pashito Holdings Limited and Another v Paul Nderitu Ndungu & 2 Others [1197] eKLR.
12. It follows, therefore, that there was a breach of Article 47.
13. Having considered the facts and the law applicable to this matter, the Transport Licensing Appeals Board makes the following orders THAT:
a. The suspension of the Appellants’ portals was unlawful and is lifted with immediate effect.
b. The Respondent, whether by itself or its representatives, servants or agents, is restrained from suspending the Appellants’ portals or impounding the Appellants’ vehicles on the basis of theunlawful action arising from this suit.
c. The Respondent is at liberty to issue a fresh notice, conduct a hearing, and take administrative action that is lawful.
Delivered, dated, and signed inNairobiby the Transport Licensing Appeals Board on this22ndofMarch, 2021.
Dick Waweru Chairman ……………………….
Betty Chepng’etich Bii Member ……………………….
Moses ParantaiMember ………………………..
Aden NoorMember ……………………….
Prof. Kiarie MwauraMember ……………………….