[2020] KETLABT 33 (KLR)

TRANSPORT LICENSING APPEALS BOARD

APPEAL NO. 20 OF 2020

MOM SACCO LTD & 21 OTHERS ...................................................APPELLANT

VERSUS

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

RULING

Introduction

1. The Appellants are cooperative societies that are registered under the Co-operative Societies Act (Cap 490) and are 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

3. Pending the hearing and determination of this matter, the Appellant has applied for a temporary order to lift the closure of their portal.

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 on October 20, 2020.

The Appellant’s Case

5. The Appellant appeared in court on November 6, 2020 and challenged the closure of their portal on the basis that: the 21 days notice given by NTSA was too short and not reasonable given that inspection of vehicles and other clearances take more than 30 days. It was also the Appellant’s case that they were not given a hearing despite getting a notice.

The Respondent’s Case

6. The Respondent stated that the Appellant had not complied with PSV regulations, as all their vehicles were not compliant with the regulations. It was the Respondent’s case that this fact was admitted by the Appellant.

7. It was also the Respondent’s case that the notice of 21 days was sufficient.

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?

b. Whether on the evidence and material placed before court, the Appellant has satisfied the conditions upon which a temporary injunction can be granted?

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.

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. It follows, therefore, that there was a breach of Article 47.

Whether on the evidence and material placed before court, the plaintiff has satisfied the conditions upon which a temporary injunction can be granted?

12. The conditions to consider in granting an injunction are provided for in the case of Giella vs Cassman Brown & Company Limited (1973) E A 358, where the court indicated that “an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the Court is in doubt, it will decide an application on the balance of convenience."

13. As pointed out above, the Appellants were not given a hearing. It is this argument that gives the Appellant a high probability of success in the case. Secondly, the Appellant is likely to suffer irreparable injury because more than 1000 persons are dependent on the suspended Sacco and are suffering as a result of the suspension. Thirdly, most of the vehicles are on loan and risk being auctioned by banks. In light of the COVID-19 hardships, including loss of jobs, these are serious threats to the livelihoods and lives of the affected families and ought to warrant the grant of an injunction, as damages would be insufficient to address the hardships.

14. Having considered the facts and the law applicable to this matter, the Transport Licensing Appeals Board makes the following orders:

THAT, pending the hearing and determination of this suit, the suspension of the Appellants portal is lifted with immediate effect and the Respondent, whether by itself or its representatives, servants or agents, is restrained from impounding the Sacco’s vehicles on the basis of circumstances arising from this suit.

Delivered, dated, and signed in Nairobi by the Transport Licensing Appeals Board on this 9th of November, 2020.

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

Moses Parantai ......................... Member

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