[2022] KETLABT 784 (KLR)

Munyi v National Transport and Safety Authority (Appeal 008 of 2022) [2022] KETLABT 784 (KLR) (Civ) (18 July 2022) (Judgment)

Neutral citation: [2022] KETLABT 784 (KLR)

Republic of Kenya

In the Transport Licensing Appeals Board Tribunal

Civil

Appeal 008 of 2022

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

July 18, 2022

Between

James Theuri Munyi

Appellant

and

National Transport and Safety Authority

Respondent

Judgment

Introduction 1. The appellant is a 34-year-old; Kenyan citizen; a resident of Narok county.

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 avers that on or about 2015 he had taken his DL to the respondent’s offices to have it updated to a smartDL and he had complied with all the procedural and legal requirements yet he had not received the smart DL.

4. The appellant narrated how he took his license to KRA for renewal. The KRA informed him to contact NTSA as KRA had already transferred the motor vehicle and driving license functions to NTSA.

5. The appellant took his license to NTSA on a Wednesday and was told to come on a Monday the following week; since the systems at NTSA were not working (There were no specific dates given by the appellant)

6. As instructed the appellant came back on a Monday; left his DL with the respondent. After about 1 month the appellant came back; but was told his original DL which he had left with the respondent could not be found; to date.

7. He made this appeal (dated May 9, 2022) seeking orders to compel the respondent to issue him with his DL without any further delay; since from 2015 to 2022 is an inordinately long time which has caused the appellant pain, suffering and depravation of livelihood since his DLwas his source of income; without which he could not make a living.

Respondent’s Case 8. The respondent authority agreed that there was inordinate delay on its part to provide the appellant with a DL

9. The respondent further agreed that on face value the appellant seems to have followed all the required steps to be issued with a DL

10. The respondent further stated that through their Kericho office they will try and establish what the issue could be and advice the appellant

Case Status 11. The appellant filed the appeal dated May 9, 2022

12. The matter first came for hearing on May 16, 2022 at the Narok Law Courts, where the appellant was sworn in and gave testimony on issues surrounding his case which are aptly captured above (see 3-7 above).

13. On this day the respondent requested for adjournment asked for 21 days to look into the matter; they gave contacts on which the appellant could reach the respondent’s offices for further assistance. On this day the tribunal adjourned the matter for 14 days.

14. The matter then came for the second hearing on July 18, 2022; and the appellant wrote to the TLAB that he wished to withdraw the case by way of mutual consent since he has been assisted by the respondent to apply for a new DL in Kericho.

Determination 15. 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 singular issue for determination:1. Whether NTSA has violated the appellant’s right to fair administrative action?2. What is the status of the case now that the appellant has withdrawn the case?Whether NTSA has violated the appellant’s right to fair administrative action

16. 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.”

17. 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.”

18. The seven-year delay prior to issuing a licence is excessively inordinate without providing the appellant with a valid reason for the delay; flies across the face of section 4 of the FAA Act of 2015, since it is unreasonable.

19. 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…; orb.A tribunal in exercise of its jurisdiction conferred in that regard under any written law.

20. The board finds the decision of the respondent authority to have been inordinate hence 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)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;

21. 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. 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.”What is the status of the case now that the appellant has withdrawn the case?

22. It is a fact that on July 18, 2022 the appellant wrote to the TLAB his desire to withdraw the case. On the basis that he had reached a consent with the respondent to assist him get a DL.

23. At common law a plaintiff has an absolute right to discontinue his suit at any stage of the proceedings prior to verdict or judgment. This right has been declared to be substantial. It is this right that has been given statutory recognition through order 25 of the Civil Procedure Rules, 2010; it reads1. At any time before the setting down of the suit for hearing the plaintiff may by notice in writing, which shall be served on all parties, wholly discontinue his suit against all or any of the defendants or may withdraw any part of his claim, and such discontinuance or withdrawal shall not be a defence to any subsequent action.(1)Where a suit has been set down for hearing it may be discontinued, or any part of the claim withdrawn, upon the filing of a written consent signed by all the parties.(2)Where a suit has been set down for hearing the court may grant the plaintiff leave to discontinue his suit or to withdraw any part of his claim upon such terms as to costs, the filing of any other suit, and otherwise, as are just.

24. The consequence of withdrawal of a suit by an appellant is that the matter stands terminated and the court becomes “functus officio” and no further proceedings can continue. Consequently, the appellant cannot undo the act of withdrawal; however, the appellant can in future institute a fresh suit. In Smt Rais Sultana Begam v Abdul Qadir & othersthe court held“The consequence of an act of withdrawal is that the plaintiff ceases to be a plaintiff before the court. If he is the only plaintiff and withdraws the whole of the suit, the suit comes to an end and nothing remains pending before the court, if he withdraws only a part of the suit that part goes out of the jurisdiction of the court and it is left with only the other part. This is a natural consequence of the act; a further consequence imposed by sub rule (3) is that he cannot institute a fresh suit in respect of the subject-matter. He becomes a subject to this bar as soon as he withdraws the suit. It follows as a corollary that he cannot revoke or withdraw the act of withdrawal. If he absolutely barred from instituting a fresh suit, it means that he is absolutely barred from reviving his status as a plaintiff before the court.It stands reason that when on withdrawal the plaintiff ceased to be a party and the court ceased to have jurisdiction over the suit and thus became functus officio nothing but a fresh suit can again invest the court with jurisdiction over it. As far as the withdrawn suit is concerned the suit is at an end and no further proceedings can be taken in it; the suit and the plaintiff do not exist and no application such as an for revoking the withdrawal can be made in the suit or by the plaintiff.” (emphasis added)

25. 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 meets all the requirements to be issued with a valid driving license.2. That the appellant’s right to fair administrative action was infringed.3. That the appellant having withdrawn by way of consent; the parties should register the consent with the board.4. That vide withdrawal by the appellant the case is terminated.

DELIVERED, DATED, AND SIGNED IN NAROK BY THE TRANSPORT LICENSING APPEALS BOARD ON THIS 18TH DAY OF JULY 2022. Dick Waweru Chairman ………………………James Ngomeli Member ....................................Lialian Waithera Member ………………………Maryan Hajir Member ………………………Joseph McDonald Member ……………………….