[2023] KETLABT 660 (KLR)

Mushi v National Transport and Safety Authority (Appeal TLAB/E049 of 2022) [2023] KETLABT 660 (KLR) (Civ) (21 August 2023) (Judgment)

Neutral citation: [2023] KETLABT 660 (KLR)

Republic of Kenya

In the Transport Licensing Appeals Board Tribunal

Civil

Appeal TLAB/E049 of 2022

A Kamotho, Chair, Joseph Mcdonald, James Ngomeli, Maryan Hajir & Waithira Muiruri, Members

August 21, 2023

Between

Stephen Kisiangani Mushi

Appellant

and

National Transport and Safety Authority

Respondent

Judgment

A. Introduction 1. The Memorandum of Appeal herein is dated 30th November 2022 and was lodged on the same date and set for a hearing on 9th December 2022. The Appellant, Stephen Kisiangani Mushi, seeks to set aside/appeal or/and review the decision of the National Transport and Safety Authority (NTSA) dated 10th November 2022 at Nairobi County.

B. Background 2. The Appellant is a male adult of Identification Number [particulars witheld] resident of Kisumu County. He is a holder of a Driving license ref no. [particulars witheld] issued by the Respondent.

3. The Respondent, National Transport and Safety Authority (NTSA), is a statutory body 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.

4. The denial and or refusal by the NTSA to issue the Appellant with a Public Service Vehicle Badge (PSV Badge) citing that his Police Clearance Certificate has outstanding remarks triggered the dispute.

5. The Appellant challenges the decision of NTSA by lodging this appeal on grounds that the charge that had been lodged against him in 2001 was thrown out of court due to lack of evidence.

C.Litigation Appellant’s Case 6. The Appellant claimed that the Respondent failed and or refused to issue him a PSV Badge. As a result, the Appellant has suffered economical loss being that he cannot engage in any meaningful employment as a driver.

7. The Appellant claimed to have been charged with a crime of abduction in 2001 when he was only seventeen (17) years old, a minor, and the matter was later thrown out of court for lack of sufficient evidence.

8. In 2014 to 2016 the Appellant applied for a Police Clearance Certificate (PCC) and it came back with no outstanding remarks. During this time, the Appellant was able to acquire employment with Prestige Shuttles Tours and Travel Limited.

9. The Appellant adduced evidence before the Tribunal of a PSV Badge issued by the Respondent Authority from 26th May 2017 to 26th May 2018. He also produced before the Tribunal a Police Clearance Certificate taken in 2017 that had Outstanding Remarks.

10. The Appellant prays that the Transport Licensing Appeal Board (TLAB) orders the Respondent to issue him with a PSV Badge.

Respondent’s Case 11. The Respondent Authority (NTSA), did not have any objection to the Appellant’s Application and stated that they were trying to configure their systems to distinguish said remarks.

12. The Respondent Authority also required the Appellant to furnish them with a copy of the current Police Clearance Certificate to ascertain that the Appellant does not have any other offence apart from the one that he claimed had been concluded.

13. The Respondent Authority also required the Appellant to furnish them with the ruling and or Judgment of the court to further help them assist him accordingly.

Issues for Determination 14. Following the arguments made and evidence adduced by the parties before the tribunal during the trial, the following issues have been extrapolated for determination:a)Whether the Respondent has a right not to grant the Appellant a PSV Badge on grounds that he had a criminal record?b)Whether notwithstanding the remarks on the Appellant’s Police Clearance Certificate (PCC) the Appellants’ application for a PSV Badge should be approved?

Analysis and Determination a) Whether the Respondent has a right not to grant the Appellant a PSV Badge on grounds that he had a criminal record? 15. In coming up with the determination, the court has to establish the requirements to be met for an applicant to be issued with a PSV badge and whether the appellant in this matter met the prerequisite conditions established in law.

16. Section 6(m) of The National Transport and Safety Authority (Operation of Public Service Vehicles) Regulations, 2014 provides for the requirements and expressly states that;“6A person applying to for a licence shall submit to the Authority certified copies of—(m)the driving licence, identity card, and certificate of good conduct of each person who shall drive the public service vehicles in respect to which the application for the licences is being made;"

17. From the above legal provision, it is established law that a Certificate of good Conduct is one of the prerequisite conditions that an applicant has to meet to be issued with a PSV badge by the Respondent Authority (NTSA).

18. The Appellant in this case did not provide a Police Clearance Certificate (PCC) to the Respondent Authority. This led to the decision of NTSA not to issue the Appellant with a PSV badge.

19. During the proceedings the Board’s effort through the Secretariat to have the Appellant produce evidence (Court Proceedings, Ruling and or Judgment) of the criminal matter being concluded was an exercise in futility and thus could not warrant any assistance from the Respondent Authority.

20. In the matter of Bwire v Wayo & Sailoki (Civil Appeal 032 of 2021) [2022] KEHC 7 (KLR) It was stated that;“The party that carries the burden of proof must produce evidence to meet a threshold or “standard” in order to prove their claim. If a party fails to meet their burden of proof, their claim will fail. The general rule in civil cases is that the party who has the legal burden also has the evidential burden. If the Plaintiff does not discharge this legal burden, then the Plaintiff’s claim will fail. In civil suits, the plaintiff bears the burden of proof that the defendant's action or inaction caused injury to the Plaintiff, and the defendant bears the burden of proving an affirmative defence. If the claimant fails to discharge the burden of proof to prove its case, the claim will be dismissed. If, however the claimant does adduce some evidence and discharges the burden of proof so as to prove its own case, it is for the defendant to adduce evidence to counter that evidence of proof of the alleged facts. If after weighing the evidence in respect of any particular allegation of fact, the court decides whether the (1) the claimant has proved the fact, (2) the defendant has proved the fact, or (3) neither party has proved the fact.”

21. The general principle for the burden of proof is that “he who alleges must prove”. The Appellant alleges that the outstanding criminal matter on his current PCC was concluded. However, despite various efforts made by the Respondent no evidence has been adduced to support the fact.

22. The Respondents’ action of denying the Appellant’s application based on his failure to meet the requirements put in place has merit. This is because administrative action can be taken even after criminal actions have. It was up to the Appellant to prove that the criminal matter was concluded to avoid any sort of double jeopardy that might be occasioned on him.

b) Whether notwithstanding the remarks on the Appellant’s Police Clearance Certificate (PCC) the Appellants’ application for a PSV Badge should be approved? 23. We have already established that the law envisages that an applicant requires a Police Clearance Certificate (PCC) as one of the requirements to acquire a PSV Badge. The Respondent Authority works in collaboration with the Directorate of Criminal Information (DCI) to establish the details contained in a Police Clearance Certificate (PCC).

24. For the Respondent Authority to issue an Applicant with a PSV badge they have to ascertain that they have met all the set requirements in law.

25. The Appellant alleges that he was charged with a crime of abduction in 2001 when he was only seventeen (17) years old, a minor, and the matter was later thrown out of court for lack of sufficient evidence. However, he did not adduce any evidence to that effect. Therefore, he failed to sufficiently prove that he was indeed released and that the matter was concluded.

26. It is the sole obligation of the Appellant to persuade the Tribunal by adducing sufficient evidence of a certain fact, an obligation that the appellant in this case failed to fulfil.

27. Justice Mativo in the matter of Hellen Wangari Wangechi v Carumera Muthini Gathua [2005] eKLR, stated as follows:“Whether one likes it or not, the legal burden of proof is consciously, or unconsciously the ... test applied when coming to a decision in any particular case. The fact was succinctly put forth by Rajah JA in Britestone PTE Ltd v Smith & Associates Far East Ltd [2007] 4SLR (R) 855 at 59:“The court’s decision in every case will depend on whether the party concerned has satisfied the particular burden and standard of proof imposed on him.”

28. In the matter of Stanley Maira Kaguongo v Isaac Kibiru Kahuthia [2022] eKLR it was stated that;“The principle is that whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of fact which he assert, must prove that those facts exist. The burden of proof in a suit or proceeding, lies on that person, who fail if no evidence at all were given on either side.”

29. The legal basis for burden of proof is provided in Section 107 of the Evidence Act, Cap 80 laws of Kenya. It expressly states as follows;“(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”

30. Therefore, the onus is upon the Appellant to adduce cogent and credible evidence to prove the grounds to the “satisfaction of the court”. The Appellant on whom the legal burden of proof lies may or may not adduce sufficient and admissible evidence in proof of any of the allegations in the appeal. On one hand, if no sufficient evidence is adduced to the required standard, then the allegation(s) fail and it all ends there.

31. This Tribunal’s decision is on a case to case basis and in this matter the Appellant has failed to prove two fundamental things; Firstly, that he does not have an outstanding criminal matter and Secondly, that the remarks on his PCC are incorrect. Based on those findings by the Tribunal, it is our considered view that the Appellants has not adduced sufficient evidence to enable the tribunal order NTSA issue him with a PSV badge.

OrdersHaving considered the facts and the law applicable to this case, the Transport Licensing Appeals Board hereby makes the following Orders:a)That this case is dismissed.b)That each party should bear its own costs.It is so ordered.

DELIVERED AT KISUMU BY THE TRANSPORT LICENSING APPEALS BOARD ON THIS 21ST DAY OF AUGUST 2023. DR. ADRIAN KAMOTHO - CHAIRPERSON......................JOSEPH MCDONALD - MEMBER......................JAMES NGOMELI - MEMBER......................MARYAN HAJIR - MEMBER......................WAITHIRA MUIRURI - MEMBER......................