[2023] KETLABT 664 (KLR)

Mutuku v National Transport and Safety Authority (Appeal TLAB/E015 of 2022) [2023] KETLABT 664 (KLR) (16 August 2023) (Judgment)

Neutral citation: [2023] KETLABT 664 (KLR)

Republic of Kenya

In the Transport Licensing Appeals Board Tribunal

Appeal TLAB/E015 of 2022

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

August 16, 2023

Between

Benson Muchuki Mutuku

Appellant

and

National Transport and Safety Authority

Respondent

Judgment

Introduction 1. The Appellant is a male adult of Identification Number xxxxx resident Murang’a County. Holder of a driving license issued by the Respondent.

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 filed a Memorandum of Appeal on the 30th day of May 2022 at Murang’a Law Courts claiming the Respondent had declined to issue him with a Public Service Vehicle Badge (PSV Badge). As a result, the Appellant has suffered economical loss.

4. The Appellant claims that he made an application to the Respondent for a Public Service Vehicle Badge (PSV Badge) to permit him drive a public service vehicle. In response to the applications, the Respondent Authority in its decision refused to issue him with the PSV Badge stating that the Appellant had remarks on his Police Clearance Certificate (PCC).

5. The Appellant argued that he was arrested for the offence of stealing and imprisoned for three years at Borstal institution, Mombasa. This institution is a Youth Corrective Training Centre that caters for boys in conflict with the law between the ages of 15-17 years. This institution was established in 1963 by an Act of Parliament (Cap 92 Laws of Kenya).

6. He applied for a Public Service Vehicle Badge (PSV Badge) for the first time and the Respondent Authority declined his application basing their decision on the fact that his Police Clearance Certificate had outstanding remarks.

7. The Appellant provided evidence showing that the PCC he took in 2019 had “OUTSTANDING” in its remarks. This was irregular being that the Appellant had served his time for the crime he committed.

Respondent’s case 8. The Respondent requested the Tribunal through e-mail that they are allowed to settle the matter out of court.

9. The Respondent Authority did not have any objection to the Appellant’s application apart from the issue of the PCC.

Issues For Determination 10. Following the arguments made and evidence adduced by the parties before the tribunal during the trial, the following issues have been extrapolated for determination:1. Whether the Respondent has a right to refuse to grant a PSV Badge to the Appellant on grounds that he had a criminal record?2. Whether the Appellant has proved his case to warrant the issuance of a Public Service Vehicle Badge?

Analysis And Determination Whether the Respondent has a right to refuse to grant a PSV Badge to the Appellant on grounds that he had a criminal record? 11. The Respondents’ action of denying the Appellant’s application based on his failure to meet the requirements put in place have merit. According to Section 6(m) The National Transport and Safety Authority (Operation of Public Service Vehicles) Regulations, 2014 provides;“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;

12. The above section justifies the actions of the Respondent based on the information given by the Appellant’s Police Clearance Certificate (PCC). It did have remarks for an outstanding crime and as per the law one cannot be issued with a PSV Badge if their PCC has outstanding remarks.

13. However, based on the Appellant’s argument and evidence produced the information in his Police Clearance Certificate is outdated and incorrect which violated the Appellant’s rights.

14. Section 35 (1) and (3) of the Data Protection Act,2019 provides that;“(1)Every data subject has a right not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning or significantly affects the data subject.(3)Where a data controller or data processor takes a decision, which produces legal effects or significantly affects the data subject based solely on automated processing—(a)the data controller or data processor must, as soon as reasonably practicable, notify the data subject in writing that a decision has been taken based solely on automated processing; and(b)the data subject may, after a reasonable period of receipt of the notification, request the data controller or data processor to —(i)reconsider the decision; or(ii)take a new decision that is not based solely on automated processing.”

15. Being that the Appellant was a minor during the time he committed the offence this is a violation of Section 220 of the Children’s Act, 2022 that protects all child offenders and states as follows:“220. Rights of a child offender1. A child offender has the right to privacy during arrest, the investigation of the offence and at any other stage of the cause of the matter.2. A person shall not in the course of arrest, investigation or trial of an offence connected with a child offender, or at any other stage of the course of the matter, release any information for publication that may lead to the identification of the child offender. [emphasis added]3. Any person who contravenes subsection (2) commits an offence and is liable on conviction to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding 12 months, or to both.”

16. Section 25 (f) of the Data Protection Act, 2019 provides;“25Principles of data protectionEvery data controller or data processor shall ensure that personal data is-(f)accurate and, where necessary, kept up to date, with every reasonable step being taken to ensure that any inaccurate personal data is erased or rectified without delay;”

17. Section 26 of the Data Protection Act, 2019 provides;“26Rights of a data subjectA data subject has a right—d)to correction of false or misleading data; and(e)to deletion of false or misleading data about them.”

18. Being that the Respondent based their decision to not issue the PSV Badge on the PCC provided, it will be a great injustice if Appellant continues to suffer economical loss based on incorrect information.

Whether the Appellant has proved his case to warrant the issuance of a Public Service Vehicle Badge (PSV Badge)? 19. Section 33 of the Traffic Act, 2012 provides;33. Driving licences not to be granted to persons under certain ages(1)No driving licence or provisional licence shall be granted to any person—(a)under the age of sixteen years;(b)under the age of eighteen years, except in respect of motorcycles; or(c)endorsed in respect of matatus and motor-omnibuses, unless he—(i)is over the age of twenty-four years; and(ii)has for not less than four years held a licence endorsed in respect of motor-cars or commercial vehicles: [emphasis added]”

Orders 20. Having considered all the facts and the law applicable to this case, the Transport Licensing Appeals Board hereby makes the following order:a.That the Respondent Authority to issue the Appellant with a driving license with fourteen (14) days.b.That the Appellant needs to have four years’ experience to get the PSV Badge license afterwards.c.That this order is enforceable for a period of one year from the date it is delivered.d.That the order be served upon NTSA and the Traffic Commandant

DELIVERED AT MURANG’A BY THE TRANSPORT LICENSING APPEALS BOARD ON THIS 16THDAY OF AUGUST 2023DR. ADRIAN KAMOTHO CHAIRPERSONJOSEPH MCDONALD MEMBERMARYAN HAJIR MEMBERJAMES NGOMELI MEMBERWAITHIRA MUIRURI Member MEMBER