[2022] KETLABT 778 (KLR)

Mwangi v National Transport and Safety Authority (Appeal 017 of 2022) [2022] KETLABT 778 (KLR) (Civ) (7 September 2022) (Judgment)

Neutral citation: [2022] KETLABT 778 (KLR)

Republic of Kenya

In the Transport Licensing Appeals Board Tribunal

Civil

Appeal 017 of 2022

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

September 7, 2022

Between

Francis Gitonga Mwangi

Appellant

and

National Transport and Safety Authority

Respondent

Judgment

Introduction 1. The appellant is a 39-year-old Kenyan National, resident of Nyahururu, Laikipia county and a holder of a BCE license issued by the respondent. He has been driving under the license for the last 5 years.

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 had obtained a driving license to enable him drive class BCE vehicles. To prove this, point the appellant attached a DL No C xxxxxx this license was valid for 1 years to May 24, 2018.

4. The appellant argued that having met the requirements for PSV endorsement he should automatically get it, class A.

5. On cross-examination however it appeared that the appellant had not made a formal application to the respondent.

Respondent’s Case 6. The respondent presented a print out of the appellant’s credential from the TIMS system and averred that the appellant only had classes B, C and C1 endorsement.

7. The respondent authority argued that the class A endorsement carries a lot of public expectations and for abundance of caution it would be important for the appellant to go back to a driving school so that the authority can be confident with the endorsement. This the authority argued that public safety is of greater public interest.

8. To support the argument, the respondent relied on section 13,14 and 17 of the Traffic Rules (under section 119 of the Traffic Act) as read together with section 31 of the Traffic Act.

9. The respondent further stated that there has been changes in the law under The Traffic (Driving Schools, Driving Instructors and Driving Licences) Rules, 2018 with new classification and hence the appellant has to meet the new requirements set out in the new regulations.

10. The class A which the appellant wants has been sub-divided into D1, D2 and D3 which some of the categories the appellant does not qualify for.

DeterminationFollowing 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 issues for determination whether:1. The appellant has adduced enough evidence to prove that he is qualifies for an equivalent of class A endorsement?

Whether Enough Evidence Has Been Adduced By The Appellant 11. Under section 33 of the Traffic Act, chapter 403 of Laws of Kenya. Section 33(1) of the Traffic Act states that1. No driving licence or provisional licence shall be granted to any personi.under the age of sixteen years;ii.under the age of eighteen years, except in respect of motorcycles; oriii.endorsed in respect of matatus and motor-omnibuses, unless hea.is over the age of twenty-four years; andb.has for not less than four years held a licence endorsed in respect of motor-cars or commercial vehicles:Provided that any person who satisfies the licensing officer that he has, before the commencement of this Act, been in possession of a licence authorizing him to drive a motor vehicle in Kenya shall, subject to subsection 2 of section 31, notwithstanding the provisions of this section, be entitled to receive a licence in respect of the same class or description of vehicles which he is by such licence authorized to drive.

12. By the time the appellant was making the application for endorsement he had not meet the requirements.

13. Further considering section 13,14 and 17 the Traffic Rules and The Traffic (Driving Schools, Driving Instructors and Driving Licences) Rules, 2018 the appellant is required to do a driving test to meet the requirements.

14. Under section 27 (3) of The Traffic (Driving Schools, Driving Instructors and Driving Licences) Rules, 2018it statesA person who has passed a driving test to drive a motor vehicle of a particular class shall not, by virtue thereof, be considered to have passed a driving test to drive a motor vehicle of any other class unless that person has passed a test to drive a motor vehicle of that other class.

15. Going by the above provision it is therefore paramount that the appellant must go back to driving test and makes a formal application for a class D1 endorsement.

16. 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 not meet the requirements for an endorsement of class A or its equivalent under the new rules.2. Every party to bear there on cost.

DELIVERED, DATED, AND SIGNED IN NAKURU BY THE TRANSPORT LICENSING APPEALS BOARD ON THIS 7TH DAY OF SEPTEMBER 2022. Dick Waweru Chairman ………………………James Ngomeli Member ....................................Lilian Waithera Member ………………………Maryan Hajir Member ………………………Joseph McDonald Member ……………………….