[2020] KETLABT 24 (KLR)

TRANSPORT LICENSING APPEALS BOARD

AT NAIROBI

APPEAL CASE NO 11 OF 2020

NANCY NJERI MACHARIA & 29 OTHERS .........................................APPELLANT

-VERSUS-

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

JUPITERLINE INVESTMENT CAPITAL LTD.................SECOND RESPONDENT

RULING

Introduction

1. The Appellant, together with 29 others, are licensed by the First Respondent to operate public service vehicles.

2. The First 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.

3. The Second Respondent is a company that is licensed by the First Respondent to operate public service vehicles.

The Appellant’s Case

4. The Appellant filed an application at the Transport Licensing Appeals Board (TLAB) with a complaint that the First and Second Respondent were non-responsive on the request to facilitate the withdrawal of the Appellants from the Second Respondent’s portal. As a result, the Appellants continued to lose business given that they were unable to get their Road Service License certificates.

5. The Appellants sought an order compelling the First and Second Respondents to unconditionally withdraw the Appellants’ vehicles from the portal of the Second Respondent.

6. The Appellants sought to have the vehicles released from Jupiterline Investment Capital so that they could join Jupiter Classic, which was formed in 2020.

7. It was the Appellants’ case that they had written several letters to the First and Second Respondent which had not been acted upon.

8. It was also the Appellant’s case that they owed no money to the Second Respondent and, as such, their vehicles should have been released unconditionally.

The First Respondent’s Case

9. It was NTSA’s claim that the issue at hand was a civil dispute between two parties that did not have a connection to a licensing decision of NTSA. It was their claim that NTSA had done nothing wrong, as it was the Sacco that had an obligation to release vehicles from the portal.

The Second Respondent’s Case

10. The Chairman of Jupiter Capital, Jackson Wamai Nganga, contended that they were ready to release the vehicles once the debts owed by the Appellants were paid. It was his contention that the companies that sought to be released from the portal owed Jupiter Capital a total of KES 1. 4 million.

Determination

11. Following the arguments adduced in court, the Transport Licensing Appeals Board has isolated the following issues to be the ones requiring a determination:

a. Whether the First Respondent, NTSA, had an obligation to remove vehicles from one Sacco to another.

b. Whether the Transport Licensing Appeals Board has jurisdiction to determine this dispute.

c. Whether the First Respondent, NTSA, had an obligation to remove vehicles from one Sacco to another.

12. From the evidence adduced in court, it was proven that was the Sacco, rather than NTSA, that had the mandate to release vehicles from a portal and that NTSA gave Saccos this autonomy so that they could regulate efficiently their contractual relations.

b. Whether the Transport Licensing Appeals Board has jurisdiction to determine this dispute.

13. In the absence of evidence showing culpability of NTSA, the case falls outside the jurisdiction of the Transport Licensing Appeals Board. This is because the dispute at hand remains that of a debt between private parties. It is the Cooperative Tribunal that has jurisdiction to handle such disputes.

14. The jurisdiction of the Transport Licensing Appeals Board over the administrative actions of the National Transport Authority is set out in section 38 of the National Transport and Safety Authority Act, 2012 in the following terms:

38. Appeals against decision of Authority

a. A person who—

1. being an applicant for the grant or variation of a licence, is aggrieved by the decision of the Authority on the application;

2. having made an objection to any such application as aforesaid, being an objection which the Authority is bound to take into consideration, is aggrieved by the decision of the Authority thereon; or

3. being the licensee, is aggrieved by the revocation or suspension thereof,

4. may within the time and in the manner prescribed appeal to the Appeals Board established under section 39.

15. Having considered the facts and the law applicable to this matter, the Transport Licensing Appeals Board hereby finds:

1. THAT the First Respondent, NTSA, was not culpable for declining to get involved in a dispute between private parties.

2. THAT in the absence of culpability on the part of NTSA, the Transport Licensing Appeals Board does not have jurisdiction to determine the dispute on debt between the parties.

DELIVERED, DATED, AND SIGNED IN MURANG’A BY THE TRANSPORT LICENSING APPEALS BOARD ON THIS 1ST DAY OF DECEMBER 2020.

DICK WAWERU CHAIRMAN ……………………….

PROF. KIARIE MWAURA MEMBER ………………………..

BETTY CHEPNG’ETICH BII MEMBER ……………………….

ADEN NOOR MEMBER ……………………….

MOSES PARANTAI MEMBER ………………………..