[2023] KETLABT 683 (KLR)

Njeri v National Transport Safety Authority (Appeal E031 of 2022) [2023] KETLABT 683 (KLR) (30 August 2023) (Judgment)

Neutral citation: [2023] KETLABT 683 (KLR)

Republic of Kenya

In the Transport Licensing Appeals Board Tribunal

Appeal E031 of 2022

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

August 30, 2023

Between

Benson Ndungu Njeri

Appellant

and

National Transport Safety Authority

Respondent

Judgment

A. Introduction [1]The Memorandum of Appeal herein is dated 20th September, 2022 and set for a hearing on 9th October, 2022. The Appellant, Benson Ndungu Njeri, seeks to set aside/ appeal or/and review the decision of the National Transport and Safety Authority (NTSA) dated 20th September, 2022 at Nakuru County.

B. Background [2]The Appellant is a male adult of Identification Number 28150258 resident of Nakuru County.

[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 NTSA delay and or refusal 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 he has no pending criminal charges.

C. Litigationi. Proceedings in the Tribunal

[6]The Appellant filed an Appeal before this Tribunal seeking that the Board orders the Respondent, National Transport and Safety Authority (herein referred to as the NTSA), to issue his PSV Badge unconditionally to enable him continue with his employment.

[7]The Appellant claimed that he was arrested in 2011 for the charge of rape contrary to section 10 of the Penal Code. He was sentenced for 10 years and served for 7 years he did carpentry and joinery courses and was released in 2017.

[8]The Appellant adduced evidence showing that his Police Clearance Certificate (PCC) had outstanding remarks showing that he has a criminal record as a result of his conviction.

[9]The Respondent, NTSA, asked that the Appellant if he had applied for a Public Service Vehicle Badge (PSV Badge). The answer was no but a licensing officer from NTSA stated that the National Transport and Safety Authority system are linked with the Directorate of Criminal Investigation (DCI) systems.

[10]The Licensing Officer further stated that whenever one applies for a PSV Badge the system detects the Police Clearance Certificate (PCC) and if the PCC has an outstanding remark the process of application cannot proceed.

D. Issues For Determination [11]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 Tribunal has jurisdiction to hear the matter?2. Whether the Appellant has proved that the matter presented was ripe and moot to be heard by the tribunal?

E. Analysis And Determination1. Whether the Tribunal has jurisdiction to hear the matter?

[12]Jurisdiction is defined in Halsbury’s Laws of England (4thEd.) Vol. 9 as;…the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for decision.”.

[13]Jurisdiction is very crucial in any judicial proceedings. Any Court acting without jurisdiction is acting in vain and all it engages in is nullity. Nyarangi, JA, in Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited [1989] KLR 1 expressed himself as follows on the issue of jurisdiction: -Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings…”

[14]Section 38 (1) of National Transport and Safety Authority Act, 2012 states;“38. (1) A person who ---(a)being an applicant for the grant or variation of a licence. is aggrieved by ` the decision of the Authority on the application;(b)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(c)being the licensee, is aggrieved by the revocation or suspension thereof, may within the time and in the manner prescribed appeal to the Appeals Board established under section 39. ”

[15]Section 39 (5) and (6) The National Transport and Safety Authority Act,2012 provides;“39 (5) The Appeals Board may, on any appeal, affirm or reverse the decision of the Authority, or make such other order as the Board considers necessary and fit.(6)Where the Appeals Board has received an appeal under this section, it shall consider that appeal and, if it determines that the grounds of appeal are frivolous or vexatious or do not disclose sufficient reason for interfering with the decision of the Authority, may summarily reject the appeal.”

[16]The sections above give Tribunal its mandate to hear and determine appeals brought before it. The appeals have to be from a decision made by the Respondent Authority, NTSA.

[17]The Supreme Court of Kenya in Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Limited & others (2012) eKLR stated as follows: -A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsels for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality, it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings … where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”

[18]In this matter however the Appellant did not make any application to the Respondent Authority hence no decision was made by NTSA. The Tribunal cannot adjudicate such matter because it is beyond the scope of its mandate.2. Whether the Appellant has proved that the matter presented was ripe and moot to be heard by the tribunal?

[19]In the matter of Anthony Miano & others v Attorney General & others [2021] eKLR32. While speaking to Ripeness doctrine the Learned Judges stated as follows: -107. The doctrine focuses on the time when a dispute is presented for adjudication. The Black’s Law Dictionary 10th Edition, [supra] at page 1524 defines ripeness as:The state of a dispute that has reached, but has not passed, the point when the facts have developed sufficiently to permit an intelligent and useful decision to be made108. Courts should therefore frown upon disputes that are hypothetical, premature or academic which have not fully matured into justiciable controversies.”

[20]In Wanjiru Gikonyo & 2 others v National Assembly of Kenya & 4 others Nairobi Constitutional Petition No. 453 of 2015 [2016] eKLR, Onguto J stated:(27)Effectively, the justiciability dogma prohibits the court from entertaining hypothetical or academic interest cases……. The court is prevented from determining an issue when it is too early or is simply out of apprehension, hence the principle of ripeness. An issue before court must be ripe, through a factual matrix for determination.”

[21]The Appellant in his appeal did not show any proof that he applied for a PSV Badge and the Respondent Authority made a decision against the application. This matter was hypothetical and did not have a backing for it.

[22]The fact that a current Police Clearance Certificate (PCC) is required for one to acquire a PSV Badge and the Licensing Officer gave evidence to the fact that once an application is made, the Respondent Authority’s servers automatically refers to the DCI servers for the applicant’s PCC and if any outstanding remarks are found the process is terminated. This does not mean that the Respondent has made a decision on the matter.

[23]The Appellant’s matter lacks the basic reason for an Appeal and that makes it not ripe for the Tribunal to determine. The Tribunal is prevented from determining an issue when it is too early or is simply out of apprehension.

F. OrdersHaving considered the facts and the law applicable to this case, the Transport Licensing Appeals Board hereby makes the following Order:a.That the matter is dismissed for lack of jurisdiction.

DELIVERED AT NAKURU BY THE TRANSPORT LICENSING APPEALS BOARD ON THIS 30TH DAY OF AUGUST 2023. Dr. Adrian Kamotho Chairperson ………………………Joseph McDonald Member ………………………Maryan Hajir Member ....................................Waithira Muiruri Member ……………………….James Ngomeli Member …….………………….