[2020] KETLABT 148 (KLR)

IN THE TRANSPORT LICENSING APPEALS BOARD

ATKITALE

APPEAL CASE NO 029 OF 2019

NJUGUNA GACHIGUA.................................................................................APPELLANT

VERSUS

THE NATIONAL TRANSPORT & SAFETY AUTHORITY...................RESPONDENT

JUDGMENT

Introduction

1. The Appellant is a director of Kangaroo Shuttle and the owner of a public service vehicle, KCN 510D, which is licensed by the Respondent Authority.

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 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.

The Appellants’ Case

3. The Appellants filed an appeal at the Transport Licensing Appeals Board (TLAB) on the 26th of August 2019 challenging the decision of NTSA to confiscate the number plates of vehicle registration number KCN 510D, an act that rendered it impossible for the vehicle to carry out business.

4. The number plates as well as the speed limiter were confiscated after the occurrence of an accident on 19th April 2019 at Kamara area along Nakuru – Eldoret road. Following the accident, an inspection of the vehicle was done on 21st April 2019 by a motor vehicle inspector from Nakuru and the driver was issued with an inspection report on 23rd April 2019. By this time, however, the number plates and speed limiter had been confiscated on 21st April 2019.

5. Upon the inspection of the vehicle on 21st April 2019, the vehicle was declared unroadworthy because of a defective speed limiter. The motor vehicle inspector from Nakuru refused to retrieve the data from the speed limiter in the presence of the owner of the vehicle. As a result, the Appellant contested the evidence found in the speed limiter and wanted it to be verified by an independent expert. The Appellant made frequent visits to the Director of the Motor Vehicle Inspection Centre in Nairobi, but the speed limiter could not be found.

6. The Appellant averred that NTSA violated his rights to fair administrative action for not communicating to the Appellant and, as a result, sought orders compelling NTSA to return the number plates and speed governor of the vehicle so that they can resume business.

Respondents’ Case

7. The Respondent submitted that the vehicle in question still had a road service license and, as such, the Respondent had not interfered with its licensing. It was argued that the action of confiscating the number plates and speed limiter did not arise from a licensing decision and, as such, the case falls outside the jurisdiction of the Transport Licensing Appeals Board.

8. Determination

Following the evidence adduced by the parties before the Transport Licensing Appeals Board, the Board has isolated the following issue for determination whether:

i. The Transport Licensing Appeals Board has jurisdiction to hear this matter.

ii. NTSA violated the Appellant’s rights to fair administrative action.

Whether TLAB has jurisdiction to hear this matter

9. According to section 4 of the National Transport and Safety Authority Act No. 33 of 2012, NTSA has the authority to plan, manage and regulate the road transport system in accordance with the provisions of the Act. It also has the responsibility for ensuring the provision of safe, reliable and efficient road transport services.

10. To discharge the mandate under section 4, NTSA is also empowered, through section 30 of the NTSA Act No. 33 of 2012, to cancel or vary conditions attached to a licence, on its own motion or on the application of a licensee.

11. Further, section 29 of the NTSA Act 2012 states that: “The Authority may grant or decline to grant any application for a licence, or grant a licence subject to such conditions as it may consider fit to impose, and, in exercising its discretion, the Authority shall have regard to the public interest, including the interest of persons requiring and those of persons providing facilities for transport, and to such other matters as may be prescribed…”

12. The removal of number plates was informed by a decision of a motor vehicle inspector from NTSA. We find that the issuance or removal of number plates is a condition that is connected directly with the enjoyment of a license issued by NTSA. Given that the removal of number plates renders it impossible for a vehicle to operate, it is a condition that goes to the heart of the licensing decision of NTSA. It is on this basis that we find that the Transport Licensing Appeals Board has jurisdiction to hear this matter.

Whether NTSA violated the Appellant’s Right to Fair Administrative Action.

13. The accident in question occurred on 19th April 2019 and an inspection of the vehicle was done on 21st April 2019, when the number plates as well as speed limiter were confiscated. However, the inspection report was issued on 23rd April 2019.

14. This indicates clearly that the administrative actions of confiscating the number places and speed limiter were effected well before the Appellant was given the information in the inspection report.

15. The need to be given prior notice and reasons for an administrative action that affects a person negatively is now a fundamental right under Article 47 of the Constitution, which is given effect by the Fair Administrative Action Act 2015. Section 4 of the Fair Administrative Action Act (2015) provides that:

“(2) Every person has the right to be given written reasons for any administrative action that is taken against him.

(3) Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision-

(a) prior and adequate notice of the nature and reasons for the proposed administrative action;

(b) an opportunity to be heard and to make representations in that regard;

(c) notice of a right to a review or internal appeal against an administrative decision, where applicable;

16. As a result, all administrative bodies are under an obligation to respect this right and the failure to do so invalidates the administrative action taken. As Kaluma notes:

“Notice is a condition precedent to fair hearing. Any hearing undertaken without due notice to the affected party violates the requirements of natural justice, is null and void and lends itself to being quashed … notice to be good should contain sufficient detail to enable one to fully appreciate the charge or complaint he is to face. The details requiring specific mention in a notice include the complaint or charge, the time, day and location of the incident charged or matter complained about … the action proposed to be taken and the grounds on which the charge or complaint is based.” (Peter Kaluma, Judicial Review: Law Procedure and Practice (LawAfrica, Second Edition, 2012), p. 178. )

17. In light of the above, the administrative action taken against the Appellant cannot be allowed to stand when the constitutional rules of procedurally fairness are not adhered to.

18. Having considered the facts and the law applicable to this case, the Transport Licensing Appeals Board hereby makes the following orders:

1. That the Transport Licensing Appeals Board has jurisdiction to hear this matter.

2. That the Appellant’s right to fair administrative action was violated.

3. That the decision to confiscate the number plates and speed limiter was unlawful.

4. That NTSA should give back to the Appellant the confiscated number plates as well as the speed limiter, within seven (7) days of this order.

5. That this order be served upon NTSA and the Traffic Commandant.

Delivered, dated, and signed in Kitale by the Transport Licensing Appeals Board on this 10th day of January 2020.

Dick WaweruChairman

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Aden Noor Ali Member

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Betty Chepng’etich Bii Member

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