[2023] KETLABT 679 (KLR)

Opagala v National Transport and Safety Authority (Appeal E028 of 2022) [2023] KETLABT 679 (KLR) (23 August 2023) (Judgment)

Neutral citation: [2023] KETLABT 679 (KLR)

Republic of Kenya

In the Transport Licensing Appeals Board Tribunal

Appeal E028 of 2022

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

August 23, 2023

Between

Richard Elly Opagala

Appellant

and

National Transport And Safety Authority

Respondent

Judgment

1. The Memorandum of Appeal herein is dated 25TH July, 2022. The Appellant, Richard Elly Opagala, having been aggrieved by the decision of National Transport and Safety Authority (NTSA) on 25th July 2022 at Bungoma, seeks to appeal against the decision.

2. The Appellant is a male adult of Identification Number 14530217 resident of Bungoma County and a holder of a driving license issued by the Respondent.

3. 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 4. The Appellant claimed that the Respondent failed to feed into their system and the Appellant’s TIMS account class ‘A’ which is a class he previously held. This is contrary to the law.

5. He further claimed that this was done even after he gave the Respondent a copy of his license with pre-requisite qualification that he had acquired in 2009. The Appellant’s explained that his old red book driving license has all the classes that is including class ‘A'.

6. The Appellant also claimed that the Respondent went as far as printing out the smart Driving License excluding class ‘A’ and sighting that the Appellant go back to driving school for it to be endorsed a fresh.

7. The Respondent has denied the Appellant’s use of his Airtel line to transact business with the sighting that their servers don’t recognize such numbers. It only recognizes Safaricom lines yet his Airtel number is registered under his name.

Respondent’s Case 8. The Respondent Authority stated that after discussion with the Appellant they have agreed that he will change his line from Airtel to Safaricom and the Respondent shall assist him get other licenses but for class ‘A’ the board will decide on.

Issues for Determination 9. Following the arguments made and evidence adduced by the parties before the tribunal during the trial, the following issue has been extrapolated for determination:i.Whether the Appellant has the right to have the class removed from his driving license during variation restored by the respondent?

Analysis and Determination Whether the Appellant has the right to have the class removed from his driving license during variation restored by the respondent? 10. Section 82 of the Traffic Act, 2015 states;“82. Particulars of endorsement to be inserted in new licenceOn the issue of a driving licence or provisional driving licence to any person, the particulars endorsed on any previous licence held by him shall be inserted in the new licence, unless he has previously become entitled under section 84 to the issue of a licence free from endorsement.” [Emphasis Added]

11. The Appellant has provided the tribunal the red book driving license and in it the class ‘A’ was included. According to the law the variation of the license from red book driving license to a smart driving license it should include all the classes in the red book driving license.

12. Under Section 33 of the Traffic Act,2015 it provides that;“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: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.(2)If the applicant for a driving licence fails to produce his birth certificate, the opinion of the licensing officer shall be conclusive as to a person’s age.”

13. All these requirements have been met by the Appellant and thus informing the tribunal to come the conclusion that the Appellant has the right to have the class removed restored.

ORDERS 14. The Transport Licensing Appeals Board hereby makes the following ORDER:I.That the Respondent (NTSA) has complied with the request of the Appellant on the matter of the Safaricom and airtel line and thus the issue settled and consented by both parties.ii.That the Respondent (NTSA) to issue the Appellant with a smart driving license with all the endorsements (A) within fourteen (14) days.iii.That each party shall bear its own costs.

DELIVERED AT BUNGOMA BY THE TRANSPORT LICENSING APPEALS BOARD ON THIS, 23RD DAY OF AUGUST 2023. DR. ADRIAN KAMOTHO Chairperson …………………..JOSEPH MCDONALD Member …………………..MARYAN HAJIR Member …………………..JAMES NGOMELI Member …………………..WAITHIRA MUIRURI Member …………………...