[2019] KETLABT 84 (KLR)

REPUBLIC OF KENYA

IN THE TRANSPORT LICENSING APPEALS BOARD

AT NAIROBI

APPEAL CASE NO. 08 OF 2018

RENGCOM COMMUNICATION LTD............................................APPELLANT

VERSUS

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

JUDGMENT

Introduction

1. The Appellant Company is a corporate body that is registered under the Companies Act, Cap 486, of the Laws of Kenya. It is licensed by the Respondent to operate public service vehicles along the Nairobi – Nakuru – Busia route as a long distance operator.

2. The 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.

The Appellant’s Case

3. Through a letter dated the 4th of October, 2018, the Respondent informed the Appellant that its license to operate as a public service vehicle operator had been suspended as a result of an accident that occurred on the 28th of August 2018 along the Nairobi – Nakuru highway, where the driver of motor vehicle registration number KCL 414C had been driving recklessly risking the lives of passengers on board and other road users.

4. The Appellant filed an appeal at the Transport Licensing Appeals Board (TLAB), on the 31st of October 2018, after its suspension. The appeal was based on the grounds that: NTSA failed to give the Appellant the right to a hearing before suspending their license to operate; NTSA failed to give notice of their intended action; the Appellant had addressed all the issues that NTSA wanted it to address; the Respondent’s action had breached the Appellant’s legitimate expectations; and NTSA lacks jurisdiction to impose collective punishment on all the members of the Appellant;

5. The Appellant averred that it had done all that it could have done within its powers to be compliant and to operate within the purview of the Traffic laws. As a result, it was the contention of the Appellant that the actions of the Respondent were taken in bad faith with a view to passing the blame to the Appellant instead of exercising their powers to deal with errant drivers through the revocation or suspension of their licenses, a power that the Appellant does not have.

6. To prove that they had taken sufficient action, the Appellant relied on a letter from the Respondent dated the 30th of August 2018, summoning them to appear at the Respondent’s Head Office on the 3rd of September 2018 due to the alleged violation of licensing regulations. The Respondent in the same letter also required the Appellant to present some listed vehicles to Likoni Motor Vehicle Inspection Unit for compliance check and also to submit the driving license and PSV badge of the affected driver. The Appellant contended that they complied with all of these requirements.

7. In another letter, dated the 17th of September 2018, addressed to the NTSA’s Director General, the Appellant refers to the consultative meeting held with the Respondent on the 3rd of September 2018 and confirms that it complied with the recommendations of the Respondent, which included the presentation of motor vehicle registration number KCL 414C to the Motor Vehicle Inspection Centre. The same letter informed NTSA that the Appellant had presented the driver of the same motor vehicle to the police and he had already taken a plea at the Traffic Court in Milimani. The Appellant humbly requested that the indiscipline of one of their drivers should not lead to a blanket condemnation of the whole company. They reiterated their commitment to cooperate fully with the Respondent and to observe all regulations.

8. The Respondent suspended the operations of the Appellant on the 11th of October 2018 citing the continued violation of the Operation of Public Service Vehicle Regulation of 2014, the Traffic Act and the refusal to abide by the instructions given by the Respondent. The Appellant was required to effect the following:

a. Have all their vehicles comply with the legally required branding as per the Operation of Public Service Regulation 2014;

b. Have all their vehicles inspected at the NTSA motor vehicle inspection centre and also have the required RSLs and PSV badges;

c. Reinstate the fleet management system will all the vehicles with RSL being reflected and trackable and the password being shared with the Authority;

d. Undertake road safety training for all drivers, conductors and officials.

9. In a letter dated the 15th of October 2018, the Appellant’s advocate averred that the Respondent acted unlawfully and arbitrarily when they suspended the operations of the Appellant which resulted into a blatant breach of their legislative and constitutional rights. In the same letter, the Appellant contested that the collective punishment imposed on them allegedly amounted to unfair treatment which was unethical and a blatant violation of Article 232 (1) of the Constitution.

10. The Appellant went on to adduce evidence to counter the allegations that had been lodged against them by the Respondent in their reply to the Appellant’s Memorandum of Appeal. They claimed that the lodged allegations were false as in the alleged instances, the Appellants were the victims rather the perpetrators to which they supported their claim by producing letters from the Kenya Police that supported their point of view.

11. It is further claimed that according to section 34 of the National Transport and Safety Authority Act of 2012, the Respondent does not have the mandate to suspend a whole fleet but can only suspend a vehicle or a number of vehicles that are owned by an entity. In this particular case, the Appellant averred that they could not be suspended due to the wrongdoing of one motor vehicle, registration number 414C, which had even been inspected and issued with a certificate of compliance by the Respondent.

12. The Appellant alleged that after obtaining interlocutory orders from the Honourable Tribunal on the 5th of November 2018 that they resume operations, the Respondent unilaterally and without any form of communication given to them, reduced their fleet number from thirty four (34) vehicles to nineteen (19) vehicles. The Appellant claims that, as a consequence of this, they have been forced to bring their PSV business to a halt occasioning them monumental losses.

13. In a letter that was received by the Respondent on the 7th of January 2019, the Appellant requested to be granted access to their online system so that they could issue P.S.V and R.S.Ls to their vehicles as the Appellant relies on the Respondent to issue to them the P.S.V and R.S.Ls which they remit to their vehicles. They also wanted to check the status of their vehicles as they could not be traced on the NTSA online application.

14. The Appellant appeared before the Transport Licensing and Appeals Board seeking for the suspension order to be set aside, the portal to be opened so that the Appellant could resume its PSV operations and for the Appellant to be given time to comply with the PSV Regulations and also for its request to have its route extended considered so that it can serve its long distance customers.

The Respondent’s Case

15. It was the Respondent’s case that the decision to suspend the Appellant’s RSL was as a result of the failure to comply with the PSV Regulations and to satisfactorily show cause why its operations should not be suspended. The Respondent avers that the decision to suspend was not influenced by only one reckless driving incident by the Appellant but was informed by the numerous fatal crashes that the Appellant Company has been involved in dating back to 2016. The various incidents include the driving incident that arose on the 28th of August 2018 along the Nairobi – Nakuru highway where vehicle registration number KCL 414C, where the Appellant’s driver was driving recklessly risking the lives of the passengers on board and other road users. As a result of this incident, the Respondent invited the Appellant to a meeting on the 3rd of September 2018 to discuss their violation of licensing regulations and also a way forward.

16. The Respondent contends that the NTSA Act enables the Authority to impose conditions while issuing a license to a transport operator which must be complied with, the failure to which the Authority is empowered to either revoke or suspend the licence by invoking Section 34 of the Act. The Respondent alleges that the power that is bestowed on the Authority is grounded on the basis that passengers will be transported in a safe, efficient and reliable environment rather than the commercial relations to be gained by the Appellant and its employees.

17. The Respondent conceded that they lifted the suspension of the Appellant following the ruling made by the Tribunal but thereafter, the Respondent found out that the Appellant had nineteen (19) serviceable motor vehicles which is below the minimum requirement of having thirty serviceable vehicles as provided by the Operation of Public Service Vehicles Regulations of 2014. The Respondent alleges through their reply to the Memorandum of Appeal that they notified the Appellant and gave them fourteen (14) days to comply, the failure to which the Authority would take appropriate action.

18. It was the Respondent’s contention that they had operated within the law and that it was clear that the Appellant is a non-compliant transport operator and its decision to suspend the operations were exercised fairly within the mandate given to it by the law.

Determination

19. Following the evidence adduced by the parties before the Transport Licensing Appeals Board, the Board has isolated the following issues to be the ones requiring a determination:

1. Whether the appellant’s right to a fair hearing was violated?

2. Whether the Appellant’s legitimate expectations were breached by the Respondent?

3. Whether the Respondent has the jurisdiction to impose collective punishment on the Appellant?

Whether the appellant’s right to a fair hearing was violated?

20. The contention by the Appellant that his right to a fair hearing was violated was based on the fact that he was not given notice and a hearing before its operational license was suspended and after their portal was closed due to having a minimum number of serviceable vehicles.

21. However, it is the case that both the Appellant and Respondent confirmed before the Board that there had been consultations between the two, where even a meeting was held with a view to ensuring that the Appellant complied with the law. Apart from the meeting held and the letters exchanged between the parties, the Respondent had sent a notice to the Appellant to show cause why the authority should not suspend the license issued to the Appellant. In the same letter, the Respondent had indicated that the Authority would consider further action should they be found in any other violation of the public service vehicles regulation. Given that the two parties had been in constant consultation with each other over various violations of the law, it is the case that a fair hearing was given before the suspension of the license on 4th October 2018. In the circumstances, we find that the Respondent did not violate the Appellant’s right to a fair hearing.

22. It was the Appellant’s claim that the Respondent shut down the Appellant’s portal without giving any reasons to the Appellant. However, through a letter dated 8th November 2018, the Respondent satisfied the tribunal that they had indeed notified the Appellant that they had 19 instead of the minimum requirement of 30 vehicles.

Whether the Appellant’s legitimate expectations were breached by the Respondent?

23. It is important to determine whether the Respondent respected the Respondent’s legitimate expectation whilst suspending the Appellant’s RSL and in also pulling down the Appellant’s portal functionality.

24. The Appellant contended, through its Chairman, that they had been committed to complying with all of the Respondent’s conditions and the PSV Regulations. They averred that their drivers had participated in the PSV Drivers Refreshers Course at the Kabete National Polytechnic and they produced the various certificates of participation before the court. They also produced the certificates of compliance that were issued to the buses that underwent inspection inclusive of the bus that was in the wrong, motor vehicle registration number KCL 414C which was issued with a certificate of compliance on the 4th of September 2018. As argued by the Appellant’s, this shows that the Appellant was committed and willing to cooperate with the Respondent to ensure that full compliance is achieved.

25. It was important for the Authority should have then informed the Appellant that their compliance efforts would not count towards influencing the decision of the Respondent. Instead of this, the suspension letter issued by the Respondent cites violations that had already been cured by the Appellant. This is then a breach of their legitimate expectations contrary to Section 7 (2) (m) of the Fair Administrative Action Act of 2015.

Whether the Respondent has the jurisdiction to impose collective punishment on the Appellant?

26. Having found that there was a breach of legitimate expectation, it would not be necessary to examine this question, as the answer to it would not change the decision of the tribunal.

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

1. A declaration that the Respondent Authority did not violate the Appellant’s right to a fair hearing.

2. A declaration that, due to the breach of the Appellant’s legitimate expectation by the Respondent, the decision to suspend the Road Service License is set aside with immediate effect.

3. THAT the respondent restores the Appellant’s portal functionality within 7 days from the date of this Judgement so as to enable the Appellant comply with the PSV Regulations and also for the Appellant to resume their PSV operations.

4. That this order be served upon the NTSA and Traffic Commandant with a view to ensuring that the Appellant’s vehicles are not impounded.

Delivered, dated, and signed in Nairobi by the Transport Licensing Appeals Board on this 10th day of May 2019.

Dick Waweru Chairman .....................................

Prof. Kiarie Mwaura Member ...................................

Moses Parantai Member ………………………

Aden Noor Ali Member ……………………….

Betty Chepng’etich Bii Member ……………………….