[2018] KETLABT 22 (KLR)

REPUBLIC OF KENYA

MINISTRY OF TRANSPORT AND INFRASTRUCTURE

TRANSPORT LICENSING APPEALS BOARD

APPEAL NO. 2 OF 2018

JUDGMENT

SMOKE CITY SACCO…….…..................................................………APPELLANT

VERSUS

NATIONAL TRANSPORT AND SAFETY AUTHORITY..………RESPONDENT

INTRODUCTION

1. The Appellant is a SACCO that is registered under the Cooperative Societies Act (Cap 490) and licensed by the Respondent to operate public service vehicles.

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. The Appellant filed an appeal at the Transport Licensing Appeals Board (TLAB) on the 7th February 2018 on the grounds that they were unfairly denied an application for a new route, namely Nairobi-Kitengela-Kajiado-Namanga and back.

4. The Appellant averred that the Respondent’s decision was contrary to the Fair Administrative Action Act 2015, as the Respondents had failed to give any valid reason for the denial of the new route and that the reasons advanced were not only malicious, but also infringed the Appellants right to operate and carry out business.

5. It was the Appellant’s case that upon making an application for the new route on the 14th August 2017, they were summoned by a staff of the Respondent to collect the letter allowing route extension.

6. It was the Appellant’s case that when they went to collect the letter at the Respondent’s offices, they were shown the letter, but asked to part with KES 500,000 as a facilitation fee. They refused and escalated the matter to the concerned person within the Respondent’s offices.

7. That the Appellant received a letter dated 29th January 2018 purporting to put on hold their application for the new route on the grounds that investigations were going on as a result of the bribery allegation that they had reported.

8. The Appellant relied on a letter from Kajiado County Government dated 20th November 2017, which had given them the authority to pick and drop passengers within Kajiado County. It is this letter they relied upon to apply for a route extension to the Respondent. The Appellant relied on the testimony adduced in court by Moses Meeri, the Kajiado Sub County Administrator, who confirmed that he was the author of the letter from Kajiado County Government.

9. The Appellant averred that the Respondent’s action was a clear violation of Article 47(1) of the Constitution and by extension Section 4(1) of the Fair Administrative Action Act of 2015 because it failed to accord the Appellant an expeditious, lawful and reasonable request to his application dated 14th August 2017.

The Respondent’s Case

10. It was the Respondent’s case that the letter that was purportedly issued by Kajiado County Government to the Appellant was a forgery.

11. It was the Respondent’s case that the Appellant should not be given a route extension given that the documents used for the application were not authentic.

12. The Respondent urged TLAB to follow its jurisprudence in Sony Trading Company Ltd v NTSA and Sony Classic Shuttle East Africa Ltd TLAB Appeal Case No. 54 of 2017 where the honorable tribunal in para 26 held that; ‘Nowthat the evidence of an illegality has been adduced before the tribunal and has been proven to our satisfaction, the tribunal is duty bound to ensure that it does not enforce an illegality’.

13. The Respondent averred that the person authorized to issue letters of picking and dropping on behalf of the County Government of Kajiado was not aware of it and did not consent to the issuance of the letter.

14. It was the Respondent’s claim that such act of illegality by the Appellant was in contravention of section 40 (2) of the National Transport and Safety Act.

15. It was the Respondent’s position that based on the act of illegality discussed above, the Appellant did not come to equity with clean hands.

ISSUES FOR DETERMINATION

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

a. Whether the Appellant used forged documents to apply for a route extension.

b. Whether the Appellant was indeed issued, by the Kajiado County Government, with the authority to pick and drop passengers within Kajiado County.

c. Whether the Respondent’s reasons for the denial of the new route were valid and in line with Article 47(1) of the Constitution of Kenya as read together with Section 4(1) of the Fair Administrative Action Act 2015.

Whether the Appellant used forged documents to apply for a route extension.

17. The forgery claims made by the Respondent were countered by the testimony of the County Sub Administrator, who confirmed that he was the author of the document in question.

18. According to section 107 (1) and (2) of the Evidence Act, Cap 80 of the Laws of Kenya:

“(1) whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

(2) When a person is bound to prove the existence of facts it is said that the burden of proof lies on that person”

Section 109clearly states that” The burden of proof as to any particular facts lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

It is the finding of this Board that the Respondent did not prove, on a balance of probabilities, that the letter relied upon by the Appellant was a forgery. Indeed, one of the letters written by the Respondent confirms that the Authority had received a letter from Kajiado County Government giving authority to the Appellant to operate in Kajiado.

Whether the Appellant was indeed allocated a picking and dropping bay by the Kajiado County Government.

19. The Respondents averred in their submissions that the letter that was attached by the Appellant in their application for route extension did not explicitly state that the SACCO had been given a picking and dropping bay within Kajiado.However, the testimony by the Kitengela Sub-county Administrator, Moses Meeri, showed that the letter that the Appellant got was the standard authority letter issued to other PSV operators within the county. The county does not specify the specific picking and dropping zones. We, therefore, find that the Appellant had been given the authority to operate within the county.

Whether the Respondent’s reasons for the denial of the new route were valid and in line with Article 47(1) of the Constitution of Kenya as read together with Section 4(1) of the Fair Administrative Action Act 2015

20. The reason given by the Respondent for not granting the route extension was that the Authority was investigating the bribery allegations made by the Appellant. It is our view that there is no rational connection between the grant of the route extension and the investigation of the bribery claim. This is because the grant of a route extension would not affect or slow down the investigative process for bribery. It was, therefore, not reasonable to subject the Appellant to prejudice for reporting bribery claims. Doing so was contrary to Article 47 (1) of the Constitution, which provides that “every person has a right to an administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

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

1. The decision of the Respondent to deny a route extension to the Appellant is reversed.

2. The Respondent to grant a route extension to the Appellant for Nairobi- Kitengela-Kajiado- Namanga and back.

Delivered, dated, and signed in Kajiado by the Transport Licensing Appeals Board on this 27th March 2018

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

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

Aden Noor Ali Member ……………………….

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