[2018] KETLABT 24 (KLR)

REPUBLIC OF KENYA

TRANSPORT LICENSING APPEALS BOARD

AT NAIROBI

APPEAL CASE NO 3 OF 2018

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

-VERSUS-

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

RULING

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 application at the Transport Licensing Appeals Board (TLAB) with the complaint that the Respondent had failed to comply with the TLAB’s judgment issued on the 27th March 2018. In the said judgment, TLAB had ordered the Respondent to grant a route extension for Nairobi – Kitengela, Kajiado – Namanga- and back.

4. As a result of non-enforcement of judgment, the Appellant claimed that they had suffered heavy losses and some of their vehicles have been repossessed by the banks for non-payment of loans.

5. It was the Appellant’s case that the Respondent should not re-open the case, as the matters in question had been adjudicated upon during the trial.

The Respondent’s Case

6. TLAB summoned Mr. Francis Meja, the Director General of the Respondent Authority to explain the circumstances leading to the non-enforcement of judgment. He was summoned through letters dated 25th April 2018, 2nd May 2018 and 14th May 2018.

7. The Director General appeared in court om 22nd May 2018 and explained that they had failed to comply with the court order because the letter authorizing the appellant to ply the route of Nairobi, Kitengela, Kajiado, and Namanga was not issued by the authorized person in Kajiado County Government. The letter of authority had been issued by the sub county administrator of Kajiado East. The Director General was, however, aware that the sub county administrator had appeared in court and had been cross-examined by the Respondent’s advocate. It was the Respondent’s case that the transport decisions at the county level are taken by the Transport Committee.

8. The Respondent also argued that they had complied with the court order, as they had given the Appellant a conditional license, the condition being that they submit a letter of authority to operate from the County Executive Committee (CEC) Member in charge of Transport in Kajiado, Hon Jackline Koin. The Respondent relied on a letter from the County Government of Kajiado and signed on behalf of Hon. Jackline Koin indicating that the letter of authority to operate did not originate from the approving authority.

9. It was the Respondent’s case that TLAB was functus officio and should, therefore, not re-open the case given that it had already issued a judgment in the case. The Respondent also averred that the powers to enforce the judgment lie in the High Court rather than TLAB.

Determination

1. Following the arguments adduced in court, the Board has isolated the following issues to be the ones requiring a determination:

a. Whether the Board became functus officio after the Judgment it delivered on 27th March 2018.

b. Whether the Board has jurisdiction to enforce its own Judgment?

c. Whether the Respondent could question, after the conclusion of the case, the validity of the letter from the sub county administrator?

Whether the Board became functus officio after the judgment it delivered on 27th March 2018.

2. Functus officiois a principle of law that prevents the re-opening of a matter before a court that rendered the final decision. It is, therefore, important to determine whether the Board was re-opening the matter when it sought to enforce its own decision. According to the case of Telkom v Ochanda(HCCC No. 216 of 2007), it is clear that re-opening of a case entails, for example, “introducing evidence or documents after the delivery of judgment,” “ordering adduction of further evidence through the filing of affidavits after the suit had been heard and concluded,” “re-opening the trial with the result of attempting to amend the judgment,” and “a merit based decisional re-engagement with the case once final judgment has been entered and a decree thereon issued.”

3. From the above, it is clearly the case that the Board was not re-opening the case, but was only enforcing its judgment without changing it. As such, the enforcement of a judgment cannot be equated to the re-opening of a matter.

Whether the Board has jurisdiction to enforce its own judgment?

(i) The Constitutional Foundation of Fair Administrative Action in Licensing

4. It was the Respondent’s case that they had partially enforced the judgment by giving a conditional licence. It is worthy of note, however, that the judgment delivered by TLAB on 27th March 2018 required the grant of a route extension without any conditions.

5. Article 47 of the Constitution entitles every person to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Similarly, where an administrative action affects or is likely to adversely affect a person, that person has the right to be given written reasons for the action. Article 47(3) contemplated legislation to give effect to the right to fair administrative action and provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and promote efficient administration.

6. To this end, the Fair Administrative Action Act, 2015 is the statute contemplated. The Act defines “administrator” as any person who takes an administrative action or who makes an administrative decision.

7. In turn, “administrative action” is broadly defined as extending to: (i) the powers, functions and duties exercised by authorities or quasi-judicial tribunals; or (ii) any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates. In exercise of its licensing authority, the NTSA is therefore an administrator and its decisions amount to administrative actions.

8. The jurisdiction of the Transport Licensing Appeals Board over the administrative actions of the National Transport Authority is set out in section 38 of the National Transport and Safety Authority Act, 2012 in the following terms:

38. Appeals against decision of Authority

a. A person who—

1. being an applicant for the grant or variation of a licence, is aggrieved by the decision of the Authority on the application;

2. 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

3. being the licensee, is aggrieved by the revocation or suspension thereof,

4. may within the time and in the manner prescribed appeal to the Appeals Board established under section 39.

9. In the exercise of its jurisdiction, the Board has the following powers under section 39 of the Act:

i. 39. Transport Licensing Appeal Board

ii. (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.

iii. (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.

iv. (7) Save as may be prescribed, the Appeals Board shall regulate its procedure and proceedings as it may consider appropriate.

10. Section 39(5) of the NTSA Act expressly empowers the Board in hearing an appeal to affirm or reverse the decision of the Authority, or make such other order as the Board considers necessary and fit. This can include any order necessary to enforce the decision of the Board on an appeal. Whilst commenting on the scope of the term “such other order as the Board considers necessary and fit” under section 39 (5) of the NTSA Act, Justice Odunga in Jaset Enterprises Ltd v The Director General National Transport and Safety Authority(JR Misc Civil Application No. 17 of 2017) says that:

“The phrase such other order as the Board considers necessary and fit coming after affirmation or reversal of the decision of the authority in my view ought to be read ejusdem generis to the two expressly specified reliefs. Further, such other reliefs can only be issued pursuant to section 11 of the Fair Administrative Action Act 2015 which provides for remedies which the High Court or a Subordinate Court may grant. “(It is worthy of note that section 11 of the Fair Administrative Action Act 2015 empowers courts and tribunals to grant any order that is just and equitable).

11. Section 7 of the Fair Administrative Action Act, 2015 underpins the administrative review jurisdiction of this Board by permitting any person who aggrieved by an administrative action or decision of the NTSA to apply for review of the administrative action or decision to thistribunal in exercise of its jurisdiction conferred under section 38.

12. In applications for review of the decisions of the NTSA, the Board has vast powers conferred under section 11 of the Fair Administrative Action Act 2015 in the following terms:

11. Orders in proceedings for judicial review.

(1) In proceedings for judicial review under section 8 (1), the court may grant any order that is just and equitable, including an order-

(a) declaring the rights of the parties in respect of any matter to which the administrative action relates;

(b) restraining the administrator from acting or continuing to act in breach of duty imposed upon the administrator under any written law or from acting or continuing to act in any manner that is prejudicial to the legal rights of an applicant;

(c) directing the administrator to give reasons for the administrative action or decision taken by the administrator;

(d) prohibiting the administrator from acting in particular manner;

(e) setting aside the administrative action or decision and remitting the matter for reconsideration by the administrator, with or without directions;

(f) compelling the performance by an administrator of a public duty owed in law and in respect of which the applicant has a legally enforceable right;

(g) prohibiting the administrator from acting in a particular manner;

(h) setting aside the administrative action and remitting the matter for reconsideration by the administrator, with or without directions;

(i) granting a temporary interdict or other temporary relief; or

(j) for the award of costs or other pecuniary compensation in appropriate cases.

13. It is clear that the Board has the jurisdiction to grant any order that is just and equitable, including an order to compel the performance by NTSA of a public duty owed in law and over which an appellant has a legally enforceable right or to prohibit the NTSA from acting in a particular manner.

14. The Board, being a tribunal, has constitutional underpinning and the status of a subordinate court. In Cornel Rasanga Amoth v Jeckonia Okungu Ogutu [2017] eKLR it was held that:

It is without a doubt that jurisdiction is granted by the Constitution or statute or both, Article 169 of the Constitution provides that Subordinate Courts are the Magistrate Courts; the Kadhi Courts; the Court Martial; and any other Court or local tribunals as may be established by an Act of Parliament, other than the courts established under Clause (1). Sub-Article 2

provides that Parliament shall enact legislation confirming jurisdiction, functions and powers on the courts established under clause (1). The Constitution therefore recognizes tribunals as part of the subordinate courts, which are established and gives jurisdiction and power by their parent Acts.

15. The power to enforce judgments is what enables this Board to remain standing authoritatively. The people of Kenya have delegated their sovereign authority under Article 3(c) of the Constitution to this tribunal and that it would be a misuse of that sovereign authority for this Board to spend scant public resources presiding over licensing disputes only to issue orders in vain.

16. In Elijah Gachuki v Jubilee Party [2017] eklr,Mwongo J affirmed the Constitutional standing of tribunals as follows:

There is a misguided perception both among legal practitioners and the laity, that tribunals are incapable or inadequately enabled to undertake serious legal and even constitutional adjudicatory roles. In our constitutional architecture, tribunals are recognised under Article 1(3)(c) of the Constitution as one of the state organs to which the peoples’ sovereign power is delegated. Under Article 159 (1) of the Constitution tribunals are among the organs to which the people of Kenya vest judicial authority to be exercised by or under the Constitution. Under Article 159(2) of the Constitution, they operate by and are guided in accordance with the same principles for the exercise of judicial authority as are the courts. Subject to their mandate, they carry the same heavy burden as the courts of applying the Constitution in obedience to the national values and principles of governance.

17. The Board is guided by this legal position as well as Section 10 (3) of the Magistrates Court Act 2015, which empowers subordinate courts (tribunals), in the case of civil proceedings, to punish wilful disobedience of any judgment, decree, direction, order, or other process of a court or wilful breach of an undertaking given to the tribunal.

18. The Act defines “magistrate's court” to mean a subordinate court established by Article 169 (1) (a) of the Constitution which is in the following terms:

The subordinate courts are any other court or local tribunal as may be established by an Act of Parliament, other than the courts established as required by Article 162(2).

19. Once a licensing dispute has been submitted to this Appeals Board, the parties to that dispute should have the confidence that this Tribunal shall decide their dispute impartially, independently and according to the law. Licensees would not bring their disputes before this tribunal if they learnt that parties are free to either obey or disobey tribunal orders at will.

20. In Hadkinson v Hadkinson (1952) 2 All ER 567, it was held that:

“It is plain and unqualified obligation of every person against or in respect of who an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.

21. In the case of Teachers Service Commission v Kenya National Union of Teachers & 2 others [2013] eKLR the learned judge Ndolo J. observed as follows:

A court order is not a mere suggestion or an opinion or a point of view. It is a directive that is issued after much thought and with circumspection. It must therefore be complied with and it is in the interest of every person that this remains the case. To see it any other way is to open the door to chaos and anarchy and this Court will not be the one to open that door. If one is dissatisfied with an order of the court, the avenues for challenging it are also set out in the law. Defiance is not an option.”

Whether the Respondent could question, after the conclusion of the case, the validity of the letter from the sub county administrator?

22. The Respondent averred that the letter of authority to operate in Kajiado was not issued by the approving authority. It was worthy of note that the sub county administrator appeared in court and was cross examined by the Respondent’s advocate. During the trial, the Respondent did not adduce any evidence to prove that the administrator did not have the authority to issue the letter. Indeed, he was able to prove that Kajiado County Government did not have a working Transport Committee. The Respondent did not adduce any evidence to the contrary. It is, therefore, unfair and unreasonable for the Respondent to adduce further evidence on a matter that had been adjudicated upon and concluded.

23. Having considered the facts and the law applicable to this matter, the Transport Licensing Appeals Board hereby finds:

1. THAT the Transport Licensing Appeals Board was not functus officio when it issued to the Director General a notice to appear in court.

2. THAT the Respondent and their agents are prohibited from arresting or harassing the Appellants or their vehicles for operating along the Nairobi, Kitengela, Kajiado, and Namanga route.

3. THAT this Judgment be served upon the Director General of NTSA and the Traffic Commandant.

Delivered, dated, and signed in Kajiado by the Transport Licensing Appeals Board on this 5h day of June 2018.

Dick Waweru Chairman ……………………….

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

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