[2020] KETLABT 136 (KLR)

REPUBLIC OF KENYA

TRANSPORT LICENSING APPEALS BOARD

APPEAL NO. 038 OF 2019

STELLA GAKII NJAGI …....................................................….…………APPELLANT

VERSUS

NATIONAL TRANSPORT AND SAFETY AUTHORITY …………RESPONDENT

JUDGMENT

Introduction

1. The Appellant is a holder of a BCE license issued by the Respondent. She has been driving under the license for the last nine years.

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.

Appellant’s Case

3. The Appellant made an application dated 17th September 2019 to the Respondent Authority for the endorsement of Class B Professional in her license in order to enable her drive a PSV cab. The Respondent Authority acknowledged receipt of the application on 9th October 2019.

4. The Appellant averred that she had complied with section 33 of the Traffic Act (Cap 403), which requires one to be over twenty-four years and to have held, for more than four years, a license endorsed in respect of motor cars or commercial vehicles.

5. The appellant argued that the Respondent did not respond to her application for the endorsement. She also claimed that NTSA had blatantly and/or willfully refused to endorse her driving license for class B professional.

6. The appellant averred that due to the failure of the respondent authority to endorse her license, she was unable to work as an online PSV cab driver hence was unable to support herself and her family financially. She was also unable to finance the car loan.

7. The Appellant produced her certificate of good conduct and averred that she had no record of criminal or traffic offences.

8. The appellant therefore filed a Memorandum of Appeal dated 30th October 2019 and a letter addressed to the board on 30th October 2019.

Respondent’s Case

9. The Respondent Authority did not have an objection to the Appellant’s application.

10. The respondent Authority stated that it will be guided by the orders of the tribunal and will honour the orders issued by the honourable board.

Determination

11. Following the arguments made and evidence adduced by the parties before the Transport Licensing and Appeals Board during the trial, the Board has extrapolated one issue for determination whether:

Whether the appellant is entitled to class B Professional in her license.

12. To address the issue comprehensively, it is noteworthy to reiterate the provisions of section 33 of the Traffic Act. It states that:

(1) No driving licence or provisional licence shall be granted to any person

(i) under the age of sixteen years;

(ii) under the age of eighteen years, except in respect of motorcycles; or

(iii) endorsed in respect of matatus and motor-omnibuses, unless he

(a) is over the age of twenty-four years; and

(b) 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.

13. Since the appellant has complied with the requirements of section 33 of the Traffic Act and the Respondent Authority has no objection to the application, the appellant has the right to have her license endorsed with class B Professional.

Having considered the facts, evidence adduced and the relevant law, the Transport Licensing Appeals Board hereby makes the following orders:

1. THAT the Appellant is entitled to the endorsement of Class B Professional in her license and should use this order as proof of this entitlement.

2. THATthe Respondent endorses Class B Professional in the license of the Appellant within seven days.

Delivered, dated, and signed in Nairobi by the Transport Licensing Appeals Board on this 20th day of January 2020.

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

Moses ParantaiMember ………………………

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