[2019] KETLABT 85 (KLR)

REPUBLIC OF KENYA

IN THE TRANSPORT LICENSING APPEALS BOARD

AT ELDORET

APPEAL CASE NO 7 OF 2019

TRANS VALLEY SACCO.......................................................................................................................1ST APPELLANT

KAPSOWAR SHUTTLE SACCO..........................................................................................................2ND APPELLANT

VERSUS

NATIONAL TRANSPORT AND SAFETY AUTHORITY .............................................................1ST RESPONDENT

TRAFFIC COMMANDANT- ELGEYO MARAKWET COUNTY................................................2ND RESPONDENT

COUNTY SECRETARY- ELGEYO MARAKWET COUNTY......................................................3RD RESPONDENT

HEAD OF ENFORCEMENT - ELGEYO MARAKWET COUNTY............................................4TH RESPONDENT

INTERESTED PARTY..........................TAXI WELFARE ASSOCIATION OF ELGEYO MARAKWET COUNTY

RULING

Introduction

1. The Appellants are Savings and Credit Cooperative Societies (Saccos) that are registered under the Cooperative Societies Act (Cap 490). They are licensed by the First Respondent Authority to operate public service vehicles.

2. The First 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.

3. The Second Respondent is the Traffic Commandant of Elgeyo Marakwet County.

4. The Third Respondent is the County Secretary of Elgeyo Marakwet County.

5. The Fourth Respondent is the Head of Enforcement in Elgeyo Marakwet County.

6. The Interested Party is the Taxi Welfare Association of Elgeyo Marakwet County.

7. The Respondents, during the hearing on the 21st of June, 2019, challenged the jurisdiction of this Tribunal and it is on this basis that this ruling is grounded.

Background

8. The Appellants filed an appeal at the Transport Licensing Appeals Board (TLAB) through a Memorandum of Appeal dated 18th March, 2019. The appeal was grounded on the allegations that the Respondents had failed to respond to the Appellants’ complaints regarding illegal operators that were conducting matatu business without proper licences.

9. According to the submissions made by the Appellants, the bone of contention was whether Probox vehicles were licensed to conduct matatu business.

Reasoning

10. It will be premature for this Board to transverse the issues raised by various parties during the trial before dealing with the issue of jurisdiction. In Owners of The Motor Vessel “Lilian S” vs. Caltex Oil (K) Ltd [1989] KLRIt was held that wherethe court lacks jurisdiction to entertain the dispute ab initio, it ought to down its tools before taking one more step.

11. 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. This section provides for Appeals against decision of Authority by stating:

“A person who—

a)being an applicant for the grant or variation of a license, is aggrieved by the decision of the Authority on the application;

b)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

c)being the licensee, is aggrieved by the revocation or suspension thereof, may within the time and in the manner prescribed appeal to the Appeals Board established under section 39. ”

12. Section 38 the National Transport and Safety Authority Act, 2012 sets out the elements that have to be satisfied in order to confer jurisdiction of a matter on this Board. In essence, it provides that TLAB can only assume jurisdiction when NTSA has made a licensing decision. In the present case, NTSA had not made a licensing decision given that the licensing of taxi vehicles was under the mandate of the County Government.

Determination

Having considered the facts and the law applicable to this case, the Transport Licensing Appeals Board hereby orders: THAT this appeal is dismissed for want of jurisdiction.

Delivered, dated, and signed in Eldoret by the Transport Licensing Appeals Board on this 13th day of September 2019.

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

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

Moses ParantaiMember ...................................

Aden Noor Ali Member ...................................

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