Kabenes Sacco Ltd v National Transport & Safety Authority [2019] KETLABT 83 (KLR)

IN THE TRANSPORT LICENSING APPEALS BOARD AT ELDORET

APPEAL CASE NO 010 OF 2019

KABENES SACCO LTD.....................................................APPELLANT

VERSUS

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

(Being an appeal from the decision of the National Transport and Safety Authority declining the Appellant’s application for route extension to Eldoret- Kiplombe- Kaboi- Soy- Kipsangui- Kabenes and back.)

JUDGMENT

Introduction

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

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.

Background

3.  The Appellant filed an appeal at the Transport Licensing Appeals Board (TLAB) via a Memorandum of Appeal dated 4th April, 2019. The appeal was occasioned by the failure of the Respondent to extend the Appellant’s route to Eldoret- Kiplombe- Kaboi- Soy- Kipsangui- Kabenes and back.

4.  The Appellant appealed against the decision of the Respondent on the ground that it had not received any written communication in response to its application for route extension made in November 2018.

5.  The Appellant prayed that this Board makes a fair and final decision on this matter.

Appellant’s case

6.  The Appellant submitted that it made its first application for route extension to the Respondent Authority via a letter dated 20th July, 2018. The application was declined. The Appellant further submitted that the Respondent cited non-compliance as the reason for declining the application.

7.  The Appellant complied and made another application of the same nature, in November 2018. The Appellant submitted that it had not received any written communication from the Respondent in response to the second application.

8.  During the trial, on 13th May, 2019, the Appellant called two witnesses; Humphrey Wabwire Owori and Peter Kurui, the Chairperson and the Vice Chairperson of the Appellant Sacco respectively. They both testified that the Appellant and the National Transport and Safety Authority(NTSA) Regional Manager had carried out a survey of the route, which was the subject of this appeal.

9.  It was the Appellant’s case that the route survey revealed that even though part of the road was still under construction, it was accessible and passable, as the contractor had created diversions. The Appellant further submitted that they used a low suspension vehicle to conduct the route survey and that it accessed the road with ease.

10. During the hearing, on 2nd July, 2019, the Appellant called an additional two witnesses, namely Michael Kirwa, a new member of the Appellant Sacco, from Kiplombe Sacco and Kipkemei Arap Kogo, a farmer from Kaboi.

11. Michael testified that Kiplombe Sacco, which was previously plying the route of Eldoret- Kiplombe- Kaboi- Soy- Kipsangui- Kabenes and back, had joined the Appellant Sacco. He confirmed the Appellant’s averments that the route existed before the construction began and Public Service Vehicles had access to it.

12. Kipkemei Arap Kogo highlighted that it would be in the interest of the public to have the Appellant’s application for route extension granted, as the local community had no access to Public Service Vehicles (PSV), which they were in dire need of.

13. The Appellant further submitted that it had obtained a letter from the County Government of Uasin Gishu, dated 13th June, 2018, allocating it slots at the stage for the Eldoret- Kiplombe- Kaboi- Soy- Kipsangui- Kabenes and back route, the subject of this appeal.

Respondent’s case

14. During the trial, the Respondent submitted that the reason why the route extension was declined was that the Public Service Vehicles (PSV) regulations provided that a route had to be tarmacked for it to be usable. This was because of the need for signage, speed limits and bumps.

15. The Respondent submitted that it had no objection to the Appellant’s application. The only reservation the Respondent had was that the County Government of Uasin Gishu had to confirm that the road was accessible and could be used by Public Service Vehicles (PSV).

16. In honor of the summons issued by the Board, Engineer Linus Yego, a representative of the Department of Roads from the County Government of Uasin Gishu, appeared before the Board on 5th August, 2019. He testified that construction of the road was still ongoing. He further stated that the road was partially complete and there were vehicles using the road through diversions.

17. The Respondent confirmed that the Appellant had no pending compliance issues.

Reasoning

18. The Board took into consideration the fact that the Respondent had no objection to the Appellant’s application for route extension. The only reservation the Respondent had was that the County Government of Uasin Gishu needed to confirm that the road was accessible and could be used by Public Service Vehicles (PSV). This was confirmed by the testimony of Engineer Linus Yego.

Determination

The Transport Licensing Appeals Board finds that there was no reason to decline the Appellant’s application for route extension to Eldoret- Kiplombe- Kaboi- Soy- Kipsangui- Kabenes and back and makes the following orders:

1.   THATthe Respondent is compelled to grant the Appellant, within seven (7) days of this order, the route extension applied for, namely: Eldoret- Kiplombe- Kaboi- Soy- Kipsangui- Kabenes and back.

2.   THATthis Order be served upon the Respondent and the Traffic Commandant with a view to ensuring that, from the date of this order, Kabenes Saccois allowed to ply the route of Eldoret- Kiplombe- Kaboi- Soy- Kipsangui- Kabenes and back.

Signed and dated at ……Eldoret Law Courts…. by the Transport Licensing Appeals

Board on this …27th …. day of August…… 2019

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

Moses ParantaiMember                                 ……………………….

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

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