Marimba Investments Limited v Director General of the National Transport and Safety Authority,National Transport and Safety Authority & Traffic Commandant [2018] KEHC 8629 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO.  1 OF 2018

IN THE MATTER OF AN APPLICATION FOR LEAVE TO COMMENCE PROCEEDINGS IN THE NATURE OF JUDICIAL REVIEW

AND

IN THE MATTER OF THE LAW REFORM ACT SECTION 8 AND 9 CHAPTER 26, LAWS OF KENYA

AND

IN THE MATTER OF SECTION 3,4,17 AND 34 OF THE NATIONAL TRANSPORT   AND SAFETY AUTHORITY ACT, 2012

AND

IN THE MATTER OF DIRECTIVES ISSUED BY THE DIRECTOR GENERAL OF THE NATIONAL TRANSPORT AND SAFETY AUTHORITY VIDE A LETTER DATED 29TH DECEMBER, 2017

IN THE MATTER OF ARTICLES 10, 22,23,27,73, 74 AND 75 OF THE CONSTITUTION OF KENYA 2010.

BETWEEN

MARIMBA INVESTMENTS LIMITED....................................................APPLICANT

VERSUS

THE DIRECTOR GENERAL OF THE NATIONAL

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

THE NATIONAL TRANSPORT AND SAFETY AUTHORITY...2ND RESPONDENT

THE TRAFFIC COMMANDANT..................................................3RD RESPONDENT

RULING ON LEAVE  AND  STAY.

1. By a chamber summons  dated 2nd January  2018  and  filed on 3rd January 2018 the exparte applicant Marimba Investments Limited seeks from this court (1) Leave to apply for the following   Judicial Review  orders:-

a) Certiorari  to bring  into this court  and  quash  the  decision made by the  1st respondent  Director General  of the National  Transport and Safety Authority (NTSA) to suspend all operations  of all motor vehicles operating  under the  applicant Sacco , contained in the letter  dated  29th December, 2017and  referred NTSA/R&L/Comp/010/080.

b) An order of  prohibition be issued to prohibit  interference  and  meddling in the applicant’s operations and the making  of decisions, directions and or orders  regarding the motor vehicles operating  under the  applicant  by the  respondents herein.

c) Mandamus be issued by this court to compel the respondents to allow the applicant to operate without interference and carry on its activities in accordance with the law.

d) That grant  of leave do operate  as stay of  implementation of the directive  issued in the letter dated  29th December, 2017, and  referenced  NTSA/R&L/Comp/010/080.

e) Such further orders and directives be issued to the respondents jointly and severally to facilitate just, expeditious and fair administration.

f) Costs of the application be borne by the respondents its servants, employees and or agents.

2. The chamber  summons is predicted  on the grounds  set out in the statutory  statement  and  verifying  affidavit  sworn by  Stephen Kamau  Ndungu and  annextures/exhibits thereto.

3. According to the  applicant, the  2nd respondent  NTSA through the  1st respondent Director General,  vide letter  dated 29th December  2017 referenced  NTSA/R&L/Comp/010/080, suspended   with immediate  effect   the  operations of the applicant  and directed  the 3rd  respondent  Traffic  Commandant  Nairobi County  to impound   any vehicle  belonging  to the  applicant  that is found operating  on the roads.

4. It is  claimed that  the  2nd respondent  is mandated  under the  Act to issue  licences to drivers  and  conductors of public service  vehicles.

5. It was averred that by suspending operations of all motor vehicles operating under the applicant Sacco, the 1st respondent acted illogically, irrationally and reached an unreasonable conclusion.

6. The applicant claims that the cause of suspension is the incident that occurred on 24th December 2017 involving motor vehicle registration No.  KCF 793Z registered under the applicant Sacco wherein the driver and conductor of the aforesaid motor vehicle were involved in an altercation that led to the death of one Joseph Kiarie who was a fellow motorist.

7. That the incident was reported to Kasarani Police Station and booked under OB No. 99/24/12/2017 whereupon the police commenced investigations to unravel what really happened to the deceased.

8. That on  25th December  2017, the applicant  supplied  particulars  of the offending/affected  motor vehicle  and  deposited  the said  vehicle at Kasarani Police station and that the applicant has continued to co-operate fully with the  investigators  as they try to resolve the mystery  that led to the death of the deceased Joseph Kiarie.

9. The applicant asserts that it is  alleged that  the  deceased  met his death  when  his friends who were occupants of his vehicle fought with the   driver  and  conductor  of the applicant’s  Sacco vehicle, which  fight  was  outside  the vehicle  hence the applicant’s  vehicles have no collective responsibility and that neither  is the applicant under  any investigations over the said incident and death.

10. It was claimed that the letter of 29th December 2017 violates the Constitution, The National Transport and Safety Authority Act, 2012 and  disregards  the rule of law and  rules of natural justice.

11. Further, that the  1st respondent  exceeded his jurisdiction hence his directives  are null and  void  and  amounts  to abuse of office and that the respondents’ actions  are not immune  to judicial scrutiny as they demonstrate  impunity and  disrespect for the legitimate  governance  of our road networks  systems.

12. In the verifying affidavit sworn by the exparte applicant’s  official, it is deposed that majority of the vehicles operating  under the applicant  Sacco  are on loan hence their suspension  from operating  is injurious  to them  and that they stand  to suffer financial  loss unless stay of  implementation of the directive is issued.

13. The exparte  chamber summons  which this court  directed that it be served  upon the respondents for interpartes  hearing  was  vehemently  opposed by the  1st and  2nd  respondents  who filed grounds of opposition dated  8th January  2018 on  the same  day  contending that: the applicant had not exhausted the internal  appeal  mechanisms to the  Transport  Licencing  Appeal Board  established under  Section  39  of the National Transport  and  Safety Authority   Act; that the applicant has not made any application to be exempted  from  such exhaustion of internal appeal  mechanisms; that the  applicant  in all  Judicial Review applications is the Republic and  that the application is an  abuse of the court process.

14. The 1st and 2nd respondents urged the court to dismiss the applicant’s application   with costs.

SUBMISSIONS.

15. The parties’  advocates  canvassed the  chamber summons  orally on 5th January  2018  with Mr Wachira advocate  representing  the applicant whereas the 1st and 2nd respondents were represented  by Mrs Sirai  advocate.

16. Mr Wachira reiterated what is contained in the statutory statement and the verifying affidavit of his client and maintained that the 1st and 2nd respondent’s decision as contained in the impugned letter dated 24th December 2017 is unreasonable and unlawful.  It  was  submitted that the Director General of  NTSA acted on a matter  which  was  within the  realm of  criminal law  on individual  criminal  responsibility.

17. Further, that the decision made by the two respondents to be implemented by the 3rd respondent Traffic Commandant of the Nairobi Region falls within Wednesbury’s  unreasonableness, is  illogical and outrageous  because the  police were  already  investigating the incident  and that the  applicant is not  one of those  being investigated.  It was therefore submitted that the decision by the 1st and 2nd respondents lacked legal basis.

18. Further, that the applicant has over  40 vehicles  plying  Nairobi and  its environs  and  are  owned by  different  people who should not be collectively  punished.  It was submitted that the applicant has employees and hence the suspension by the 1st respondent affects innocent employees under the applicant Sacco.

19. On the 1st and  2nd respondent’s  grounds of opposition, it   was submitted that the decision  in JR 10/2017 relied on by  the respondents refers to the application to grant  or vary a licence  and not a decision  to suspend  a licence hence the  case is  inapplicable to  this case.  It was further submitted that appeal to the Appeals Board is not mandatory but discretionary and that unlike in JR 10/2017 where the applicant sought for mandamus, the applicant herein has not sought for mandamus.

20. A further submission was made that in any case, under Section 9(2) of the Fair Administrative Action Act, a party may be exempted from appealing to the internal appeal or review mechanisms.

21. Further, that in any case the Appeal Board belongs to the National Transport and Safety Authority hence  the Appeals Board  would not be fair.  Counsel urged the court to allow the application because the applicant’s vehicles are on loan and that it had lost business on a daily basis.

22. In a terse opposition to the chamber summons for leave to apply and stay of the impugned decision, Mrs Sirai counsel for the 1st and 2nd respondents relied on the grounds of opposition filed on 5th January 2018.

23. According to Mrs Sirai, the applicant does not deserve the exercise of this court’s discretion  because it had not exhausted  the internal appeals mechanisms  as stipulated in Section 39 of the National Transport and Safety Authority Act and that whatever  orders  that are being  sought  from this court, can be  granted by the Appeals Board  established under the Act.

24. In addition, it was submitted that there was no application for exemption from resorting to the internal appeals mechanisms.  It was further submitted that the National Transport and Safety Authority Act establishes the Authority and the Appeals Board which are distinct  bodies with different mandates.

25. Further, that Section 34 of the  NTSA Act gives the Authority power to revoke the licence of a licencee if the terms of the licence are breached and that the licencee must have a Code of Conduct to be adhered to by its operators.  In this case, it was submitted that the driver and conductor of the Applicant Sacco Vehicle assaulted a motorist and killed him which was in breach of the Code of Conduct.

26. Further, that the impugned letter issued by the NTSA has conditions to be satisfied before the licence is reinstated including, production of the offending driver and conductor.  It was also submitted  that the applicant  has refused  to obtain the good conduct  certificates  for their  employees  who have  refused  to go to the  National Transport and  Safety Authority.

27. Referring to JR 10/2017 a decision of this court, it was submitted that where there is an alternative remedy, it must be exhausted before coming to court.  In this case, it was  submitted that  no special  circumstances  have been  shown to exist  hence  the application for leave and stay should  be declined.

28. In a brief rejoinder, Mr Wachira counsel for the applicant  reiterated that Section 38 of National Transport and Safety Authority Act is clear and that the  facts of JR  10/2017  are different  from this case and maintained  that this court  has jurisdiction to  hear and  determine  this matter.  It  was further  submitted that  it is the  respondents who issue  certificates of good conduct to the  conductors  and  drivers  and that the  conditions  imposed on the applicant are so outrageous and  one-sided.

29. Further, that it is not the responsibility of the applicant to produce drivers and conductors who have  committed  criminal offences.  It was submitted that in this case the applicant had written statements with the police on what it knew concerning the incident that led to the killing of Mr Joseph Kiarie in the hands of the Sacco Vehicle hence the orders sought should be granted.

DETERMINATION.

30. I have carefully considered the applicant’s application as supported by the statutory statement, verifying  affidavit  and  annextures thereto.

31. I have  given equal consideration to the  1st and  2nd respondent’s grounds of opposition, and both parties’ advocates oral submissions.

32. The main  issue for determination is whether the prayers sought  by the applicant  are available.

33. The respondents have  also raised  an issue of  preliminary nature  to the effect that the applicant is  improperly  before this court  because there  are internal appeal mechanisms  which the applicant has not exhausted before resorting to court for  Judicial Review  remedies  hence the court  has no jurisdiction to hear and  determine these proceedings.

34. It is trite law that where a preliminary point of law is  raised touching  on jurisdiction of the court to hear and  determine  a matter, the court must  first investigate  that issue of jurisdiction before proceeding  to delve into the  merits of  the  case.

35. This is because jurisdiction is everything without which a court of law acts in vain.  See  Motor Vessel “Lilian S” vs  Caltex  Oil(K) Ltd [1989] KLR 1where it was held that   jurisdiction is everything without which  the court has no  power to make one  more step and  that the court must down its tools once it  establishes that it has  no jurisdiction to hear and  determine  a matter, because lack of jurisdiction renders  the  proceedings a nullity.

36. The  respondents contended that the applicant  has an alternative  remedy under Section 39 of the National Transport and  Safety Authority Act to Appeal to the Transport  Licencing Appeals Board challenging the decision of the  Director General of the 2nd respondent National Transport and Safety Authority and that where there  are special  circumstances  then the applicant could  apply to be exempted  from resorting to internal  appeal mechanisms, but  that in this case the applicant has not complied with the above  provision under  the Act.

37. On the part of the applicant, its counsel Mr Wachira submitted that in any case, the Appeals Board will not act fairly because the Board belongs to the Authority and that the court can exempt the applicant from resorting to the appeals mechanisms under the Act since the section does not mandate the filing of the appeal but that it is couched in discretionary terms “may appeal.”

38. Further, that JR 10/2017 is different from this case as it does not concern mandamus.

39. First and  foremost  is that leave  to institute  Judicial Review  proceedings is necessary to weed out  frivolous, vexatious applications or  applications which  are time  barred  or statute  barred, or wherein the court would have no jurisdiction to entertain the  application.

40. At leave stage, the applicant is only expected to demonstrate that is has a prima facie arguable case for further investigation at the substantive stage.  But an arguable case is not necessarily one that must succeed.  In the spirit of access to justice, courts are not expected to lock out litigants who wish to ventilate their grievances before a court of law.

41. However, where it is clear that  the  court’s jurisdiction is divested  by either  the  Constitution or an  Act of Parliament, then the   court would not  wade   into the merits  of the dispute  but it  would be expected to make a finding  on its  jurisdiction  and  where it finds  that it jurisdiction  is divested, it must  down its  tools and say no more.

42. Section  39  of the National Transport and  Safety Authority Act  establishes  the  Transport  Licencing Appeals Board  and  under Section  38 of the Act;

(1) A person who-

a) Being  an applicant  for the grant  or  variation of a licence, 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 licencee 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. [emphasis added].

43. Although the applicant’s counsel attempted to say that the provision of section 39 of the Act only talks  of variation  of a licence, it is not  true as the Section  is clear at paragraph (c) that  an appeal also lies to the  appeals Board where a licencee is aggrieved by revocation or suspension of the license.

44. In  addition, the usage  of the   word “May” is a discretion  given to an aggrieved  party to choose whether  to appeal  to the Appeals Board or not to appeal.  The Act does not provide for  another alternative way of challenging  the decision  of the Authority to revoke  or suspend  a license.

45. In this case, the 1st and 2nd respondents did make an administrative decision on  29th December  2017  to suspend  the  operations of the  applicant  Sacco  vehicles  following  an alleged  murder  incident  arising  from  a dispute  between  a driver and  a conductor of one of its fleet vehicles killing another  motorist, following an accident.

46. The letter dated 29th December 2017 is signed by the 1st respondent as the Director General  of the 2nd  respondent  Authority, NTSA.

47. The  applicant’s vehicles operate on the basis of and  in accordance  with a licence  terms issued  to them by  the  2nd respondent  as per the Regulations  made under the Act  and  therefore observance of the said Public Service Vehicle  Regulations is a condition of the licence.  The conditions include  observance of  a Code of  conduct governing  the conduct of  employees, agents and subcontractors (see  Regulations 5(1) (c ) and 10(c ) Regulations  2014.

48. It follows that where the National Transport and Safety Authority is  persuaded that there has  been no observance of the Regulations or Code of Conduct  stipulated in the Regulations  by  the motor vehicle  operators, it may,  for good cause, suspend or revoke the licence of the operator.  Where the National Transport and  Safety Authority so  revokes  or  suspends  the   operator’s  licence, it must  however do so  within the  confines of the law.

49. And the person aggrieved by the decision to suspend the licence is guaranteed a right of appeal to the Transport Licencing  Appeals Board.  The Board  as established  under Section  39 of the Act  is  a tribunal  established  to hear  and  determine disputes between licencees and the National Transport and Safety Authority( Authority).  It is therefore not   true that   the  Appeals  Board belongs  to the Authority and that therefore  the applicant  who  is aggrieved  by the decision  of the Authority cannot get a fair hearing before the  Appeals Board since the two bodies are distinct and have distinct  mandates, as  correctly  submitted by Mrs  Sirai. Furthermore, the Appeals Board is a Tribunal falling under the Judiciary as stipulated in Article 169(1) (d) of the Constitution.

50. The National Transport and Safety Authority Act was enacted to be effective  in the management of the National Transport and road Safety matters and therefore where  there is an established  mechanism for  resolving disputes under the Act, failure to resort to those  internal mechanisms would frustrate the implementation of the Act and  render the institutions established  under the Act Otiose  or useless or  redundant.

51. The  Appeals Board  established  under the Act  is a specialized  body comprising of experts in the  transport  sector with the mandate of resolving disputes arising between and among players in the sector.

52. Article 159 of the Constitution of Kenya is clear that in the exercise of Judicial power by courts and tribunals established under the Constitution, they must promote and embrace alternative resolution mechanisms.

53. In addition, Article 50(1) of the Constitution recognizes that every person has the right to have any dispute that has to be resolved by application of the law  to be decided in a fair and public hearing before a court or,  if appropriate, another independent and impartial tribunal or body.

54. It therefore follows that where a party fails to utilize the  available  internal  dispute  resolution mechanisms set out in the parent  Act, to rush to court by  by-passing  those internal appeals mechanisms  is to urge the courts to oust the jurisdiction of competent  statutory bodies or  authorities  in the exercise  of their functions and powers  conferred by law.

55. This court  must, whenever  it is faced with  a situation  where though it may have  jurisdiction  to entertain  a matter, but where  similar jurisdiction is conferred  on another body  or competent  authority  by statute, adopt  an interpretation that most favours  the spirit and letter of the parent Act so that  the  implementation of the Act  is not rendered  useless.

56. In Constitution Petition No. 359 of 2013 Diana Kethi Kilonzo  vs IE BC & 2 Others, it  was held, inter alia

“We note that the Constitution allocated certain powers and functions to various bodies and tribunals.  It is important that these bodies and tribunals should be given leeway to discharge the mandate bestowed upon them by the Constitution so long as they comply with the Constitution and national legislation.  These bodies and institutions should be allowed to grow.  The people   of Kenya, in passing the Constitution, found it  fit that  the  powers of decision making  be shared  by different bodies.  The decision of Kenyans must be respected, guarded, and enforced.  The courts should not cross over to areas which Kenyans respectively reserve for other authorities.”

57. The Court of Appeal in Trinidad Tobago case of Damian  Belfonte  vs  The Attorney General of Trinidad  and  Tobago  CA 84/2004  added its voice to this debate  of resort to internal review or appeal mechanisms before approaching the court and held that  where there  is  a means of  redress  that is adequate, the court should exercise  restraint. The court held:

“The opinion in Jaroo has recently been considered and  clarified by the Board in Attorney General vs Ramanoop.  Their Lordships laid stress on the need to examine the purpose for which the application is made in order to determine whether it is an abuse of process where there is an available common law remedy.  In their Lordships words:

“Where there is a parallel remedy, constitutional relief should not be sought unless the circumstances of which the complaint is made include some feature which makes it appropriate to take that course.  As a general rule, there must be some feature, which, at least arguably, indicates that the means of legal redress otherwise available would not be adequate.

To seek constitutional relief in the absence of such a feature would be a misuse of abuse, of the court’s process.  A typical, but by no means exclusive, example of such a feature would be a case where there has been an arbitrary use of state power.  Another example of a special feature would be a case where several rights are infringed, some of which are common law rights and some for which protection is available only under the Constitution.  It would not be fair, convenient, or conducive to the proper administration of justice to require an applicant to abandon his constitutional remedy or to file separate actions for the vindication of his rights.”

58. In Petition No.  203/2012  Kapa Oil Refineries  Ltd vs  Kenya Revenue  Authority, & 2 Others, Lenaola J ( as he then was ) stated and  I concur that:

“ I am  also aware that even if this court  has jurisdiction to determine  a violation of fundamental rights and  freedoms, it must  also first  give an opportunity to other relevant bodies  established by law to deal with  the  dispute as  provided in the relevant  statute.  This  rule  was  well articulated  by the Court of Appeal in Narok County Council vs  Transmara County  Council [2000] 1 EA  164 where  it stated that:

“ It seems to me to be plain beyond argument that the jurisdiction of the High Court can only be invoked if the Minister refuses to give direction or in purporting to do so, arrives at a  decision which is  grossly  unfair  or perverse.  In the latter case his decision at page 15 of 24 can be challenged by an application to the High Court for writ of certiorari because under the relevant section, the decision is to be made on a fair and equitable basis.”

59. This court  in JR 10/2017 Saferider Vehicle Technologies (PTY) & 2 Others  vs  The National Transport  and  Safety Authority (NTSA), and while adopting many other  decisions of the Court of Appeal including Republic vs  National Environmental Management of the National Assembly Nairobi CA 92/1992; Republic vs Ministry of Interior and Coordination of National Government and  Another ZTE JR  442/2013; Francis Gitau  Parsirmei  vs The National Alliance Party of Kenya & 4 Others  Petition  352/2012; Kipkalya Kones vs Republic and Another Exparte Kimani Wanyoike  & 4 Others  [2008] EA  291 did not  shy away from asserting  itself  in line with the holdings in the above  cases  and  held, inter alia:

“65. Judicial Review, though now elevated to the Constitutional  threshold, is a remedy of last resort since it does not  substantially look into the merits of the decision but  the legality, rationality and or procedural impropriety of the decision and  decision making process.  It therefore ought not to be resorted to where there exist appropriate efficacious remedies to redress the grievances  complained of.

The exparte  applicants in this case  had the  remedy of lodging  the appeal to the Transport Licencing Appeals Board  established  under Section  39  of the National Transport  Safety Authority Act.  The Board  would then have examined  the grounds of appeal and determined the merits  of the respondent’s  refusal to grant to the 1st applicants agent the licence to distribute  the “ Saferider © devices  (Speed governors  and or to accept  the  vehicle speed governors certificate issued by  the  3rd  applicant).”

This is  because, as earlier  stated, there  is no specific statutory  duty  placed  on the respondent  to do any  of  the things  that the applicants  wish this court to compel the  respondent  to do.

An Act of Parliament such as the National Transport and  Safety Authority Act and others with inbuilt dispute resolution  mechanisms  are self embodiments  and  cannot be  wished away  at the altar of Judicial Review  which is a  remedy  of last resort. The mechanisms provided for under these enactments for dispute  resolution  which is  espoused  in Article  159(2) (c ) of the Constitution  must be  respected.”

In the end, I find  that not  only  have the  applicants failed  to demonstrate  that they  are entitled  to the orders of  mandamus  sought as the decision of refusal to grant the licence or to  accept  the  certificates issued  by the 3rd applicant  has not  been sought to be  quashed  by this court  and  secondly, there was and still  is an  alternative remedy of exhaustion of  internal appeals  mechanism to the Transport Licencing Appeals Board established  under Section  39 of  the National Transport  and Safety Authority Act.  In the absence  of special circumstances  and Or application by the applicants for exemption from mechanisms, this court finds and holds that the exparte applicant  is not  entitled  to the Judicial Review remedies s of mandamus sought.”

60. The above cited holding is in line with the Court of Appeal decisions in Speaker  of the National  Assembly  vs Njenga  Karume  Nairobi CA No. 92  of 1992 where  the court stated:

“ There is considerable  merit  in the submission that  where there is a clear procedure for redress of any particular grievances prescribed by the Constitution or an Act of Parliament, that procedure  should be strictly followed.

Accordingly, the special procedure provided by any law  must be strictly  adhered to since there are good  reasons  for  such special procedure.”

61. And in Republic  vs Ministry  of Interior  and  Coordination  of National Government & Another Exparte ZTE JR 442/2013  the court stated, inter alia:

“……..for the court  to require  the alternative  procedure to be exhausted   prior to resorting  to Judicial Review  is in accord with Judicial Review being very properly regarded as a remedy of last resort though the applicant  will not be required to resort to some other procedure if that  other procedure is less convenient or otherwise less  appropriate.  Therefore, unless  due to  the inherent  nature  of the remedy provided  under the statute to resort thereto would be less  convenient  or otherwise  less appropriate, parties ought to follow the procedure  provided  for under the statute.”

62. The Court of Appeal further in Republic  v NEMA CA 84/2010 stated:

“…..where there was an alternative  remedy  and  especially where Parliament had  provided  a statutory  appeal process, it is only in exceptional circumstances that an order for  Judicial Review  would be granted, and that in determining  whether an exception should be made and  judicial review granted, it  was necessary for the court  to look  carefully  at the suitability of the statutory appeal in the context  of the particular case and  ask itself what, in context  of the real issue  is to be  determined  and  whether the  statutory  appeal  procedure  was suitable  to  determine it. The learned judge, in our respectful view, considered  these strictures  and  came to the conclusion that  the appellant had failed to demonstrate to her what exceptional circumstances  existed in its  case which  would  remove it from the appeal process set out  in the statute.  With respect, we agree with the judge.”

63. As I have held before and  severally, albeit  the  above  decisions  were made  prior to  the enactment  of the  Fair Administrative  Action Act, 2015, which Act implements Article 47 of the Constitution  on the right  to a fair administrative  action, and  albeit  in this  case the applicant  carefully avoided  reliance   on the provisions of Article 47 of the Constitution and the provisions of the Fair Administrative  Action Act, 2015, I have  no doubt  in my mind  that those  provisions  are applicable  to this case and in all cases where an administrative action, failure to act or omission is being challenged. The decision to suspend  operations of  the applicant’s  fleet  of Public Service Vehicles is no doubt an administrative  action made by  the 1st respondent public officer  on behalf of the  2nd respondent  authority.

64. Section 4(2) of the National Transport and Safety Authority Act provides that in the performance of its functions under Sub Section 4(1), the Authority shall, among others;

a) Register and licence  motor  vehicles;

b) Conduct  motor vehicle  inspections  and  certifications;

c) Regulate  public  service  vehicles;

d) Develop  and  implement  road safety  strategies.

65. The above  provision as read  with Section 38(1) of the Act on the  power  of the Authority to revoke or suspend a licences clearly contemplate  exercise  of  administrative   authority  or power by the Authority, through the Director General. Accordingly, that exercise of administrative power is governed by Article  47  of the Constitution  and the Fair Administrative  Action Act, 2015, which latter implements Article  47  of the Constitution.

66. As such, albeit the  applicants  in the JR 10/2017 only sought  for mandamus which this court found was not available  to them, as there was no statutory  duty placed on the  National Transport and  Safety Authority  to grant  a licence  to the agent of  the  3rd  applicant, the principles for resort to alternative  remedies  are the same  irrespective  of whether  the prayer  sought  are for  mandamus, certiorari, prohibition, injunction, declaration, direction among other Judicial Review or constitutional  remedies.

67. It is also worth noting that Judicial Review has since the promulgation of the 2010  Constitution been elevated  from the ordinary  common law  remedy to a constitutional remedy and therefore  when the Fair  Administrative  Action Act, 2015   was  enacted, it  took into account  that fact  and the fact that  Article 23  of the Constitution  recognizes  Judicial Review  as  one of the remedies for   enforcement  of human rights enshrined  and  guaranteed in the  expansive  Bill of Rights.  It therefore follows that since the Bill of Rights binds all persons, any implementing legislation must be implemented to the letter as long  as it is  not inconsistent with the Constitution which is the  supreme law of the land.

68. In this  regard, Section 9 of the  Fair Administrative  Action Act, 2015  stipulates:

“(2) the High Court  or a subordinate  court under  Subsection  (1)  shall not  review  an administrative action or  decision under this Act unless the  mechanisms including  internal  mechanisms  for appeal or review and all  remedies  available  under any  other  written  law are first  exhausted.”

69. The above provision prohibits this court from entertaining  Judicial Review proceedings where there are alternative  internal  mechanisms for appeal or review which have not been exhausted  in the first instance.

70. In this  case, the  Transport  Licencing  Appeals  Board  had the power to hear appeals  from decisions  made by  the  National Transport  and Safety Authority on among  others: revocation and  suspension of licences  of the Public Service Vehicles.  It follows that the applicants are expected to have  first approached  the Transport Licencing Appeals Board with an appeal  challenging the decision of the Director General of the National Transport and Safety Authority to suspend operations of their  fleet  Public Service Vehicles as contained in the impugned letter dated 29th December 2017  and only  after exhausting  that mechanism of appeal could the applicants, if dissatisfied with the decision of the Appeals Board, approach the High Court  either  by way  of an Appeal or Judicial Review.

71. It is  therefore  not sufficient for the  applicants  to allege that the National Transport Authority’s letter  and conditions thereto  are outrageous and Wednesbury  unreasonable.  The  suspension letter or notice was issued within the parameters of the Act, whether the process of issuing it was right or wrong but the intention was to regulate public service vehicles and  since  Section  38 of the Act  contemplates that the Authority  may revoke  and  or suspend the  licence  and  therefore the  operations  of public service vehicles on the roads in its implementation of road  safety strategies, the appropriate statutory  body that is mandated  to hear and determine the grievances regarding decisions made by the  Authority is the Transport Licencing Appeals  Board, and not the  High Court  by way of Judicial Review.

72. Furthermore, Section 9(3) of the Fair Administrative Action Act, 2015 stipulates that the High Court, or  a subordinate court shall, if is it not satisfied that the remedies referred to in Subsection  (2)  have been  exhausted, direct  that the applicant shall first exhaust. Such remedy before instituting proceeding under Sub Section (1).

73. In the same vein, Sub Section (4) of Section 9 of the Fair Administrative Action Act, 2015 provides that the High Court  or subordinate  court may, in exceptional circumstances and  on  application by the applicant, exempt such person from the obligation to exhaust  any remedy if the court considers such  exemption  to be in the  interest of justice.

74. It follows that whereas there is a window of opportunity for an applicant to be exempted from resorting to the internal appeal mechanisms, the onus is on the applicant to prove to the satisfaction of the court that there are special circumstances to warrant such exemption and, on an application before the court for consideration on its merits.

75. Having  found that the applicant has and  still has the available   alternative  statutory  internal appeals  mechanism to appeal to the Transport Licencing Appeals Board to challenge the  decision of the  National Transport and Safety Authority and its  Director  General suspending  the applicant’s licence to  operate the fleet  of vehicles  registered under the applicant  Sacco, what  remains  is the  question  of whether  there is  an exceptional circumstances  for  exemption from resorting to the alternative forum.

76. As earlier stated, Section 9(4) of the Act contemplates that even if there are  exceptional circumstances, exemption would only be considered by the court on application by the applicant. The court is not given any  latitude to exercise its discretion to decide  on its own  motion that there are exceptional circumstances to warrant an exemption from resorting to  the alternative  remedy stipulated  under the Act  and  in this case, under Section 38  of the  National Transport and Safety Authority Act.

77. Accordingly, albeit the applicant’s counsel submitted too much into the merits and demerits of the application and the arguableness of the intended  substantive notice of motion, this court  finds that each right has a corresponding  obligation to follow the law and where the statute clearly stipulates  modalities  for  dispute resolution, this  court will be acting  contrary  to the spirit  and  letter of Article 159(2) (c ) of the Constitution of Kenya  if it  usurped powers of the Transport Licencing  Appeals Board as it  would  be encouraging  parties to take  wrong cuts  by taking  umbrage  in courts instead  of approaching  the rightful specialized  bodies  that are better  equipped with experts to resolve disputes arising from  the implementation of the  relevant  Acts  of Parliament  and  in this case, the National Transport and  Safety Act.

78. I am  in agreement  with the  1st and  2nd respondent’s contention that the  Transport Licencing  Appeals Board has the mandate to deal with  issues relating to the conditions  stipulated in the letter of suspension  of operations  issued to the exparte applicant, which suspension is temporary  and the conditions   thereto call   for dialogue on how to  resolve the issues amicably including a commitment by the 2nd respondent’s Director General  to facilitate  the  applicant to  meet the conditions   set out in the letter of suspension.

79. On the 1st and 2nd respondent’s assertion that the Judicial Review application ought to have been brought in the name of the Republic, I find and hold that no pleading or proceeding can be defeated for want of form.

80. I must  add that  our public transport  sector  in this country requires dialogue among stakeholders to resolve the ever increasing problems that bedevil the sector including alleged  indiscipline  and  road carnage  that has taken  a toll on the  lives of  the people  on our roads.

81. It is not the courts that will offer a lasting solution to the phenomena. It is dialogue and more so, alternative dispute resolution mechanisms that bring  about  all stakeholders  to discuss and develop policies and strategies  for discipline  and  road safety.  This is  so especially bearing in mind  the fact  that even if  this court  were to quash  the decision  of the administrative  bodies, regarding revocation or suspension of licences  of operators, parties would still be taken back to the drawing  board which  is the  original  position.  It is a cycle of sorts that offers no solution in hand.

82. Courts of law are established to assist parties conclusively resolve  their disputes and  not to  escalate  disputes  and in a way, sometimes perceived to merely perform rituals of cleansing  the  wrongdoers, at the  expense  of the right to life and to the protection of life and  limb and  human dignity.  Any party who resists  the  established mechanisms for resolving  disputes  shows  impunity  which this court is not prepared to sanitize  at the expense  of life  and  extremity.

83. Accordingly, I find and hold  that the  exparte  applicant  has failed  to demonstrate that this  court  has  jurisdiction to hear  and determine the dispute relating to the impugned  administrative decision of 29th December 2017 before exhaustion of available efficacious appeal mechanisms  established  under the National Transport and Safety Authority Act  hence the notice  of motion dated  2nd January  2018  must fail and the same  is  hereby declined and dismissed  with an order that each party shall bear their own costs of the  application.

Dated, signed and delivered in open court at Nairobi this 15th day of January 2018

R.E. ABURILI

JUDGE

In the presence of:

Mr Wachira for the exparte applicant

Mrs Sirai for the 1st and 2nd respondents

N/A for the 3rd Respondent

Court Assistant: Kombo