Molo Shuttle Sacco v National Transport And Safety Authority [2018] KETLABT 26 (KLR)

TRANSPORT LICENSING APPEALS BOARD AT NAKURU APPEAL

CASE NO 10 OF 2018

MOLO SHUTTLE SACCO …………………………. ..…….…………APPELLANT

VERSUS

NATIONAL TRANSPORT AND SAFETY AUTHORITY …………RESPONDENT

JUDGMENT

Introduction

1. The Appellant is a Sacco that is registered under the Cooperative Societies Act (Cap 490) and licensed, until October 18, 2018, 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) on November 8, 2018 with the complaint that the Respondent had deregistered the Sacco for thirty (30) days through a letter dated October 18, 2018. The grounds for deregistration were that the Appellant had failed to comply with the regulations that govern the operation of public service vehicles. The specific violation related to section 5 (1) of the PSV Regulations 2014, which require PSV Saccos/companies to operate a minimum of 30 serviceable motor vehicles.

4. The Chairman for the Sacco, Joseph Mbogo, confirmed that it was the case that they did not have thirty vehicles by the time they were deregistered. He, however, averred that he has since complied, but could not add the compliant vehicles to the portal, as the portal had been closed when the Sacco was deregistered.

5. The Appellant’s prayer was that the portal should be opened for him to add the compliant vehicles.

Respondent’s Case

6. The Respondent averred that the Appellant was deregistered, as it had failed to comply with the PSV Regulations 2014, which require operators to have a minimum of thirty serviceable vehicles.

7. It was the Respondent’s case that they had notified the Appellant about this non-compliance, but the Appellant had failed to correct the same. The notifications were done through the Respondent’s letters dated:October 13, 2017; December 5, 2017; July 11, 2018; July 30, 2018; August 9, 2018; and September 6, 2018. Joseph Mbogo confirmed to have received the letters dated September 6, 2018 and October 18, 2018. He, however, denied having received the rest.

8. It was the Respondent’s case that the Appellant needed to fulfil the following conditions before they are licensed:

a. They should have thirty (30) serviceable vehicles, all of which should have valid road service licenses.

b. All drivers and conductors should have valid PSV badges.

c. All vehicles must have valid inspection stickers.

Determination

Following the arguments adduced in court, the Transport Licensing Appeals Board has isolated the following issues to be the ones requiring a determination:

a. Whether the Appellant had violated to section 5 (1) of the PSV Regulations 2014, which require PSV Saccos/companies to operate a minimum of 30 serviceable motor vehicles.

b. Whether the Appellant had been notified of the non-compliance.

Whether the Appellant had violated to section 5 (1) of the PSV Regulations 2014, which require PSV Saccos/companies to operate a minimum of 30 serviceable motor vehicles.

10. On his own admission, Joseph Mbogo confirmed that the Sacco did not have the required thirty serviceable vehicles by the time it was deregistered. As a result, we find that the Sacco had violated section 5 (1) of the PSV Regulations 2014.

Whether the Appellant had been notified of the non-compliance.

11. Although the Appellant denied having received the notifications, we find that, on a balance of probabilities, that the letters were received. This is because the letters that the Appellant confirmed to have received were sent through the same address that was used to send the others.Besides, the demeanour of Joseph Mbogo suggested that he was not telling the truth, as, at some point during the hearing, he appeared to deny having received a letter that he used to support his own memorandum of appeal that was filed at the Transport Licensing Appeals Board.

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

1. THAT the Appellant was deregistered lawfully for having failed to comply with section 5 (1) of the PSV Regulations 2014.

2. THAT, as agreed between the parties, the portal be opened temporarily for fourteen (14) days to allow the Appellant add the vehicles that have become compliant.

3. THAT the Appellant’s vehicles should not operate on the road until the Sacco becomes compliant.

4. THAT the deregistration of the Sacco should be lifted once it becomes compliant.

Delivered, dated, and signed in Nakuru by the Transport Licensing Appeals Board on this 15h day of November 2018.

Dick WaweruChairman……………………….

Prof. Kiarie MwauraMember………………………..

Aden Noor AliMember………………………..