Mom Sacco Ltd & 21 others v National Transport and Safety Authority [2020] KETLABT 20 (KLR)

TRANSPORT LICENSING APPEALS BOARD

APPEAL NO.20OF 2020

MOM SACCO LTD & 21 OTHERS ..................................................APPELLANT

VERSUS

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

JUDGMENT

Introduction

1. The Appellants are cooperative societies that are registered under the Co-operative Societies Act (Cap 490) and are licensed by the Respondent Authority 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

4. The case that the Appellants filed at the Transport Licensing Appeals Board arose as a result of the closure of the portal by the Respondent on the basis that they had vehicles in their fleet that had not complied with PSV regulations. The portal was closed on October 20, 2020.

5. The Appellants appeared in court on November 6, 2020 and challenged the closure of their portal on the basis that: the 21 days notice given by NTSA was too short and not reasonable given that inspection of vehicles and other clearances take more than 30 days. It was also the Appellant’s case that they were not given a hearing despite getting a notice. To support their case, the Appellants relied on the evidence of Sebastian Mwakumbaku (Director of Wumeri Travel Company Limited and Chairperson of Taita Taveta Matatu Owners Association), Ali Salim Abdalla (Member of Mom Sacco and Deputy Chairperson of Matatu Owners Association of Kenya),  and Benson Muriithi (Director of Benk Safaris and the Chairperson of Mombasa Matatu Owners Association

The Respondent’s Case

6. The Respondent stated that the Appellant had not complied with PSV regulation, as all their vehicles were not compliant with the regulations. It was the Respondent’s case that this fact was admitted by the Appellant.

7. It was also the Respondent’s case that the notice of 21 days was sufficient.

Determination

8. Following the arguments presented by the parties, the Transport Licensing Appeals Board has isolated the following issues to be the ones requiring a determination:

a. Whether the suspension of the portals of the Saccos was lawful?

Whether the Suspension of the Sacco was lawful?

9. It was the Appellant’s contention that the Sacco was not given a chance to be heard, a fact that was not rebutted.

10. The need to be heard and given prior notice and reasons for an administrative action that affects a person negatively is a fundamental right under Article 47 of the Constitution, which is given effect by the Fair Administrative Action Act 2015. Section 4 of the Fair Administrative Action Act (2015) provides that:

“(2) Every person has the right to be given written reasons for any administrative action that is taken against him. (3) Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision: (a) prior and adequate notice of the nature and reasons for the proposed administrative action; (b) an opportunity to be heard and to make representations in that regard; (c) notice of a right to a review or internal appeal against an administrative decision, where applicable.”

11. This position is also supported by the cases relied upon by the Appellants, namely: Onyango Oloo v AG (1986-1989) EA 456 and Pashito Holdings Limited and Another v Paul Nderitu Ndungu & 2 Others [1197] eKLR.

12. It follows, therefore, that there was a breach of Article 47.

13. Having considered the facts and the law applicable to this matter, the Transport Licensing Appeals Board makes the following orders THAT:

a)   The suspension of the Appellants’ portals was unlawful and is lifted with immediate effect.

b)The Respondent, whether by itself or its representatives, servants or agents, is restrained from suspending the Appellants’ portals or impounding the Appellants’ vehicles on the basis of the unlawful action arising from this suit.

Delivered, dated, and signed inMombasaby the Transport Licensing Appeals Board on this29thofJanuary, 2020.

Dick Waweru                       Chairman

Betty Chepng’etich Bii      Member

Moses Parantai                    Member

Aden Noor                Member

Prof. Kiarie Mwaura           Member