IN THE TRANSPORT LICENSING APPEALS BOARD
AT NAIROBI
APPEAL CASE NO 3 OF 2019
KAYO-LINE GROUP COMPANY LIMITED............................APPELLANT
VERSUS
NATIONAL TRANSPORT AND SAFETY AUTHORITY.....RESPONDENT
RULING
Introduction
1. The Appellant is a Sacco that is 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, 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 application under consideration is made by the Appellant via a letter dated 06th May, 2019, seeking an interim injunction on the route extension.
Background
4. The Appellant has made an application to the Respondent for route extension via the letter dated 30th April, 2018.
5. The Appellant filed an appeal at the Transport Licensing Appeals Board (TLAB) on grounds that the Respondent had unjustifiably failed to grant its application for the same.
6. During the first hearing dated 15 March, 2019 the Respondent successfully argued that the reason why the Appellants application had not been processed is because it was incomplete as a letter from the County Government granting picking and dropping points had not been acquired.
7. The Board consequently advised the Appellant to complete its application by acquiring the same from the County Government.
8. The Appellant via a letter dated 16th March, 2019 made an application to the County Government requesting for a picking and dropping point. By this application they have alleged that the same has not been responded to.
Reasoning
9. Guided by the cases of Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR and Mrao Ltd. V. First American Bank of Kenya Ltd & 2 others [2003] the Board takes cognizance of the fact that, for an interim injunction application to succeed, the Applicant must establish a prima facie case with a probability of success and also show that he will suffer irreparable damage if the injunction is not granted. If the court is in doubt as to whether a prima facie case has been established, then it should decide the case on a balance of convenience. If no prima facie is established, then the application ought to be dismissed without any need to the look into the other two tests.
10. The Board takes further cognizance of the fact that going into the nitty-gritty’s of whether the Appellant has established a prima facie case or whether it will suffer irreparable damages if the interim injunction sought is not granted, will be premature.
11. The operation of the law dictates that one of the requirements for a route extension application is a picking and dropping letter from the County Government, upholding this application by granting the injunction will be usurping the authority of the County Government, setting bad precedence.
Determination
12. The Appellant’s application dated 06th May, 2019, seeking an interim injunction on the route extension is hereby dismissed.
Delivered, dated, and signed in Nairobi by the Transport Licensing Appeals Board on this 20th day of May 2019.
Dick Waweru Chairman .....................................
Prof. Kiarie Mwaura Member ....................................
Moses Parantai Member ………………………
Aden Noor Ali Member ……………………….