REPUBLIC OF KENYA
TRANSPORT LICENSING APPEALS BOARD AT NAIROBI APPEAL
CASE NO 8 OF 2020
MAKOS SAVINGS & CREDIT COOPERATIVE SOCIETY LTD................APPELLANT
-VERSUS-
NATIONAL TRANSPORT AND SAFETY AUTHORITY............................RESPONDENT
GRAVITAS EAGLE LIMITED...........................................................INTERESTED PARTY
RULING
Introduction
1. The Appellant is a savings and credit cooperative society (Sacco) that is licensed by the Respondent 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 to 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 interested party is a company that is licensed by the Respondent to operate public service vehicles.
The Appellant’s Case
4. Through a Preliminary Objection dated 23rd August 2020, NTSA contended that the appeal filed by the Appellant at the Transport Licensing Appeals Board (TLAB) on 28th July 2020 fell outside the jurisdiction of TLAB on the following grounds:
a. That the Appellant was a third party who had not made an application for a license to NTSA and cannot, therefore, be aggrieved by the decision of NTSA under section 38 of the NTSA Act.
b. That the appeal does not fall among appeals that can be filed against the decisions of NTSA as provided for under section 38 of the NTSA Act.
5. The Appellant had lodged an appeal at the Transport Licensing Appeals Board on 28th July 2020 with the complaint that: NTSA had failed to consider the objection raised by the Appellant in granting the interested party a Road Service License (RSL); the interested party had included motor vehicles that were registered under the Appellant to obtain their RSL; and that the interested party had not complied with the provisions of Regulation 5 of the NTSA (Operation of Public Service Vehicles Regulations) of 2014. The Appellant sought to have NTSA’s decision to grant the interested party a Road Service License set aside and quashed and the RSL revoked.
6. It was NTSA’s argument in the Preliminary Objection that the Appellant could not make an application to TLAB under section 38 (1) of the NTSA Act, as the Appellant was not an applicant for the grant or the variation of a license. Section 38 (1) provides that:
A person who
(a) being an applicant for the grant or variation of a license 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; or
(c) being a licensee, 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.
7. NTSA took the position that the objector referred to under (b) above had to be an applicant for the grant or variation of license.
8. It was NTSA’s argument that they had discretion under section 29 of the NTSA Act 2012 to grant or decline a license without consulting another transport operator. To support this argument, NTSA relied on the cases of Kangema Travellers Sacco and Four Others v NTSA and Namu Supreme Shuttle Limited (TLAB Case No. 22 of 2019) and Rukagina 44 Sacco Ltd v Sunbird Services and NTSA (TLAB Case No. 6 of 2018).
The Respondent’s Case
9. It was the Respondent’s case that the objector envisaged under section 38 (1) (b) is different from the applicant under section 38 (1) (a) and, therefore, a person who was not an applicant for grant or variation of a license could still make an appeal to TLAB.
10. The Respondent averred that section 38 of the NTSA Act provides for three (3) categories of applicants to TLAB, who are:
a. Under section 38 (1) (a) – An applicant for grant or variation of license.
b. Under section 38 (1) (b) – An objector to an application as per (a) above.
c. Under section 38 (1) (c) – A licensee.
Determination
11. Following the arguments adduced by the parties, the Transport Licensing Appeals Board has isolated the following issue to be the ones requiring a determination:
a. Whether section 38 (1) of the NTSA Act enables an objector (a third party) to make an appeal to TLAB.
Whether section 38 (1) of the NTSA Act enables an objector (a third party) to make an appeal to TLAB.
12. It was NTSA’s argument that the objector under section 38 (1) (b) had to be an applicant for grant or variation of a license. A literal interpretation of section 38 (1) (a), (b), and (c) shows that the provisions refer to three categories of applicants, namely: the applicant, objector, and licensee.
13. The applicant and objector have to be two different persons given that a person cannot apply for a license and then object to its issuance. It follows, therefore, that the objector is a different person and this is the person envisaged under section 38 (1) (b).
14. The Appellant, as an objector, has the standing to make an appeal to the Transport Licensing Appeals Board under section 38 (1) (b). Whether he succeeds or not is a totally different matter to be determined in the main trial.
15. NTSA relied on the cases of Kangema Travellers Sacco and Four Others v NTSA and Namu Supreme Shuttle Limited (TLAB Case No. 22 of 2019) and Rukagina 44 Sacco Ltd v Sunbird Services and NTSA (TLAB Case No. 6 of 2018) to argue that they had the discretion to make a decision without reference to other operators. In these cases, the Appellants were challenging the discretionary power of NTSA to make a decision without reference to other road operators. The issue at hand in this Preliminary Objection is rather different and is concerned with the question whether a third party can object to the issuance of a license. As such, the authorities cited do not answer this question.
16. Having considered the law applicable to this matter, the Transport Licensing Appeals Board makes the following orders:
1. THAT the Preliminary Objection dated 23rd August 2020 is dismissed.
2. THAT the Appellant, as an objector, has the standing to make an appeal to the Transport Licensing Appeals Board under section 38 (1) (b).
DELIVERED, DATED, AND SIGNED IN MACHAKOS BY THE TRANSPORT LICENSING APPEALS BOARD ON THIS 11TH DAY OF DECEMBER 2020.
Dick Waweru Chairman ……………………….
Prof. Kiarie Mwaura Member ………………………..
Betty Chepng’etich Bii Member ……………………….
Aden Noor Member ……………………….
Moses Parantai Member ………………………..