Ogada v National Transport and Safety Authority (Tribunal Appeal E035 of 2022) [2022] KETLABT 831 (KLR) (18 November 2022) (Judgment)
Neutral citation:
[2022] KETLABT 831 (KLR)
Republic of Kenya
Tribunal Appeal E035 of 2022
Joseph Mcdonald, Chair, Maryan Hajir, Waithira Muiruri & James Ngomeli, Members
November 18, 2022
Between
Charles Amisi Ogada
Appellant
and
National Transport and Safety Authority
Respondent
Judgment
Introduction
1.The appellant is a 34-year-old Kenyan national, resident of Naivasha, Nakuru County. He is a holder of a D2 license issued by the respondent and has been driving under the license for the last 14 years.
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.
The appellant’s case
3.The appellant filed the case on November 4, 2022 on the grounds that the respondent authority had failed to grant him a PSV badge. As a result, he claimed to have suffered economically because he could not engage in meaningful employment as a driver.
4.The appellant was fined Kes 3000 or serve 6 months in prison.
Respondent’s case
Division - Determination
5.The respondent NTSA did not have an objection to the appellant’s application. He is in agreement that the appellant should not be punished further after paying the fine. He stands guided by the court.
6.The respondent authority opines that the TIMs system must be rectified in order to allow the appellant to process his application.
7Following the arguments made and evidence adduced by the parties before the transport licensing appeals board during the trial, the board has extrapolated the following issue for determination whether:
Whether the NTSA violated the to a fair administrative action
8Article 47 of the Constitution of Kenya, 2010 posits that 'Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.'Section 4 of the Fair Administrative Action Act, 2015 equally reiterates that 'Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.' The decision by the National Transport and Safety Authority that the appellant should not be issued with a PSV badge because he was previously fined in a court of law is unreasonable and unlawful. The NTSA decision also contravenes Section 50 (2) states that no one should be charged for an offense in respect of an omission or act for which the accused was already convicted or acquitted. Thus, no one shall be punished twice for the same event. The appellant is protected against double jeopardy.
Order
9Having considered the facts and the law applicable to this case, the Transport Licensing Appeals Board hereby makes the following orders:a.That the respondent authority to issue the appellant with a PSV badge within fourteen (14) days the order.b.That the appellant does not require a police clearance certificate in order to be issued with a PSV badge.
DELIVERED, DATED, AND SIGNED IN NAIROBI BY THE TRANSPORT LICENSING APPEALS BOARD ON THIS 18TH DAY OF NOVEMBER 2022.Joseph McDonald Chairman ………………………Maryan Hajir Member ....................................Waithira Muiruri Member ………………………James Ngomeli Member ……………………….