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Maina v National Transport and Safety Authority (Appeal 014 of 2022) [2022] KETLABT 779 (KLR) (Civ) (7 September 2022) (Judgment)
Neutral citation:
[2022] KETLABT 779 (KLR)
Republic of Kenya
Appeal 014 of 2022
Dick Waweru, Chair, James Ngomeli, Lillian Waithera, Maryan Hajir & Joseph Mcdonald, Members
September 7, 2022
Between
Alex Mutahi Maina
Appellant
and
National Transport and Safety Authority
Respondent
Judgment
1.The Appellant is a 32-year-old Kenyan from, Nyeri County and a holder of a DL endorsed with classes A, B, C, E &F issued by the Respondent.
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.
Appellant’s Case
3.The Appellant attached a copy of his DL No.C2498XXX endorsed with category A, B, C, E, F and G.
4.The last time he renewed his license was November 16, 2020 valid to November 15, 2021.
5.He avers that while he has a class A endorsed every time he is stopped by police and they send a short code to the Respondent class A comes back negative; meaning that within NTSA systems he does not have a class A or its equivalent.
6.He further avers that under the old system he had class A endorsement; but under the new online system the class A has been unfairly been removed by the Respondent
Respondent’s Case
7.The Respondent Authority argued that when they checked the system it shows that the Appellant has class B, C and E he does not have A, F and G.
8.The Respondent also alleged that maybe the Appellant procured the endorsements through fraudulent means.
9.The Respondent averred that when NTSA inherited the legacy system from KRA there were many loopholes and people procured endorsements without following the due process. NTSA was however been able to clean up the data base and catching up with the fraudsters.
10.And therefore the Respondent would have to follow the due process to legally procure the endorsements.
DeterminationFollowing the arguments made and evidence adduced by the parties before the Transport Licensing and Appeals Board during the trial, the Board has extrapolated the following issues for determination whether:1.Whether the Appellant is entitled to the endorsement A, F and G.2.Whether the Respondent provided sufficient evidence to proof fraud on the part of the Appellant in procuring endorsement A, F and G.
Whether the Appellant is entitled to the endorsement A, F and G.
11.The Appellant has proved that he has been driving for more than 8 years and that hence above 24 years, which makes him entitled to a class D1 endorsement. He has therefore satisfied the conditions enumerated under section 33 of the Traffic Act, Chapter 403 of Laws of Kenya. Section 33(1) of the Traffic Act states that
12.The Appellant has also furnished copies of his driving license which he last renewed on November 16, 2020, valid till November 15, 2021; this driving licenses bears a signature against class A which according to the regulations is equivalent to class D1. This is in line with Section 30 of the Traffic Act which states that
13.Further Section 82 of the Traffic states whose sub-heading reads “Particulars of endorsement to be inserted in new licence.” Categorically states
14.Section 82 (supra) is couched in simple straight forwards terms and it does not impose additional requirements for applicants to go back to a driving test or school. If there were such intention, then nothing would be easier than for the legislature to include that requirement in the Act.
15.Until any evidence is provided to the contrary the Appellant is entitled to all the classes that are on the face of his current driving licenses.
16.The Counsel for the Respondent only stated that during the transition period from the KRA systems to the TIMS system owned by the Respondent; they discovered that many Kenyans had illegally acquired endorsement and therefore it is the Respondents policy that if your details are not on the system; the inescapable conclusion was that the endorsement were illegally procured.
17.The Counsel for Respondent further told the TLAB that from their systems the Appellant was only entitled to classes B, C and E and that classes A, F and G must have been procured through fraudulent means.
18.However, the question that begs to answer is whether failure to get details during the transition period is enough proof for fraud?
19.In Kenyan jurisprudence, Courts have always taken the view that the onus to prove fraud in a matter is on the party who alleges it. Similarly, in cases where fraud is alleged, it is not enough to simply infer fraud from the facts. In Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000] eKLR, Tunoi JA (as he then was) stated as follows:
20.It is also the view of the TLAB that the Counsel for the Respondent vaguely inferred that since the Appellant’s name are not on the new system then automatically then the endorsements are not genuine, but there could be other factors such as human error or data loss caused by migration challenges.
21.Therefore, the standard of proof for fraud is a bit higher than balance of probability as alluded by the Counsel for the Respondent. Given the seriousness of the allegations, the onus was on the appellants to provide evidence to the Board of the alleged fraud which evidence must meet the standard of proof as was underscored by this Court in Central Bank of Kenya Limited v Trust Bank Limited & 4 Others [1996] eKLR as being beyond that of a balance of probabilities but not beyond reasonable doubt. In that case, the Court rendered itself as follows:
22.It is the view of the TLAB that it is not enough for the Respondent to casually allege that Kenyans committed fraud without particularizing and providing sufficient evidence and going ahead and making administrative decisions against them without notifying them or giving them a chance to be heard.
23.Having considered the facts, evidence adduced and the relevant law, the Transport Licensing Appeals Board hereby makes the following orders:1.As per legal requirements the Appellant has met the requirements to get a class A or its equivalent.2.The Respondent has not provided any evidence to sustain the allegations of fraud.3.The Respondent should update their online system to align it with that of the Appellant’s physical DL.4.Every party to bear their own cost.
DELIVERED, DATED, AND SIGNED IN NYERI BY THE TRANSPORT LICENSING APPEALS BOARD ON THIS 7TH DAY OF SEPTEMBER 2022.Dick Waweru Chairman ………………………James Ngomeli Member ....................................Lilian Waithera Member ………………………Maryan Hajir Member ………………………Joseph McDonald Member ……………………….
