a. Applicant/2nd Defendant.
28.To counter the ground number (d) of the grounds of opposition by the 4th Defendant/4th Respondent, that having filed the Notice of Appeal on 12th October,2022 that the Applicant was abusing the court’s process having filed an appeal the Applicant submits that the 4th Respondent/4th Defendant did not tender an iota of evidence to show that the Applicant had indeed filed an Appeal at the High Court.
29.The Applicant further submits that it is trite in law that a notice of appeal is just a formal notification of an intended Appeal. To buttress this point that the Applicant placed reliance on the case of HA vs LB  eKLR.
30.The Applicant also submitted that the mere fact that a notice of appeal was lodged not amount to an appeal for the purpose of review. In any case the Tribunal has jurisdiction to entertain an application for review. On this point the Applicant relied on the High Court of Kenya decision in the case of London Distillers (K) Ltd vs Cabinet Secretary of Education & 4 others  eKLR.in which the court cited the case of Yani Haryanto vs E.D & F. Man (Sugar) Limited Civil Appeal No122 of 1992 wherein the Court of Appeal held as follows
31.The applicant submits that a perusal of the judgement reveals that the honorable Tribunal revoked the Applicant’s entire RSL license for route Kangemi-James Gichuru-Lavingtone-Kawangware-Kabiria-Ngong Road-Kenyatta Avenue-Odeon when it held as follows
32.The Applicant’s position on the above is that this is an error apparent on the record, which error apparent on the record, which error completely wipes out the operations of the Applicant and further denies the Applicant the right to be heard, the other routes in the Applicant’s RSL have never been in contention, the letter dated 25th February,2020 was not in contention, what was in contention were the operations at Kangemi shopping centre.
33.The Applicant pleaded with the Honorable Tribunal to intervene and justice to the Applicant, the Applicant should not be condemned to go for an appeal and yet the error on the record could be amended through a review.
34.To buttress this point, the Applicant relied on Section 80 of the Civil Procedure Act which provides as followsAny person who considers himself aggrieved-a.By a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; orb.By a decree or order from which no appeal is allowed by this Act, May apply for a review of judgement to the court which passed the decree or made the order and the court may make such orders thereon as it thinks fit.
35.Further the Applicant stated that the threshold for Section 80 above is set out in Order 45 (1) of the Civil Procedure Rules,2010 which rules provides as follows:(1)Any person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.
36.From the foregoing the Applicant referred to the High Court case of Omulele & Tolo Advocates vs Mount Holdings Ltd  eKLR wherein the Environment and Land Court cited the case of Evans Bwire vs Andrew Aginda Civil Appeal No14 of 2006, and the Case of Stephen Githua Kimani vs Nancy Wanjira Waruingi T/A Providence Auctioneers (2016) eKLR in which Court of Appeal held as follows:
37.The applicant concludes by stating that it was clear that the original RSL was never a bone of contention going by the pleadings of the parties before the Tribunal a wholesale revocation the Applicant’s RSL will be unjustified, and if the decision of the Tribunal is not reviewed or/and clarified then the Applicant risk of substantial loss that cannot be compensated by way of damages. They reiterated that the review order is based on the correct facts that were pleaded at trial, and that the entire RSL was not on trial, it was only the extension to Kangemi Shopping Centre.
b. The 1st Defendant/2nd Respondent (NTSA)/ 1st and 2nd Interested Parties
38.The 1st Defendant /2nd Respondent was represented by Counsel Cheruiyot and the 1ST and 2nd Interested party/5th and 6th Defendant were represented by Counsel Masaviru. Even though they did not submit any written submissions; they made oral arguments in court and the common thread in their arguments is that they support the Application of the 2nd Defendant/Applicant.
39.Mr Masaviru for example submitted that in the original pleading the 1st and 2nd Interested Party were only concerned with congestion in Kangemi area and never intended to lock out the Applicant from business.
40.Mr Masaviru submitted that the proceedings before the Tribunal were a review in nature and that the court has jurisdiction to review its judgement on apparent record as provided for under Section 80 of the CPA and order 45 (1) of CPR. He concluded that if the orders were not reviewed then there will be great injustice to the Applicant. He stated that his clients had no intention whatsoever to affect the existing business of the Applicant, just the extension to Kangemi Shopping centre.
41.On the other hand, Mr Cheruiyot for the 1st Defendant /2nd Respondent argued that they followed to the letter the judgement of the Tribunal. He presented a letter referenced NTSA/DR&L/C/ADM/VOL 201 dated December 14, 2022. The letter read in part:He further argued that if there was a confusion as to what the judgement was then it is only fair within the purview of Section 80 of the CPA and Order 45 (1) of the CPR to review the same to bring clarity and not disfranchise the Applicant.
42.Lastly Mr Cheruiyot argued that the National Transport and Safety Authority Act, 2012 creates the Tribunal under section 39 to hear and determine issues relating to licensing and therefore the Tribunal has jurisdiction to hear this matter. He submitted that it would be unfair to condemn the Applicant to file an appeal at the High Court challenging the decision of this court while the issue before the court is just a review of its own judgement, which is allowed in law. He implored the court to clarify its judgement whether it affected the existing RSL or only affected the extension.
c. 4th Defendant/4th Respondent-Digital Luxury Travelers Company Ltd.
43.The 4th Defendant/4th Respondent were represented by Counsel Harrison Kinyanjui. The 4th Defendant/4th Respondent responded by way of replying affidavit of one Stanley Ngugi Gacheru a director of the 4th Defendant dated 24th January 2023, grounds of opposition dated January 24, 2023 and written submissions dated 6th February 2023. The grounds of opposition have already been discussed in part D above
44.The gist of the replying affidavit was that the relevant procedural law forbids the applicant from appealing against the decision of a judicial body and simultaneously (or contemporaneously) seeking to have the same reviewed as in the instance.
45.It was further stated Order 45 Rule 1(a) and (b) of the Civil Procedure Rules sets out the conditions that an applicant (such as the Applicant) must meet on an application for review, but emphasizes what the proviso of Section 80 (a) and (b) of the Civil Procedure Act bars. Which clearly shows that the options of a review and an appeal are not simultaneously available to the applicant.
46.The 4th Defendant alleged that the Applicant has developed an irresistible penchant for invading other routes and is notorious for intruding into established routes and gain dubious and unlawful Road Service License and has hence come before this Honorable Appeals Tribunal in furtherance of an illegal misadventure, which not ought to be permitted. To buttress this point, the 4th Defendant cited the Tribunal case of Ganaki Multi-Purpose Cooperative Society vs National Transport Authority & Another; Latema Travellers Bus & Safaris Co. Ltd (Interested Party)  eKLR. On paragraph 6 of the said case; the Tribunal had crystallized the complaint by Ganaki as against the 2nd Defendant/Applicant herein as follows:
47.Finally, the 4th Defendant contended that once the Tribunal renders its judgement it automatically becomes functus officio and the 1st Defendant/Respondent (NTSA) has no other choice than to implement the judgement to its fullest.
48.As earlier stated the 4th Defendant also filed written submissions dated 6th February 2023; which were similar in issues as the Replying affidavit save for the following points canvassed herein after.
49.First the 4TH Defendant submitted that there was no evidence that NTSA had revoked/suspended or cancelled the Applicant’s RSL either in part or entirely and that there was no similar evidence in writing from NTSA that the judgement of this Honorable Tribunal sought to be set aside was ever complied with by the NTSA.On this point the 4th Defendant further submits, that the instant motion of the Applicant is devoid of any supportive evidence and therefore lacks merit.
50.The 4th Defendant further submits that the Applicant has failed to exhibit the judgement/decree/order sought to be reviewed and it was baffling that the 2nd Defendant has sought the grant of prayer 6 of the motion framed thusOn this point the 4th Defendant submits that there was no evidence of this alleged “non-participation” by the 2nd Defendant in the trial leading up to the judgement sought to be vacated. He continued by saying that there was no evidence tendered to demonstrate that the Applicant was ever kept from submitting specific evidence during the trial and in any event, there was nothing that the Applicant placed before the court as “new” evidence that has necessitated the Court’s review of its own judgement that was previously Not in his possession.
51.Counsel for 4th Defendant further submitted the grounds of opposition already discussed above but went further to submit that the 4th Defendant opposes the Applicant’s stated instant motion in the manner explicated therein.
52.Counsel further submits that prayer number 3 and 4 as sought in the instant motion by the Applicant are incapable of grant. Prayer 3 and 4 readsOn this point Counsel for the 4th Defendant Mr Kinyanjui submitted that it is common ground that there is no pending suit before the Tribunal and that having rendered its decision on the 12th October 2022 it automatically becomes functus officio and hence there is no basis for a plea for stay of execution as sought in prayer number 3 and 4 on the instant motion.
53.Counsel also submits that the review of judgement as prayed by the Applicant is not available; since it was not contested that the Applicant had lodged a Notice of Appeal to the High Court to contest the instant Judgement and the copy of the notice was annexed as evidence marked “SNG 3”.
54.To buttress the above point Counsel pointed at ground 1 of the 4th Defendants ground of objection objects the Applicant’s motion in the following terms
55.The Counsel further submits that the Applicant invoked Section 80 of the Civil Procedure Act in its instant motion, yet it has already appealed against the decision of the Tribunal which it seeks to have reviewed; he noted that Section 80 of the CPA providesAny person who considers himself aggrieved-a.By a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; orb.By a decree or order from which no appeal is allowed by this Act, May apply for a review of judgement to the court which passed the decree or made the order and the court may make such orders thereon as it thinks fit. (Emphasis by the Counsel for 4th Defendant)Counsel contented that the Applicant did not deny that it has appealed against the said judgement of the Tribunal. It also did not deny that it has sought the typed proceedings in furtherance of its decision to Prefer an appeal against the said judgement. Lastly on this point; counsel also contended that the Applicant did not tender any evidence that it has withdrawn its Notice of Appeal. The Applicant cannot prefer and appeal against the Tribunal’s judgement dated October 12, 2023 and seek review to the same judgement.
58.Counsel also contended that the Applicant has not denied that it filed a Notice of Appeal on 21st October 2022 to appeal against the impugned judgement of the Honorable and therefore the procedure for appeal and review cannot be simultaneous. To further illustrate the irreconcilable and opposing procedure of simultaneous appeal and review counsel pointed the Tribunal to the case of Serephen Nyasani Menge vs Rispah Onsase  eKLR where Mutungi J (as he then was) stated at paragraph 14 of the said judgement: -
59.Lastly in its submission Mr Kinyanjui Counsel for 4th Defendant; opined that Section 79G and 95 of the Civil Procedure Act which provided for filing of appeals from subordinate courts and for enlargement of time respectively has not been invoked by the Applicant in the High Court, hence this Honorable Tribunal cannot usurp the role of the High Court where the Applicant has escalated the dispute to. Counsel further stated that its is apparent that the Applicant has not filed its Record of Appeal as yet before the High Court, and it is equally clear that 30 days have since lapsed since October 21, 2022 as mandated by law for the filing of the Record of Appeal and has not demonstrated that he faced any arduous or onerous obstacle to lodge its Appeal in meeting the terms of Section 79G of the Civil Procedure Act. Section 79G of the Civil Procedure Act relevant in that aspect provides as follows:
60.In conclusion Counsel stated that the 4th Defendant relies on the Grounds of Objection herein lodged dated 24th January 2023 as well as the Replying Affidavit of one of the directors of the 4th Defendant, Mr Stanley Gacheru to oppose the Applicant’s/2nd Defendant’s Motion and by reason of the matters foregoing the 4th Defendant/Respondent prayed that the Applicant’s Motion dated December 14, 2022 be dismissed with costs to the 4th Defendant.