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Kangemi Matatu Sacco Limited v National Transport and Safety Authority & 3 others; Westlands Watch for Party Peace Gender Devt. & another (Interested Parties) (Appeal 007 of 2020) [2023] KETLABT 178 (KLR) (23 February 2023) (Ruling)
Neutral citation:
[2023] KETLABT 178 (KLR)
Republic of Kenya
Appeal 007 of 2020
Joseph Mcdonald, Ag. Chair, Lillian Waithera, Maryan Hajir & James Ngomeli, Members
February 23, 2023
Between
Kangemi Matatu Sacco Limited
Appellant
and
National Transport and Safety Authority
1st Respondent
Latema Travellers Bus and Safaris Ltd
2nd Respondent
Nairobi City County
3rd Respondent
Digital Luxury Travellers
4th Respondent
and
Westlands Watch for Party Peace Gender Devt.
Interested Party
Kangemi Boda Boda
Interested Party
(Being an Appeal /Application for review from the Judgment and Orders of the Transport Licensing Appeals Board sitting at Nairobi (Dick Waweru Chair (as he then was), McDonald, Ngomeli, Waithera and Maryan –Members) delivered on the 16thSeptember 2022, in TLAB Appeal No 007 of 2020)
Ruling
A. Introduction
1.The Petition of Appeal/Review herein is dated December 14, 2022 and was lodged on the same date. The Petition for Appeal/Review was done under certificate of urgency and Notice of Motion and supported by the affidavit of one Mr Simon Kinyanjui a director of the 2nd Defendant /Applicant all dated December 14, 2022. An affidavit of service was also filed on January 25, 2023.
2.The Defendant/Applicant, Latema Travellers Bus and Safaris Company Limited, seeks to set aside/appeal or/and review the Judgment of the same Tribunal in TLAB Appeal No 007 of 2020 delivered on October 12, 2022.
B. Background
3.The Appellant is a Sacco that is registered under the Co-operative Societies Act (Cap 490) and has been duly licensed by National Transport and Safety Authority (herein after referred to as “NTSA”), the 1st Respondent to operate service vehicles.
4.The 1st Respondent-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.
5.The Second Respondent is a limited liability company that is licensed by the 1st Respondent to operate public service vehicles.
6.The 3rd Respondent is a County Government established under the County Governments Act of 2012. It has the mandate to manage the devolved function of county transport under Schedule 4 of the Constitution of Kenya. Under Section 72A (1) (a) and (b) of the Traffic Act Cap 403 Laws of Kenya the 3rd Respondent is mandated inter alia to designate parking places on roads, within its area of jurisdiction for vehicles or vehicles of any particular class or description, having regard to both the interests of traffic and the interests of owners and occupiers of adjoining property; and prescribe the manner in which vehicles shall stand in or be driven into or out of the designated parking place.
7.The First and Second interested parties are welfare associations.
8.The Third Interested Party is a limited liability company that is licensed by the First Respondent to operate public service vehicles.
9.The successful application for a route extension from the National Transport Safety Authority the 1st Defendant/Respondent to cover Kangemi by the 2nd Defendant/Respondent (then)/Applicant (now) triggered the dispute.
10.The Appellant (then); now Respondent together with 4th Defendant/4th Respondent and the 1st and 2nd Interested Party challenged the decision of the NTSA granting a route extension to the 2nd Defendant/Applicant dated February 25, 2020, on grounds that NTSA issued the route extension without conducting public participation which was a direct violation to Constitution Article 10 (2) (b); Article 47 (1) (2); Section 4 (1) and (3) (a) and (b) of the Fair Administrative Action Act, 2015, Section 29 of the NTSA Act No33 of 2012 and rules of natural justice which are unequivocal to inter alia conduct public participation or at least involve stakeholders before making its decisions.
C. Litigation History
i. Proceedings in the Tribunal at the 1st Instance
11.The Appellant Kangemi Matatu Owners Sacco Society (herein after referred to as “KMO”) had lodged an appeal at the Transport Licensing Appeals Board (herein after referred to as “TLAB”) on July 10, 2020 seeking a permanent injunction restraining the Applicant/Defendant-Latema Travellers Bus Ltd (herein after referred to as “LTB”) from operating in Kangemi shopping centre. It was the contention of KMO that NTSA had extended the route of LTB, to include Kangemi, without following the required procedure as provided for in the NTSA Act, which led to chaos erupting in Kangemi.
12.From the amended Memorandum of Appeal dated 10th September 2020; the Appellant was challenging the decision of the 1st Respondent dated 25th February 2020; on the ground that the impugned decision contravened Article 47 of the Constitution as read together with the provisions of section 4 (3) of the Fair Administrative Act.
13.The Appellant further averred that the impugned decision of the NTSA were issued without due regard to Section 29 of the NTSA Act No33 of 2012 which requires the 1st Respondent in mandatory terms to have regard to the public interest, including the interest of persons requiring and those of persons providing facilities for transport, and to such other matters as may be prescribed before issuing a licenses. To buttress this point, the Appellant averred that the impugned licensed route was already congested and issuing a license to the 2nd Respondent (LTB) to operate in the same route was a recipe for chaos and anarchy. Lastly the Appellant contended that the impugned decision was athwart to the rule of natural justice, hence the NTSA was offensive and violates the same.
14.The Appeal was supported by the 1st ,2nd Interested Party and 4th Defendant/Respondent but opposed by the National Transport and Safety Authority 1st Defendant/2nd Respondent and Nairobi City County 3rd defendant/3rd respondent.
15.The Appellant and the 3 interested parties argued that the 1st Respondent; the Authority is required by the Constitution Article 10 (2) (b); Article 47 (1) (2); Section 4 (1) and (3) (a) and (b) of the Fair Administrative Action Act,2015, Section 29 of the NTSA Act No33 of 2012 and rules of natural justice -to inter alia conduct public participation or at least involve stakeholders before making its decisions.
16.On the other hand, the 1st Respondent and the 2nd Respondent made a case arguing that Section 29 of NTSA Act No33 of 2012 gives it discretion without reference to any person or authority to grant, deny or suspend a license.
17.In light of the above two juxtapositions during the hearing, the Tribunal- Transport Licensing and Appeals Board extrapolated a singular issue for determination.
Whether vide Section 29 of the NTSA Act No33 of 2012-NTSA ought to have involved the stake holders before granting the License to the 2nd Respondent?
18.In its decision the Tribunal ruled that Section 29 of the NTSA Act No33 of 2012 gives NTSA discretion to grant or decline any application for a license subject to certain conditions. These conditions are to be found under Section 5,6 and 7 of the National Transport and Safety Authority (Operation of Public Service Vehicles) Regulations, 2014; such that if an operator meets this criterion then the Authority can grant a license. However, under the same Section 29 of the NTSA Act the law stipulates a caveat in the discretionary powers granted to the Authority it states inter alias
19.The Tribunal in its ruling dated October 12, 2022 revoked the decision by NTSA to extend the RSL of the 2nd Defendant/now applicant to cover Kangemi market. In revoking the extension, the Tribunal placed reliance in the case of Ombati v Chief Justice & President of the Supreme Court & another; Kenya National Human Rights and Equality Commission & 2 others (Interested Party) (Petition E242 of 2022) where the High Court in Kenya statedThe Court further stated
20.It was the Tribunal’s view that any decision made by an administrative body that is likely to affect many parties and stakeholders, had to always accord with the Constitution, failing which the same could not stand. There was no exemption given under the Constitution, to NTSA from complying with the provisions of article 10(1) and Section 29 of the Act; especially in situations where there are already objections to the said decisions.
21.In its final decision the Tribunal ordered that the impugned decision made by the NTSA dated 25th February 2020; granting the 2nd Respondent (now defendant/applicant) an extension of the Route to cover Kangemi-james Gichuru–lavington– Kawangware–kabiria-ngong Road Kenyatta Avenue-odeon was revoked until effective stakeholder’s engagement is done.
22.Dissatisfied by the Decision of the Tribunal the 2nd Defendant /Applicant approached the Tribunal via Section 80 of the Civil Procedure Act, order 45 Rule 1 of the Civil Procedures Rules as read together with Section 39 (7) of the National Transport and Safety Authority Act, 2012 seeking to review the decision of the Tribunal.
ii. Proceedings before the Tribunal (Review Application)
23.As indicated above; aggrieved by the judgment and orders of the Tribunal in the first instance, the defendant/now applicant filed this Petition of Appeal under a certificate of urgency, Notice of Motion and supported by an affidavit by one Mr Simon Kinyanjui a director of the Applicant dated December 14, 2022; in the instant Certificate of Urgency the Applicant provided the following grounds thata.The National Transport and Safety Authority (NTSA) has moved to revoke the RSL for the route Kangemi-James Gichuru-Lavingtone-Kawangware-Kabiria-Ngong Road-Kenyatta Avenue-Odeon belonging to the 2nd Respondent (then-now 2nd Defendant/Applicant)-my addition.b.The move is following the judgment issued on October 12, 2022, by the Transport Licensing Appeals Board.c.The judgment was issued pursuant to the Application by the Appellant contained in the Application dated July 10, 2020, which Application sought orders of injunction restraining the 2nd Respondent from operating within the Kangemi Area.d.Indeed, the 1st and 2nd Interested Party came into this suit as they operate within Kangemi Area which area was the disputed area within the prayers of the suit filed.e.The Judgement of the Tribunal has moved to revoke the entire route of the 2nd Respondent, which route was not subject of the suit herein. The 2nd Respondent’s RSL has other routes other than Kangemi. The License is Kangemi-JamesGichuru-Lavingtone-Kawangware-Kabiria-NgongRoad-Kenyatta Avenue-Odeon.f.The revocation of this entire route would essentially collapse the business of the 2nd Respondent.g.The Area in question was only Kangemi and not the other areas.h.There is need for the Judgement to be reviewed and cover what was in the pleading of the parties.i.If this Application is not heard in the first instance the Applicant will suffer irreparable harm.j.Therefore, it is in the interest of justice that the instant Application be heard and determined urgently.
24.In the instant Notice of Motion, the Applicant was seeking the following reliefs:a.That this Application herein be certified urgent, service thereof be dispensed with and the same be heard ex parte in the first instance.b.That the firm of Messrs. Waruiru, Karuku and Mwangale Advocates be granted leave to come on record on behalf of the defendants.c.That this Honorable Tribunal be pleased to issue an order of stay of execution of the Judgement, resultant Decree and consequential orders issued pursuant to the judgement issued on October 12, 2022 pending the hearing and determination of this Application inter partes.d.That this Honorable Tribunal be pleased to issue an order of stay of execution of the Judgement, the resultant decree and consequential orders issued pursuant to the Judgement issued on October 12, 2022 pending determination of the suit.e.That this Honorable Tribunal be pleased to review, vary and/or vacate its judgement delivered on October 12, 2022 together with the resultant, decree and consequential orders thereof.f.That this Honorable Tribunal do orders that the matter be heard on its merits and the Defendants be allowed to participate in the said trial.g.That this Honorable Tribunal court be pleased to grant any other orders and relief it deems just and expedient in the circumstance.h.That the cost of this Application be provided for.
D. Preliminary Objections
25.The 4th Defendant/Respondent filed a notice of preliminary objection, dated January 24, 2023 on the following grounds:a.The Defendant’s Motion dated 14th December 2022 is frivolous, vexatious and a gross abuse of the Court Process as this Honorable Tribunal is divested of jurisdiction to entertain an application for Review on the Judgement of the Tribunal the 2nd Defendant/Applicant has already appealed against.b.The prayer in issue in the Motion dated December 14, 2022 are omnibus and cannot be granted in one fell swoop.c.The motion has no merit.d.The motion is made in bad faith to deflect from the Defendant’s failed Appeal process invoked by a Notice of Appeal dated 13th October and filed before this Honorable Tribunal, no record of appeal having been lodged with the High Court within the prescribed time or at all.e.The Motion is fatally defective as it purports to invoke the broad view jurisdiction under Order 45 of the Civil Procedure Rules in a blanket manner without specifying the specific ground for Review under Order 45 or the specific Rule the Applicant relies on.f.The 1st Defendant cannot be stopped from fulfilling its statutory obligations or executing this Honorable Court’s Judgement already issued as by law envisaged.g.The application is a deliberate and mischievous act intended to delay the due administration of Justice in these proceedings and frustrate the practical effecting of this Honorable Court’s duly issued judgement.h.Litigation must come to an end as per the judicial policy espoused in Article 159 (2) (a) of the Constitution of Kenya; to grant the pleas sought by the 2nd Defendant would be a defeat of this Constitutional mandate.i.The 2nd Defendant’s Motion constitutes an unlawful justification for the Applicant to continue acting the prescription of the law, and in breach of Article 10 (2) (b) of the Constitution of Kenya, espousing the upholding of the principle of Rule of Law.j.To grant the relief sought by the Defendant would itself breach and violate Article 10 (2) (b) of the Constitution.
26.By reason of the matters foregoing in the grounds of opposition, the 4th Defendant/Respondent sought the prayer that the stated Defendant’s Motion dated December 14, 2022 be dismissed with costs to the 4th Defendant.
E. Submissions
a. Applicant/2nd Defendant.
27.The appellant filed submissions on February 1, 2023. The applicant submits that the Honorable Tribunal has jurisdiction to hear this matter vide Section 39 (7) of the National Transport and Safety Authority Act, 2012 which states:
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 [2022] 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 [2022] 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 [2018] 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) [2021] 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.
56.To support the above argument counsel relied on the case of Republic vs Principal Secretary, Ministry of Internal Security & Another Exparte Schon Noorani & another [2020] eKLR; where the Court held that
57.Mr Kinyanjui counsel for the 4th Defendant also submits that the Tribunal cannot re-open this matter and the only recourse available to the Applicant is to pursue an appeal. To support this position Counsel placed reliance on the case of Josephat Ndirangu Waweru T/A Mooreland Mercantile Co. vs Hill Work Furniture Limited (C.A No36 of 2012 [2015] eKLR where the Court held: -
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 [2018] 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.
E. Issues For Determination
61.The 2nd Defendant/Applicant in its submissions framed the following issues for determination:a.Whether this Court has jurisdiction to hear and determine the instant review application.b.Whether the Applicant has met the threshold to warrant the review of the judgement delivered on October 12, 2022.It is on this basis that the 4th Defendant/respondent filed their submissions in response to the Notice of Motion and Application.
62.Two preliminary objections have been raised by the 4th Respondent/Defendant on grounds that this Tribunal has no jurisdiction to entertain this Application/Review. This is because the Application is framed as a review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 and 2 of the Civil Procedure Rules 2010, and the Applicant also filed a Notice of Appeal and secondly there is an argument that once a Tribunal renders its judgement it becomes functus officio and cannot review or stay its judgement as prayed by the Applicant.
63.Having carefully considered and evaluated the two preliminary objections, pleadings, arguments and submissions in this Application, we are of the considered view that the following issues as framed by the 2nd Defendant /Applicant will suffice to dispose of the appeal:i.Whether this Court has jurisdiction to hear and determine the instant review application.ii.Whether the Applicant has met the threshold to warrant the review of the judgement delivered on October 12, 2022.
64.The issues raised in the Grounds of Opposition by the 4th Respondent/Defendant shall be discussed within the above headings for example the ground of opposition that this court is functus officio will be discussed under the issue of jurisdiction and the ground of opposition that the Applicant cannot simultaneously apply for a review and notice of appeal shall be canvassed under the issue as to whether the Applicant meets the threshold to warrant the review of judgement delivered on October 12, 2022.
65.A consideration of the above issues, shall have addressed the rest of the issues as framed, some of which form the basis of the decision of the Tribunal on the judgement delivered on October 12, 2022 or arise as a consequence thereof.
E. Analysis And Determination
i. Whether this Court has jurisdiction.
66.Our jurisdiction having been challenged, it must follow that the question be determined in limine. This is because in the event that we uphold the objection, that would determine the whole matter, without need to venture into the merits or lack thereof. The jurisdiction question now before us arises in one respect, arising from the grounds of objections by the 4th Defendant/respondents as earlier pointed out that once a Tribunal renders its judgement it becomes functus officio and can not re-open the case again; either by giving stay of execution orders or reviewing the same judgement
67.As we have variously stated before, our jurisdiction stems from the Constitution itself [See Article 47 and 159 (1),] and also from Statute [See the NTSA Act 2012 and the Fair Administrative Action Act, 2015] . While it is for the litigant to choose which jurisdiction to invoke, once that decision is made, the same must meet the constitutional and statutory set threshold. In this instance, the Applicant maintains that this Court has jurisdiction vide Section 38 and 39 of the National Transport and Safety Authority Act, 2012.More specifically Section 39 (7) of the act which states that:
68.On the Contrary the 4th Defendant/Respondent made an argument through ground no (1) in the grounds of opposition to the effect that this Tribunal is divested of its jurisdiction having render its decision on the same matter hence becoming functus officio
69.It is our considered view that this Tribunal has jurisdiction within the careful reading of Section 39 (5) and (7) of the National Transport and Safety Authority Act. IN the exercise of its jurisdiction under section 39 (5) of the NTSA Act, the Board has the powers to affirm or reverse the decision of the NTSA, or make such other order as the Board considers necessary and fit.”
70.Section 39(5) of the NTSA Act expressly empowers the Board in hearing an appeal to affirm or reverse the decision of the Authority, or make such other order as the Board considers necessary and fit. This can include any order necessary to enforce the decision of the Board on an appeal. Whilst commenting on the scope of the term “such other order as the Board considers necessary and fit” under section 39 (5) of the NTSA Act, Justice Odunga (as he was then) in Jaset Enterprises Ltd v The Director General National Transport and Safety Authority (JR Misc Civil Application No 17 of 2017) says that:
71.Section 38 (1) does not prescribe the specific grounds of appeal that can be relied upon and, therefore, permits TLAB to consider all grounds so long as they touch on the licensing decisions of NTSA. As such, some of the appeals made to TLAB will be based on grounds that are envisaged under Article 47 of the Constitution, which is implemented through the Fair Administrative Actions Act 2015. Justice Odunga (as he was then) clearly confirms this position in the case of Jaset Enterprises Ltd v The Director General National Transport and Safety Authority (JR Misc Civil Application No 17 of 2017). It is the case that the Fair Administrative Actions Act has made significant changes to the orders that can be made under a judicial review application.
72.Article 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.” Section 7(2) of the FAA Act 2015; also states that “a court or tribunal under subsection (1) may review an administrative action or decision, if- the administrative action or decision violates the legitimate expectations of the person to whom it relates;”
73.Using the above two legal principles it is our considered view that the Tribunal can gain jurisdiction by asking two pertinent questionsi.Would it be fair to cancel the entire Road Service License of the Applicant based on an application and denial thereof for a route extension?ii.What was the legitimate expectation of the Applicant in applying for a route extension?
74.It is obvious that if our Judgement of October 12, 2022 resulted into the cancelation of the entire RSL of the Applicant then the letter dated December 14, 2022 referenced NTSA/DR&L/C/ADM/VOL 201 can be deemed to be a new administrative action by NTSA which is then subject to the purview of the Tribunal within the reading of Section 38 and 39 of the NTSA Act 2012.
75.In determining the appropriate path, we note that we have to address the issue raised by Counsel for the Respondent/ 4th Defendant that this Tribunal having pronounced itself on October 12, 2022 it becomes functus officio. The term functus officio is defined at p 840 of Jowitt's Dictionary of English Law 2 Ed.:
76.In the SC decision in Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 Others [2013] eKLR, the Court cited with approval an excerpt from an article by Daniel Malan Pretorius titled, “The Origins of the functus officio Doctrine, with Special Reference to its Application in Administrative Law” (2005) 122 SALJ 832 which reads: -
77.The Court of Appeal in the case of Telkom Kenya Limited v John Ochanda (Suing on his own behalf and on behalf of 996 former Employees of Telkom Kenya Limited) [2014] eKLR held as follows:
78.Following from the above reasoning whereas the doctrine of functus officio is important to ensure that there is finality to litigation the courts and tribunals have residual powers to ensure that their orders are adhered to or properly implemented. In this regard that our judgement dated October 12, 2022 created confusion as to whether the entire RSL was cancelled or only the extension as requested? we are of the considered view that we can not sit back and fold our hands and say we are functus officio and let the injustice reign. It is for this reason that we feel that we can claim jurisdiction to correct the mis-understanding in our judgement.
79.The second issue is whether the procedure for review was properly followed and whether the act of filing for a Notice of Appeal by the Applicant denies him a right to apply for review under Section 80 of the CPA as read together with Order 45 Rule 1 and 2 of the Civil Procedure Rules. Both Counsels have mad very passionate and compelling arguments on this issue. Our take on this is the Tribunal sees no value in this discussion having gained jurisdiction over the matter. Secondly Section 39 (7) of the NTSA Act 2012; which states that:Provides the Tribunal some inherent/residual powers to make a determination on whether it can hear the suit or not.
80.What makes Tribunals and Courts different is the fact that Tribunals are not bound so much with rules of procedure and technicality and they can make decisions based on the facts and situation on the ground. This position seems to be supported in the Canadian case (Weber v. Ontario Hydro [1995] 2 SCR 929), in the dissenting opinion of Lacabucci, J. (para 14)
E. Reliefs
81.Having gained jurisdiction of the matter; the inescapable conclusion is that the grounds of opposition by the 4th Defendant/Respondent hereby fails automatically.
82.What commends itself for our determination at this moment is the consequential reliefs to be granted in line with our finding. We note that the Applicant asks the Tribunal to review its decision. We are other opinion that our judgement was not clear and that has caused confusion and uncertainty both in the execution of the orders and the status of the existing RSL of the Applicant.
83.It is important to note that what was revoked were the decision to “extend” the route to Kangemi Shopping Centre and there fore the status quo as before the application to apply for route extension subsists.
84.Before we conclude, we thank all Counsel for their erudite input, research and presentation in the course of the hearing of this matter.
85.In conclusion and for all the reasons given, we find merit in this Application for Review and grant relief as set out hereunder.
E. Orders
86.Consequently, upon our conclusion, we order that:i.The Certificate of Urgency, Notice of Motion and Application for Review dated December 14, 2022 be and is hereby allowed;ii.The judgment and orders of the Tribunal in TLAB –E-007 of 2020 delivered on the October 12, 2022 be and are hereby set aside in entirety; The new orders of the Tribunal area.That the impugned decision made by the Authority dated February 25, 2020; granting the 2nd Respondent an extension of the Route to cover Kangemi Shopping Centre - is hereby revoked until effective stakeholder’s engagement is done. And for avoidance of doubt the 2nd Defendant maintains his current RSL.b.NTSA to official communicate this decision clearly stating the status quo being maintained pursuant to this order.c.OCPD Kangemi to effect the orders.d.Each party to bear its cost.iii.Each party to bear their cost in this 2nd Application for review.
It is so ordered.
DATED AND DELIVERED AT NAIROBI THIS 23RD OF FEBRUARY, 2023………………………………JOSEPH MCDONALDAg.Chair TLAB ………………….LILIAN WAITHERAMEMBER TLAB………………….MARYAN HIRJI MEMBER TLAB………………….JAMES NGOMELIMEMBER TLAB I certify that this is a true copy of the original.CEORANSPORT LICENSING APPEALS BOARD
