Court dismisses bid to stop night travel rules

HOTO | JACOB OWITI Travellers from Mombasa collect their luggage after a two-day journey to Kisumu on January 7, 2014 following new traffic rules limiting night travel that resulted in them sleeping in Nakuru before resuming their journey the next day. The High Court Tuesday dismissed a bid by four public service transport companies to stop the night travel ban.  NATION

In Summary

• The transport companies had argued that the directive was issued irregularly and had caused them to suffer financial loss.
• Last week, a similar petition by bus owners challenging the government ban on night travel

By Nation Reporter
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The High Court has dismissed a bid by four public service transport companies to stop the night travel ban.

Justice Isaac Lenaola ruled that Starlingrad Limited, Sabrin Bus Services, Kukena Sacco Limited and Nairobi Western Sacco Limited did not table sufficient evidence to get orders to halt the 6pm and 6am rule on public transport vehicles.

Justice Lenaola said that the applicants had based their argument on an article in a local daily newspaper stating that night travel ban on matatus and buses would cause chaos.

“Aside from the fact that this Court has constantly stated that newspaper cuttings and reports are not authoritative sources of information in legal proceedings, if that be so, it means that in fact there is no “directive” specifically banning night travel by public service operators as contended and there lies their first hurdle,” judge Lenaola said.

Justice Lenaola pointed out that the four public transport travel companies did not even present their contested licences in court as evidence to show their legality of operating at night.

“I say so because if there is in fact no “ban” and there is no “directive”, on what basis am I to issue a stay order in the manner framed by the applicants? I have considered the Application and taken into account the rival arguments and the main complaint is that there has been “a ban against… operation of public service vehicles between 6.00 p.m. and 6.00 am,” judge Lenaola said.

The travel companies had wanted an order to stop Transport Cabinet Secretary Michael Kamau's directive on the ban.

They argued that the directive was issued irregularly and had caused them to suffer financial loss.

The companies said the minister went ahead to impose the travel ban without due regard to National Transport and Safety Authority Act since their licences allowing them to travel at night were valid and had never been revoked.

According to the companies, the decision was discriminatory and oppressive since it does not apply to other transport providers plying the roads at night.

The judge told them that inasmuch as their licences issued under the Transport Licensing Act, to operate at night, Section 55 of NTSA Act replaced the TLB Act and it is in the latter Act that the new regulations were made hence the Legal Notice, that constitute the law with regard to public transport and safety in Kenya.

He read out the regulations set in the new rule and stated that the applicants failed to show any compliance with the same.

It was also contested that the new regulations were enacted and implemented in a rush and that the PSV operators require time to implement them.

“That may well be true but where is the evidence that at the very least, they attempted to comply but were caught up? It is almost one month since the regulations were enacted and no such evidence has been tendered,” the judge said.

He said since the regulations are well intentioned and are meant to curb the increasing number of accidents involving public service vehicles at night it is upon them to embrace the change, quickly comply with them and reclaim their position as obedient night time public service motor vehicle operators.

He added that he indeed he understood the PSV operators plight of wanting to cash in day and night during the festive season to cater for their financial obligations,

Though they have been terribly affected, the judge said that they badly framed their case instead of seeking consultations with NTSA and the ministry to extend time for them in order to implement the regulations.

“There is the wider public interest that road carnage should be curbed, discipline instilled in the transport service and that lives should be saved in doing so, I choose to invoke the public interest as opposed to the short term private convenience,” he ruled.

Last week, a similar petition by bus owners challenging the government ban on night travel was put on hold pending Tuesday’s judgment.

(Read: New case on night travel suspended)

The second case is filed by Kenya Country Bus Owners Association, Mbukinya Bus Service, Crown Bus Service, Kampala Coaches Ltd, Traticom Ltd, Ugwe Bus Services, Trisha Collections Ltd, Panther Travels and Neno Courier Services.

Justice Lenaola directed the four to meet with the bus owners’ case and jointly seek the next cause of action for the second case’ fate which will be mentioned Wednesday.