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Drivers can have one for the road but NTSA warns ‘we’ll arrest you’

Drunk drivers are having the time of their lives.

On Monday, a magistrate in Nairobi released them without a fine and ordered their cash bail be paid back.

This is after the Court of Appeal ruled on Friday that police can’t charge anyone for failing the breathalyser test.

And the ruling couldn’t have come at a better — and more dangerous time — for law-abiding motorists.

The Easter holiday is about to begin and without the dreaded alcoblow on the roads, there is certain to be bingeing and deadly crashes.


On Monday, Resident Magistrate Elector Rianyi ordered drink-driving suspects released and their cash bail returned after the prosecution applied that the charges against them be withdrawn in light of the Court of Appeal ruling.

However, the drivers are still not entirely off the hook yet since they can be charged under the Traffic Act which was not affected by Friday’s judgment.

Appellate judges GBM Kariuki, Fatuma Sichale and Festus Azangalala had in their verdict, said that the breathalyser rules do not create an offence independent of sections 44, and 45 of the Traffic Act, and that they are incapable of creating an offence.

“No one can be charged under rule 3(1) of the breathalyser rules. Although the enforcement of the Traffic Breathalyser Rules 2010 is part of the lawful duty of the police to deter crime, they were badly drafted and must give way to the Traffic Act,” ruled the appellate judges.

Separately, the National Transport and Safety Authority (NTSA) Director General Francis Meja has said that the court of appeal advised that drink-driving cases be prosecuted under Section 44 (1) of the Traffic Act as opposed to the breathalyser rules.


“This does not in any way affect the validity of drink-driving operations and NTSA shall continue to conduct these operations countrywide,” said Mr Meja.

He added that following Friday’s verdict, some members of the public attacked NTSA officers who were conducting drink-driving operations.

“While we condemn these attacks, we wish to make it absolutely clear that such actions shall not be condoned and those found attacking our officers shall face the full force of the law,” Mr Meja said.

He said driving under the influence of alcohol is still an offence and the authority will continue to execute its mandate so as to keep the roads safe.

The appeal court verdict has also thrown into disarray several other pending cases across the country where suspects were charged under the Breathalyser Rules of 2010, as the prosecution is now faced with only one option — to withdraw them as well.


Addressing a news conference in Nairobi, Mr Meja said: “There have been some misinterpretations of the ruling and we are seeking clarification on the law. Our operations have not been outlawed.”

“The appeal was upheld and they’ve upheld the decision by Justice Majanja. Meaning the rules are still in force. We have read the ruling and it does not prohibit us from conducting our activities.”

“We will be going to court under certificate of urgency to seek a clarification on this judgement.  This issue is bringing a lot of confusion,” he added.

Additional reporting by Pauline Kairu