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High court nullifies new transport rules

The High Court has once again stopped the implementation of tough matatu rules that were to take effect on Tuesday and warned the Transport minister that he risks jail time.

The ruling criticised the government for trying to re-introduce regulations which were already declared illegal because they were not passed by Parliament as they are supposed to.

Judge George Odunga censured the Cabinet Secretary for Transport, Mr Michael Kamau, over the issue saying the re-introduction of the rules while litigation was pending in court bordered on contempt.

Mockery of justice

The judge said Mr Kamau is now required to appear in court on May 14 to show cause why he should not “personally” foot the cost of the new litigation that arose out of the re-introduced regulations.

He added that Mr Kamau would serve as an example on accountability saying that the law requires “state and public officers to face the consequences of their actions when such actions are manifestly taken with impunity.”

“To blatantly and brazenly disregard legal processes or to turn them into a mockery in the execution of executive authority is in my view an affront to the rule of law, an assault on the Constitution and a recipe for chaos and anarchy,” said the judge.

According to the judge, the State was fully aware that the issue was pending in court, but went ahead to revoke and re-introduce an earlier legal notice that had been challenged on the same premise in a glaring attempt “to steal a march on both the court and the parties” involved.

“It is now clear beyond that while the judgement herein was pending delivery on March 14, 2014, Mr Kamau revoked Legal Notice number 219 of 2013 and reproduced the same as legal notice number 23 of 2014…” Justice Odunga ruled.

The regulations, said the judge, had been found wanting as they were never tabled before Parliament thus were rendered null and void.

Matatu and bus owners had also objected to the new rules which required permits for night travel and the installation of speed and location monitors which they said were punitive and a rip off .

The case challenging the rules was pending before the government published fresh laws.

Mr Justice Odunga yesterday said the government had been given the liberty of 60 days to prove its case against the petitioners but instead went ahead to substitute the rules disregarding the on-going court process.

He said the State acted dishonestly.

“In my view the revocation of Legal Notice Number 219 of 2013 was a circumstance which warranted the making of an instant application for a review of orders,” the judge said.

He explained that by simply giving the government liberty to apply within the 60-day period, where he also declared that the contested notice was still in force, did not mean that the matter had ceased to be within the court’s jurisdiction.

He said the court could have even considered extending the period within which compliance was required.

Noting that there was nothing wrong in revoking the Legal Notice Number 219 of 2013 upon realisation the same was unlawful, the judge said the government’s move to give the country a false sense of security that the said legal notice was still in force was highly dishonest.

“I therefore declare the said regulations made pursuant to Legal Notice Number 219 of 2013 null and void and the same are hereby quashed,” he said.

Under the new rules introduced by the National Transport and Safety Authority, all public service vehicles must belong to a Sacco that has at least 30 vehicles.

Each sacco must give the safety authority a list of all its employees and every month, must submit a report showing how many of its vehicles were involved in accidents and what was done about them. 

PSVs were also required to remove roof racks, which meant that passengers who travel upcountry with their luggage had to find an alternative method to move their luggage. 

It was also to be mandatory for operators to keep passenger manifests.

Each driver was not to work for more than eight hours and the journeys had to be organised such that the drivers took 30-minute rest breaks after every three to four hours of driving.