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Case Brief · caselaw.co.ke
High CourtPartially AllowedPetition No. 440 of 2018 (Consolidated with Petition No. 1 of 2019)

Latema Sacco & 30 others v National Transport & Safety Authority & 7 others (with Madiwa Matatu Owners Sacco Society Ltd & 23 others v National Transport & Safety Authority & 2 others)

High Court of Kenya
16 July 2020
14,127 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~57 min to read original · ~4 min brief

The bottom line

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The court struck down a key transport rule banning small PSVs because the government failed to consult the public and Parliament.

What this practically means

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Executive summary

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Two consolidated constitutional petitions by matatu Saccos and PSV operators challenged the enforcement of the Michuki Rules (Legal Notice 161 of 2003), the Murungaru Rules, the demand for digital speed limiters, the yellow band requirement and its non-enforcement against taxicabs, the Kenya Bureau of Standards' alleged failure over substandard safety belts, the removal of windshield tint, the BRT programme, and Legal Notice No. 179 of 2014 which barred licensing of PSVs carrying fewer than 25 passengers. The respondents maintained that the applicable laws were the Traffic Act, the Traffic Rules and Legal Notices 23 and 179 of 2014, and that compliance demands were for road safety. Korir J found the Michuki Rules no longer in existence or open to litigation, the Murungaru Rules not shown to be illegitimate, the speed limiter law not quashed, and the claims against KEBS and on the BRT unsupported by evidence. The decisive holding concerned Regulation 4 of Legal Notice No. 179 of 2014: the new provision banning sub-25-passenger PSVs was a substantive policy that required public participation and parliamentary approval under Section 11 of the Statutory Instruments Act. The respondents produced no evidence of public participation and wrongly shifted the burden of proof. The Regulation was declared unconstitutional, unlawful and null and void ab initio. All other prayers in both petitions failed, and as the matter was public interest litigation, each party was directed to bear its own costs.

Key legal issues

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01

Validity of Regulation 4 of Legal Notice No. 179 of 2014

Holding

The Regulation introducing the ban on licensing/renewal of PSVs with fewer than 25 passengers was unconstitutional and null and void ab initio for lack of public participation and non-laying before Parliament under Section 11 of the S.I.A.

Reasoning

The Court found the provision was entirely new and introduced a policy with far-reaching consequences on livelihoods, requiring public participation and parliamentary approval. The respondents produced no evidence of public participation and wrongly shifted the burden of proof to the petitioners. Failure to table the instrument within seven sitting days rendered it void under Section 11(4) of the S.I.A.

p. 16
02

Status of the Michuki and Murungaru Rules

Holding

The Michuki Rules are no longer open for litigation or in force; the Murungaru Rules, their successor, were not shown to be illegitimate, so no blanket prohibition against enforcement could issue.

Reasoning

The 2004 judgment by Ojwang J gave six months to amend Legal Notice 161 of 2003; the respondents asserted the Murungaru Rules were enacted within that period. The petitioners' claim of a stay in JR No. 1145 of 2005 was unprosecuted for over fifteen years. Any charge based on a non-existent law can be challenged before the trial court under Section 89(5) of the Criminal Procedure Code.

p. 15
03

Speed limiters

Holding

The 2014 judgment only rejected prescription of brands of speed governors, not the standards; the law requiring speed limiters in PSVs was not quashed.

Reasoning

A reading of the judgment in Nairobi HC JR No. 234 of 2014 showed the court rejected prescription of brands rather than standards. A generalized order against installation of speed limiters could not issue.

p. 15
04

Claim against Kenya Bureau of Standards

Holding

Dismissed; special damages were neither pleaded nor proved and no evidence linked substandard belts to the 7th Respondent's failure.

Reasoning

The petitioners made generalized complaints without evidence of purchases, prices or losses. The applicable Kenya and East African standards for seat belts were established. The petitioners should first raise product quality issues with the 7th Respondent and sue only upon failure of its statutory mandate.

p. 16
05

BRT programme

Holding

Challenge failed; the petitioners made generalized complaints, conceded Section 100 of the Traffic Act allows such a system, and the BRT is still at conception stage.

Reasoning

The petitioners did not state exactly what constitutional violation was alleged. The respondents averred the BRT system is yet to be implemented and appropriate laws would be introduced in due course.

p. 16

Legal principles established

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  • Public participation is a mandatory requirement in the making of subsidiary legislation
  • The burden of proving public participation lies on the legislating body, not on the challenger
  • Failure to lay a statutory instrument before Parliament under Section 11(4) of the S.I.A. renders it null and void
  • A substantive new policy cannot be disguised as a mere amendment to evade parliamentary scrutiny

Court orders

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  1. 1.A declaration that Regulation 4 of Legal Notice No. 179 of 2014 is unconstitutional and unlawful and therefore null and void ab initio
  2. 2.Each party to meet its own costs of the proceedings
Jurisdiction invoked
Articles 10, 22, 23, 258 and 165 of the Constitution (original constitutional petition jurisdiction of the High Court)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Latema Sacco & 30 others v National Transport & Safety Authority & 7 others (with Madiwa Matatu Owners Sacco Society Ltd & 23 others v National Transport & Safety Authority & 2 others)", Case Analysis (2020). Petition No. 440 of 2018 (Consolidated with Petition No. 1 of 2019). Source: 

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.