Court declines to give order stopping Alcoblow use
07 March 2014, 18:10
Nairobi - A
judge has declined to grant orders to stop the use of breathalyser or Alcoblow on
drunk drivers for the second time.
Court judge Isaac Lenaola directed that since there are two cases seeking the
same orders challenging Alcoblow usage, they should both be placed before one
judge to determine on whether to grant the order to halt breathalyzer usage.
view of the other case on Alcoblow pending before another judge, let this
matter be placed before that judge for further direction on the interim orders
sought,” said judge Lenaola.
Friday, a Nairobi Langata estate bar owner sued the Transport Cabinet
Secretary, the Inspector General of Police, the Director of Public Prosecution,
the National Transport and Safety Authority and the Attorney General over the
use of breathylser.
Kariuki Ruitha argued that the sheer act of consuming alcohol has been made a
traffic offence irrespective of whether it has intoxicated the driver or
rendered one unable of having proper control of the vehicle.
Ruitha also argues that there is no provision in the Traffic Act that empowers
the Transport Cabinet Secretary to prescribe the maximum amount of alcohol that
a motorist may consume without committing a traffic offence.
lawyer Kibe Mungai, he claims that whilst Section 44 of the Traffic Act
criminalizes the driving of a motor vehicle under the influence of alcohol to
an extent that the driver has no proper control of the motor vehicle, Section
45 criminalizes consumption of any amount of alcohol by a driver of a public
service vehicle even though the consumption of alcohol alone by a private
motorist is not an offence.
to Ruitha the two rules are contradictory and simply imply the usage of a
breathylser to confirm which motorist should be arrested for violating the
prescribed alcohol limit as opposed to committing a traffic offence is
therefore unlawful under the Traffic Act and the Constitution.
rules were first legalized through a gazette notice in 2011 by a former
transport minister Amos Kimunya in Section 119 of the Traffic Act prescribing
the use of the device to measure the proportion of alcohol in a person’s blood
from a specimen of breath provided by the person.
rule made it an offence for a person to drive, attempt to drive or to be in
charge of a motor vehicle on a road or other public place if the person has
consumed alcohol in such quantity that the blood concentration in his body is
beyond the prescribed limit.
Justice Mumbi Ngugi first declined to suspend the use after a motorist sued the
AG and the NTSA.
Richard Ogendo through lawyer Gitobu Imanyara wants the breathalyzer rules
abolished, as they violate and are inconsistent with the Constitution.
claims breathalyzer rules have not been tabled before the National Assembly for
case will be heard on March 11.
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