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Court declines to give order stopping Alcoblow use

07 March 2014, 18:10 William Korir

Nairobi - A judge has declined to grant orders to stop the use of breathalyser or Alcoblow on drunk drivers for the second time.

High 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.

“In 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.

Last 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.

Mr 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.

Mr 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. 

Through 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.

According 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.

Breathalyzer 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.

The 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. 

Lady Justice Mumbi Ngugi first declined to suspend the use after a motorist sued the AG and the NTSA.

Mr Richard Ogendo through lawyer Gitobu Imanyara wants the breathalyzer rules abolished, as they violate and are inconsistent with the Constitution.

He claims breathalyzer rules have not been tabled before the National Assembly for interpretation.

The case will be heard on March 11.

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