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Kimaiyo ban on tinted windows illegal: High Court

11 July 2014, 21:35 Millicent Kawii

Nairobi - Private motorists with tinted windows will no longer have to drive with fear of being impounded for breaking any traffic offence.


This is after High Court judge George Odunga quashed Inspector General of Police David Kimaiyo’s May 13 directive that motorists with tinted windows were to be impounded.


Although Justice Odunga had temporarily stopped Kimaiyo’s directive on May 20 and granted a reprieve to private motorists, he said yesterday that the order was illegal, irrational as well as a procedural impropriety.


“Whoever deals with regulations must fully understand the law and have a legal basis so as not to act with unreasonableness or unfairly, contrary to this is an illegality, irrationationality and a procedural impropriety,” said Justice Odunga.


The judge said that although the directive might have been issued due to the high spate of insecurity in the country recently, it was against the law as public vehicles are the only ones required not to have tinted windows even if the Transport ministry was required to ensure security for all road users.


While pointing a finger to the National Transport and Safety Authority, (NTSA) and the transport Cabinet Secretary, Justice Odunga said such bodies mandated to make any regulations must do so in accordance with the law and not use executive powers to influence enforcement of any law.


“Authorities must operate within law not executive exercise, even the ‘excutive’ oughts’ to observe the same in good faith, not influenced or misdirected,” said Justice Odunga.


With regards to the impounding of private vehicles with tinted windows, it was meant to be a punitive measure in an attempt to secure the country and likened this to a fatal remedy.


Motorist Akitch Okola had sued the Inspector General of Police over this tinted windows directive claiming that the law only prohibits PSVs from having tinted windows and that the order infringes on rights of private vehicle owners.


Traffic rules 1953 at Rule 54A states that ‘a person shall not drive or operate a PSV that is fitted with tinted windows or tinted windscreen’.


He had further argued that that law exclusively prohibits PSV from the use of tinted windows and in this case tinted means shaded, coloured or treated in a similar manner so that the persons or objects inside are not ordinarily seen clearly from outside.


“Natural legislation is questioned here, the directive for impounding all vehicles without specifications was aimed at amending the Traffic laws although without the right power, I hereby quash that  directive  and I also prohibit impounding of tinted vehicles or effecting any punishment with regards to the same,” the judge ruled.

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