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Tide turns on government over night travel ban

14 March 2014, 21:29 William Korir

Nairobi - The government is now on the spot regarding the night travel ban after a court ruled that it was indeed unrealistic to have the ban in place.

The government had insisted that the ban on night travel would lead to a decrease in the number of road accidents reported on Kenyan roads.

And in a report by the National Highways Authority, the number of accidents is said to have reduced in the purported period.

Analysts though, say that the fact the government strong armed public transport providers into stopping night travel is finally going against them.

The case in point was not the fact that the new rule was not done in good faith, but rather in the wrong manner.

Judge Odunga in a ruling Friday said that the imposed laws and fines to public service vehicle owners for contravening the new night travel laws is invalid.

“The Regulation is illegal to the extent that the National Transport and Safety Authority regulations have the effect of cancelling the bus owners’ valid licenses issued by the Transport Licensing board are invalid. However, considering the immediate consequences of this declaration on the safety of the public that relies on the public transport, the declaration is hereby suspended to enable relevant state organs to formulate legislative and policy measures,” ruled the judge.

“State organs are hereby directed to immediately initiate the process of meaningful engagement involving the public with a view of ensuring appropriate legislative and policy measures and instruments are put in place to ensure that both the safety and dignity of persons using public transport are ensured and upheld,” Justice Odunga said.

The government has insisted that the ban will only be removed for specific bus operators who will have met stringent measures to reduce accidents.

But bus owners say that the move is both illegal and as a result of the negligence on the government's side, a point all to obvious to judge Odunga.

" The government must take responsibility for the state of the roads in the country, not blame operators for accidents, he added.

Kenya Country Bus owners’ Association and eight transport service Companies had moved to court early this year to challenge a Gazette Notice by the National Transport and Safety Authority (NTSA) banning night travel among buses and other Public Service Vehicles.

Mbukinya Bus Services, Crown Bus Service, Kampala Coaches, Traticom Enterprises, Ugwe Bus Services, Trisha Collections, Panther Travels and Neno Courier Services alleged that no opportunity was accorded to them to demonstrate that indeed when the new rules were enforced, they were validly licensed to conduct and execute lawful night travel as PSV operators.

They claimed that the Transport Cabinet Secretary and the Traffic Commandant orally declared that all night travel by PSVs was cancelled yet none of them was invited to show cause that they had failed to meet any prescription authorizing them to conduct night travel by their busses.

They further added that their current licenses according to Section 61(1) of the National Transport and Authority Act, which are duly issued by the Transport and Licensing Board (TLB) are still operative to date, and clearly demonstrate that their busses are permitted under the law to travel at night yet the NTSA Board has all along been aware and has instead acted arbitrarily.

They also alleged that that the transport ministry and the state department of transport harshly and draconically shut their ears to their cries and remained adamant notwithstanding their current legal compliance and authorized timetables that the transport service companies have to stick to day time travel indefinitely.

They argue that none of their licenses have been suspended, revoked or nullified to date and given chance then they would have demonstrated that they hold valid TLB licenses duly recognized as valid and lawfully issued by a competent authority.

Starlingrad Limited, Sabrin Bus Services, Kukena Sacco Limited and Nairobi Western Sacco Limited had sought an order to halt the ban that their case was dismissed on grounds of insufficient evidence and were asked to join bus owners to pursue their quest to halt the 6pm and 6am rule on public transport vehicles.

Justice Odunga also said that the prescription of the brands of speed governor rather than the standards was a departure from what was expected of the Cabinet Secretary and hence unlawful.

And so is the prescription of a 60 day notice to the government to ensure a better interpratation of the law is arrived at a sign of a change in fortunes?

The arguments seem to say so.

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