A judge has refused to quash proposed regulations for the mandatory inspection of vehicles more than four years from the date of manufacture at a time interval to be determined by the transport sector regulator.
The Kenya Human Rights Commission wanted the regulations—Draft Motor Vehicle Inspection Regulations, 2023—voided on the grounds that they may have a huge financial impact on vehicle owners. It also claimed there was inadequate public participation.
However, Justice Lawrence Mugambi dismissed the petition since the regulations were not in force.
"These draft regulations are matters in progress. It has not crystallised into an actionable controversy that would warrant the intervention of this court. I find that the petition is barred by the doctrine of ripeness," said the judge.
Currently, the National Transport Safety Authority (NTSA) charges private car owners between Sh2,000 and Sh3,500 for inspection, depending on the engine capacity.
The proposed regulations were enacted by the NTSA following an amendment of the traffic laws in 2022 to get rid of unroadworthy vehicles.
The amendment allowed NTSA to inspect vehicles exceeding four years at its own pace and hire private entities to conduct the checks on its behalf.
According to the rights group, such delegation opens a door for abuse of power through improper issuance or refusal of granting inspection certificates by private entities.
Initially, the law provided that the checkups would be conducted by the Motor Vehicle Inspection Unit. Court papers indicate that the NTSA has a limited capacity for inspection as it has 17 motor vehicle inspection centres whose capacity is 1.2 million vehicles.
Petitioning the court to nullify the regulations, the Kenya Human Rights Commission stated that since the regulations allow privately-owned inspection centres to charge inspection fees on motor vehicle owners and issue inspection certificates, the same ought to have been considered as a money bill in Parliament in line with Article 114 of the Constitution.
By empowering NTSA to issue, suspend, and revoke licenses issued by the privately-owned vehicle inspection centers, the rights group contended that this was a threat to consumer protection.
However, Justice Mugambi dismissed the petition after finding that it was prematurely filed.
Regarding the alleged contravention of consumer rights, the judge said it was based on imaginations of what might occur in the future. Hence, it was not present factual controversy that the court could be able to determine.
The judge further observed that since the legal amendment was processed through Parliament, it was difficult to comprehend the petitioner's assertion that the NTSA wants to authorise third parties to carry out inspections on its behalf without a direct legal basis.
"The argument in my view is untenable. Parliament is the one that created NTSA by legislation and is still the body that has assigned it the functions and can thus give it the power to delegate," he ruled.
On the alleged lack of adequate public participation, the court noted that from evidence tabled by the National Assembly, there was an advertisement calling for public participation and responses were in fact received.
"This in itself is a confirmation that the public was notified and indeed participated in that process. The petitioner claims that the process of public participation was inadequate yet it does not say from what viewpoint; is it in terms of time given to submit the views or the quality of the participation itself?" observed the judge.
"The claims that there was inadequate public participation is made without pinpointing the specific factors evidencing the inadequacy of the public participation. I am persuaded the allegation is unsubstantiated. Indeed, it was specifically and effectively rebutted by the evidence of the National Assembly," he stated.
For its part, NTSA said that there had been a rise in the number of road accidents caused by unroadworthy motor vehicles. It noted that statistics showed that the majority of these accidents were caused by private vehicles which were ordinarily not inspected.
In addition, NTSA told the court that most of the private vehicles in Kenya were second-hand vehicles imported from Japan. As a consequence of these factors, it was resolved that private vehicles would also be included in the inspection administration.
To facilitate this process, the court heard that NTSA had to outsource inspection services in a joint venture with private bodies. This was informed by the NTSA’s limited capacity of having only 17 motor vehicle inspection centres whose capacity is 1.2 million vehicles, hence not sufficient.
