For close to two months, the National Transport and Safety Authority (NTSA) closed a portal used for licensing of driving schools, affecting the services of hundreds of institutions nationwide.
The shutdown also meant that driving schools could not renew licenses, could not obtain permits for driving school instructors, and could not be issued with Provisional Driving License application for driver trainees and book tests for instructors.
In doing so, the agency defended itself saying that it was complying with a court order, which suspended the Traffic (driving Schools, Driving Instructors and Driving licences) Rules, 2020.
But the institutions under the Kenya Driving Schools Association (KDSA) moved back to court and successfully argued for the reopening of the portal, saying that Sh3 billion investment portfolio was hurting with thousands losing jobs.
Before that, the Senate, which had endorsed the rules before being suspended by the High Court had summoned stakeholders for a meeting in Mombasa, with a view of fast-tracking the rules but at the same time, questioned the shutting down of the portal.
Solicitor General Kennedy Ogeto has also in an opinion asked NTSA to reopen the portal and move back to court and appeal against the judgement or seek an interpretation of Justice Anthony Mrima’s decision.
Efforts to come up with the regulations started in 2016 when NTSA shut down over 300 driving schools after a vetting exercise, in compliance with the requirements and conditions of licensing as stipulated in the Traffic (Driving Schools) Rules of 1971.
Then NTSA conducted the vetting in using an interagency task force comprising its officials, traffic police and the Ministry of Transport.
High Court judge in a decision in 2020 quashed the move to revoke the driving schools licenses stating that the exercise was unconstitutional.
The agency later started gathering views from stakeholders and came up with the rules, which were later challenged by KDSA as unconstitutional. Among the contentious rules, which KDSA pointed out, is penalties to be meted on those who break the rules and the move to take away examiners of driving instructors from the traffic police.
While suspending the rules in December, Justice Mrima ruled that a crucial step in the making of a subsidiary legislation was not properly undertaken, putting the validity of the rules to serious constitutional and legality tests. The judge reasoned that since transport is a shared function, the rules should have been subjected to scrutiny of both houses before being passed.
“Given the above state of affairs and in view of the scrutiny role imposed upon the Houses of Parliament, this court finds and holds that the Senate did not sufficiently scrutinise the impugned rules. The Senate also failed to satisfy itself that the impugned Rules were in compliance with Section 13 of the Instruments Act,” the Judge said.
The judge rejected the argument that there was no public participation noting that stakeholders sent memoranda to Parliament. He said it would be a waste of taxpayers’ money, to quash the rules, given that views were sought in 43 counties. The judge directed CS Transport to resubmit the Rules to Parliament in 14 days.
Following the shutdown, the association through lawyer Muguku Kimathi said 30,000 Kenyans employed by driving schools are staring at job losses unless the portal is reopened. “The portal was closed without notice or even an alternative,” he said.
Mr Kimathi claimed that over 1,200 driving school businesses were rendered redundant because of the shutdown. It was his argument that the officials of the agency misunderstood the judgment, adding that the best way should have been to head back to court for an interpretation.
Part of the rules were that NTSA should develop the curriculum for training and testing of drivers and driving instructors and all driving instruction should be in accordance with the approved curriculum. All driving schools were also required to renew the licenses.
A driving school is also required to have a reception area and waiting area, a management or administration office, a theory classroom with a minimum seating capacity of four students of which each has a space of at least one metre square, toilets for both men and women, at least one model town board per theory classroom in the design approved by the Authority, among other requirements.
