Flashy lights on matatus illegal, High Court rules

The High Court has dismissed a case that sought to overturn an order by the National Police Service (NPS) seeking to impound vehicles with flashy lights in the country.

Justice Mugure Thande said provisions in the Traffic Act do not include modified lights, unauthorised sirens as well as unauthorised red and blue lights.

The case filed by Ezekiel Osewe sought to have the order issued by NPS on October 28, 2022, suspended.

Parties sued

Osewe sued the NPS, Attorney General (AG) and the National Transport and Safety Authority, with the Kenya Humans Rights Commission listed as an interested party.

He said the move by NPS saw matatu owners withdraw their vehicles from roads in protest and this ended up inconveniencing Kenyans who depend on PSVs for their transport needs.

“It is the petitioner’s case that the issuance of the blanket directive to charge, the first respondent has usurped the power of the Director of Public Prosecutions (DPP) under Article 157 of the Constitution,” noted Justice Thande.

Osewe argued that Section 55 of the Traffic Act only outlaws lights that can cause accidents and does not prohibit the use of lights so long as they comply with the law.

New rules?

He told court that the move by NPS resulted in the creation of new rules yet that is a preserve of the Minister for Transport.

“Further the lights installed are strategically placed to indicate the length and breadth of vehicles at night to assist other road users,” he said.

According to Osewe, by making the pronouncement, NPS violated Article 10 since it did not involve stakeholders in the matatu sector and the public.

According to NPS, all traffic offences cases are investigated by the police and charges are preferred by the DPP, disputing claim that the prosecution powers of the latter had been usurped.

Boniface Ojalah, on behalf of NPS and AG, said Section 55 refers to the installation of additional unprescribed lights.

He denied that implementation of Section 55 affected matatu fares, adding that vehicles are supposed to comply with it before beginning operations.

Ojalah added that the claim by Osewe that its implementation would kill the matatu culture was not supported by any data.

“The 1st (NPS) and 2nd (AG) respondents contend that the petition is incompetent, misconceived and speculative as there is no evidence of any breach or violation by them of the petitioner’s rights and fundamental freedoms,” said Ojalah.

Osewe said the directive is too broad and ambiguous and was capable of attracting different interpretations since it was difficult to understand which lights are prohibited considering that all vehicles come from the manufacturer with red lights.

No proof

Justice Thande said the petition did not meet the threshold to be considered a constitutional petition since Osewe did not prove how NPS violated the Constitution.

“The petition provides little or no particulars as to the allegations and the manner in which the respondents are responsible for the alleged infringements,” she said.

She added that NPS was within its powers to issue the directive and therefore did not need to have consultations with matatu stakeholders or the public.

“The contention by the petitioner in this regard is thus without merit,” she ruled.