Court declines to stop use of Alcoblow, case urgent

By ISAIAH LUCHELI                                     

Kenya: Motorists who like to drink will have to contend with the continued use of breathalysers (Alcoblow) after the High Court declined to give orders restraining their use.

High Court Judge Mumbi Ngugi refused to issue orders that had been sought by a motorist, Richard Ogendo, who had wanted the court to suspend the use of breathalysers until the suit he had filed is heard and determined.

The judge, however, certified the matter as urgent and directed Ogendo’s lawyer, Gitobu Imanyara, to serve the Attorney General and the National Transport and Safety Authority.

The matter will be heard tomorrow.

Ogendo who is seeking to have the breathalyser rules abolished, submitted that the rules which came into force in 2011 violated and were inconsistent with the provisions of the Constitution.

“The said Traffic (Breathalyser) Rules are contained in Legal Notice number 138 of 2011, which is void as it has not been tabled before the National Assembly as is required under the Interpretation and General Provisions Act,” he submitted through his lawyer.

Imanyara who added that there are no provisions in the Traffic Act declaring an intention not to table the regulations in Parliament, noted that even if there was, such a section would be contrary to public policy and interest.

 “The petitioner has perused the Hansard in which dated debates of the National Assembly are recorded and has not found any evidence of the rules or their drafts having been tabled before the National Assembly,” submitted Imanyara.

He added that the petitioner therefore avers that Legal Notice Number 138 of 2011 (or its draft) has never been tabled before the National Assembly and was therefore invalid.

The petitioner noted the manner in which the rules have been enforced, including ordering a driver out of a car by force and without regard to sensitivities of gender, and calling the media to be present to publicly record the usage of the breathalyser, which he termed as unconstitutional.