15 February 2014

Kenya: Breathalyser Use to Continue

ATTEMPTS by a motorist to temporarily stop the use of breathalysers was rejected for the second time yesterday. High Court Judge Mumbi Ngugi declined to issue temporary orders against the National Transport and Safety Authority saying she would rather hear arguments from all parties before granting any orders.

Mumbi further allowed Pottermark Enterprises, the company that supplies the gadgets, to participate in the matter as an interested party.

The company sought to be joined as a party in the suit saying it will be directly affected by the orders to be issued by court.

The judge directed parties in the case to file and serve their responses within 21 days and return for hearing on March 10.

The case has been filed by Richard Dickson Ogendo, who is against the use of breathalysers, on grounds that they are unhygienic and unconstitutional.

Through lawyer Gitobu Imanyara, Ogendo says the use of the breathalyser is unlawful because the rules governing its use were never tabled in Parliament as required by law. He says he has perused the Parliamentary Hansard, in which debates of the National Assembly, which also shows dates when papers are put before the National Assembly are recorded.

Ogendo says he has not found any evidence that the rules were tabled before the National Assembly as required. "The said Traffic (Breathalyser) Rules are contained in Legal Notice No 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," reads part of his document.

In January 2006, the High Court suspended the use of the gadgets after motorists complained that their rights were being breached and exposed to health risks. But the Ministry of Transport reintroduced the breathalysers last December to curb rising road accidents.

Any motorist caught driving while he or she has exceeded the limits of the required alcohol amount risks a fine of Sh100,000 or two years in jail or both.

Ogendo argues that the Legal Notice No 138 of 2011 has never been tabled before the National Assembly or its draft and is therefore invalid.

He says the rules as published do not provide for the disposable mouth gadgets to be handed over to another person hence the chances for their re-use.

Ogendo is seeking a declaration that the Traffic Rules, published in the Kenya Gazette under Legal Notice No 138 of 2011 dated September 27, 2011, were null and void.

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