The High Court has temporarily suspended the ban imposed on night travel.
Justice Enoch Chacha Mwita on Thursday barred the National Transport and Safety Authority (NTSA) and the National Police Service from effecting the imposed night travel ban.
“Pending the hearing and determination of this case, the court is pleased to suspend NTSA and the police service’s undated as well as unsigned joint press statement which suspended night travel for all long distance Public Service Vehicles from December 31, 2017,” the judge said.
The judge issued the order in the case filed by activist Okiya Omtatah who has sued NTSA, the National Police Service and the Attorney General.
Mr Omtatah argued that the ban has gravely affected travelling using public means as well as businesses that depend on it.
He faulted NTSA and the National Police Service for issuing the night travel ban in a statement which he describes as a kneejerk reaction to the menace of road accidents on Kenyan roads.
He also faulted the government for failing to take any measures to cushion PSV operators and other affected businesses from losses incurred as a result of the ban.
He also pointed out that there are no provisions in law which support the policy banning night travel for long distance travellers.
“The impugned press statement banning night travel is void for contravening clear provisions of the Constitution and the Fair Administrative Action Act,” said Mr Omtatah.
In the case documents, he claimed that there are no scientific findings showing that road safety and long distance night travel are mutually exclusive.
He argued that NTSA and the police have also created criminal offences and imposed financial burdens through unscrutinised measures that ride into the law on the back of the impugned ban on night travel.
The activist alleged that the sued parties have acted unreasonably, discriminatorily and unlawfully to issue the ban while pleading with the judge to issue the temporary order.
He also alleged that there have been no special arrangements made for security and comfort for long distance passengers including little children who are forced to spend nights in the cold in parked vehicles at trading centres as a result of acting in conformity with the arbitrary and unreasonable travel timelines imposed.
NTSA issued a press statement on December 31, 2017 following a fatal accident at Migaa, along the Nakuru-Eldoret High way in which more than 30 people died.
The authority had directed that all travel must be scheduled between 6am to 7pm.
According to Mr Omtatah, NTSA and the police service have not yet submitted their reports before Parliament for scrutiny so as to enable such a legislation.
“If Court does not interdict the impugned statutory instrument and insist that the proper procedure must be followed in the making of regulations, Kenya’s constitutional and legal framework concerning statutory instruments, due process, rule of law as well as the constitutionalism in general, will be overthrown,” he said.
Justice Mwita certified the case as urgent and directed that the matter be heard on February 12.