The High Court has declined to grant orders suspending the use of breathalysers in the crackdown against drunk-driving.
Justice Mumbi Ngugi Instead certified the case filed by a motorist as urgent and directed it be served on Attorney General Githu Muigai and the National Transport and Safety Authority (NTSA) immediately.
The judge rejected a request by Richard Dickson Ogendo to temporarily halt the use of the breathalyser but directed parties to go back to court for hearing on Friday, February 14.
Ogendo moved to court seeking to abolish the use of breathalysers on grounds that it is unconstitutional and should therefore be outlawed.
Through lawyer Gitobu Imanyara, Ogendo said that the use of the breathalyzer is unlawful because the rules governing its use were never tabled in Parliament as required by law.
The lawyer said he perused the Parliamentary Hansard in which debates of the National Assembly which also shows dates when papers are laid before the National Assembly are recorded, and he did not find any evidence that the Rules were tabled before the National Assembly.
“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 a 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 were exposed to health risks.
Ministry of Transport reintroduced the breathalysers last December to curb rising road accidents. Any motorist caught drunk while driving risks a fine of Sh100,000, 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 was 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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