Independent agencies will be licensed to conduct assessment and conformity tests on passenger vehicle body construction, and not the bus manufacturers themselves.
The move to enforce new standards was prompted by rising road fatalities, many of which are linked to poor workmanship and unsafe bus body construction.
The Transport Licencing Appeals Board (TLAB) directed the National Transport and Safety Authority (NTSA) to forthwith ensure that no motor vehicle manufacturer conducts conformity assessments.
“We find and hold that it is irregular for a motor vehicle manufacturer to conduct conformity assessments on its own vehicles either directly or through a proxy arrangement as evident in the foregoing case. To be meaningful, compliance checks must be undertaken impartially and independently by a neutral agency,” TLAB ruled.
The Board established that the Kenya Association of Bus Manufacturers (KABM) was both a body builder and also the assessor, making the whole conformity assessment exercise an in-house job that may compromise integrity, quality, impartiality and independence of reporting.
NTSA issues two licenses to bus manufacturers; the Bus Builders License and the Conformity Assessor of passenger vehicle body construction.
“The Respondent shall forthwith ensure that no motor vehicle manufacturer conducts conformity assessments or performs any compliance checks on its own vehicles either directly or through a proxy arrangement whatsoever,” the Board chair, Dr. Adrian Kamotho ruled on March 13, 2024.
The standards are meant to ensure that poor structural designs do not crush passengers in case of an accident, and that body builders embrace best practices such as strong seat anchorage and the use of lighter materials for seat handles.
TLAB noted that KABM Services Ltd is wholly owned by KABM members and that the two entities are served by the same Managing Director (MD) in the same office and same staff.
“This the appellant proffers, makes the whole conformity assessment exercise an in-house job that may compromise integrity, quality, impartiality and independence of reporting,” the ruling reads.
Mwenda & Associates, an accredited entity for conformity and also a designated conformity assessor, had gone to court to compel NTSA to act on the conflict of interest.
They faulted the licensing approach which supported in-house conformity assessment by KABM Services Ltd to KABM members who are all bus body builders to the extent that it deters competition.
They also accused NTSA of aiding monopolistic practices in conformity assessment services to local bus body building, adding that NTSA had involved the Managing Director of KABM Services Ltd in activities that put him directly into conflict of interest status since his organization is an accredited conformity assessor and designated by NTSA.
“This is in light of the potential of conflict of interest that may arise given that the membership of the association comprises PSV bus builders. It is therefore not in doubt that the body builders are conducting their own conformity assessments through their own association,” the ruling states.
A concern was also raised that without independence, objectivity in conformity assessment may be easily compromised and the safety of the public put to severe jeopardy.
The chairman noted that to be meaningful, compliance checks must be undertaken impartially and independently by a neutral agency.
Kamotho while reading the decision in Court emphasized that the Respondent must at all times pay fidelity to the dictates of section 4(1)(d) of the NTSA Act, commanding it to ensure the provision of safe, reliable and efficient road transport services.
The danger posed by non-compliant vehicle features is plain. Anything that potentially compromises safety within the transport space must be nipped in the bud whenever sighted,” it added.
The Board said the subsisting conformity assessment model is flawed, tainted with systemic inbreeding and runs counter to the imperatives of good governance enunciated at Article 10 of the Constitution.
Board CEO, Dr. Andrew Kimani was later independently cited and elaborated that the Judgement was monumental in that it ensured that a player shall not be both a referee and coach in the matter at hand.
He held that NTSA was now obligated to ensure that other third parties are licensed independent from the Bus Manufacturers to ensure the KS 372:2019 are well and efficiently maintained, regulated and thus accountable
This decision is jurisprudential he said.
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