Alcoblow test illegal on Kenyan road, court declares

In a ruling made by judges GBM Kariuki, Fatuma Sichale and Festus Azangalala the court declared that it was illegal to use the test to arrest drivers.

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The Court of Appeal on Friday ruled in favour of two Nairobi bar owners protesting against the use of breathalyser test to arrest drunk drivers on Kenyan roads.

In a ruling made by judges GBM Kariuki, Fatuma Sichale and Festus Azangalala, the court declared that it was illegal to use the test to arrest drivers.

According to the judges, the law that introduced the use of breathalysers is inconsistent with the Traffic Act.

The judges noted that breathalysers rules are incapable of creating an offence, hence no one can be charged on their results.

Richard Ogendo and Kariuki Ruitha had sued the Transport Cabinet secretary, National Transport and Safety Authority, the Inspector-General of Police, Director of Public Prosecutions and the Attorney-General among others.

The 3-judge bench, however, ordered the sued parties to act immediately and find a remedy for the problem as the ruling would pose great danger Kenyan roads.

They also directed Parliament to review the law and ensure that it was consistent.

In response to the order, NTSA stated that it will review the court ruling before announcing the next move to curb drunk drivers.

In 2014,  Ruthia – proprietor of Reminisce Sports Bar and Grill – moved to court to restrain the police from enforcing or implementing the Traffic (breathalyser) Rules, 2011 at road blocks that have not been gazetted by the Inspector General of Police.

“The Traffic Breathalyser Rules are unconstitutional, inter-alia because they provide for criminal offences that have not been created by Parliament.

“The Breathalyser Rules criminalise the consumption of alcohol beyond the prescribed limit despite the fact that under Section 44 of the Traffic Act, alcohol consumption is only a crime when it intoxicates a motorist to an extent that he or she is unable to maintain proper control of the vehicle,” Ruthia urged.

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