NAIROBI, Kenya, Mar 10 – Two cases seeking to stop the use of breathalysers (alcoblow) has been scheduled for hearing on Monday next week.
Justice Mumbi Ngugi directed parties involved to file their submissions and replies by the end of this week to facilitate the hearing.
Justice Ngugi maintained that the petitioners, Richard Ogendo and Kariuki Ruitha, must give the court valid reasons why use of the alcoblow should be stopped.
Ogendo and Ruitha want use of the breathalyser stopped on grounds that rules governing its use are unconstitutional and should be outlawed.
The case by Ruitha earlier this month was seeking to suspend implementation, use of the tester and block the police from subjecting motorists who have not been arrested on reasonable suspicion to take the test.
His lawyer Kibe Mungai told the High Court that Ruitha is seeking orders 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 businessman contends.
“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.”
The businessman wanted the orders issued pending determination of the case which he wants heard by more than one judge on grounds that it raises substantial questions of law.
Under the Traffic Act, Ruitha contends that Transport Cabinet Secretary has no power to prescribe the limits of alcohol consumption by motorist.
In his February petition, Ogendo contested that Legal Notice 138 of 2011, through which the breathalyser came into force, was never tabled before Parliament making the use of the alcoblow illegal.
“The petitioner has perused Parliamentary Hansard and has not found any evidence of the rules or their drafts having been tabled before the National Assembly,” the petitioner avers.
Ogendo also resurrected the hygiene argument that had the use of the alcoblow outlawed by the High Court in 2006.
“The rules as published do not provide for the disposable mouth piece to be handed over to the person in respect of whom they have been used and hence the chances for their re-use by another person are not eliminated,” Ogendo’s petition states.
He also took issue with the way the alcoblow had been implemented for the reason that drivers are forced out of their cars for testing and in some instances in the full glare of cameras.
On Valentine’s Day Justice Ngugi declined to grant an injunction on the use of the breathalysers pending hearing, saying that it has helped reduce road carnage.