, NAIROBI, Kenya, Mar 3 – A fresh case challenging the use of the alcohol breathalyser (Alcoblow) has been filed before the High Court in Nairobi.
The case by the Reminisce Sports Bar and Grill and its proprietor Kariuki Ruitha seeks to suspend implementation and use of the tester on motorists.
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.”
Ruitha also seeks to block the police subjecting motorists who have not been arrested on reasonable suspicion of a traffic offence to take the breath test.
The businessman wants 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.
The CS, he says cannot unilaterally prescribe the rules without public participation and research to confirm the alcohol tolerance levels of Kenyans in the various age brackets.
Ruitha claims that police have been enforcing the breathalyser rules through oppressive, extortionist, discriminatory methods and tactics in violation of motorists’ rights to human dignity.
“The subjection of a breath test to a motorist who has not been arrested for an alleged traffic offence on the basis of reasonable suspicion by a police officer in uniform is a violation of the right to privacy of the person enshrined in Article 31 of the Constitution,” he states.
On Valentines’ day justice Mumbi Ngugi declined to stop the use of the breathalyser pending hearing and determination of a case filed by a city motorist.
Justice Ngugi refused to suspend use of the gadget saying it has helped to reduce road accidents hence saving lives.
She added that the court must be given valid reasons in order to stop use of the gadget.
The case is coming up for hearing on March 10.