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March 21, 2018

Alcoblow use outlawed by Appeal Court, Ruitha wins

Drivers who were arrested by police and NTSA officers after failing alcoblow test at Nyali Bridge police check point on December 6th. Photo/file
Drivers who were arrested by police and NTSA officers after failing alcoblow test at Nyali Bridge police check point on December 6th. Photo/file

The Court of Appeal has said the use of breathalysers to charge drunk drivers in court is illegal.

A three-judge bench on Friday said the laws introduced by NTSA are inconsistent with the Traffic Act.

Appeal judges GBM Kariuki, Festus Azangalala and Fatuma Sichale ordered that they be taken back to Parliament for review.

The ruling means alcoblow can be used to measure levels of alcohol consumed but that police cannot charge anyone under the rules which established alcoblow.

The judges said anyone found drunk-driving should be charged under traffic laws, not alcoblow rules.

Rule 3( 1 ) of the breathalyser rules, they said, cannot be used to charge people because it is incapable of creating an offence.

The decision arose from an appeal by Kariuki Ruitha who owns Reminisce club on Lang’ata Road in Nairobi.

Ruitha, a Ngong resident with 99 per cent shareholding at the Bar, sued the state saying he had been a victim of the use of alcoblow.

He told the court that patrons leaving the club were regularly checked for alcohol consumption by police.

Ruitha was of the view that the introduction and use of alcoblow violated his rights because the constitution gives Kenyans the power to make lifestyle decisions, including how much alcohol to drink.

He said because of alcoblow, he has lost 80 per cent business forcing him to lay off 29 employees and 15 artistes.

The businessman said his customers were afraid of going to the bar because of the risk of getting arrested.

Ruitha challenged the validity of the law that brought into existence alcoblow saying it contravened his rights and the constitution.

In March 2014, a court ruled that two cases that sought to abolish the breathalysers be argued together.

Justice Mumbi Ngugi consolidated the first case filed by Richard Ogendo and the second one by Ruitha.

Pottermark Enterprises, the company that supplies the gadgets under the Alco-blow brand was also involved as an interested party.

On June 9, 2014 High Court judge David Majanja found that the transport ministry had powers to make rules, among them measures for enforcing traffic laws.

Majanja held that the rules were valid as the public was involved in their making.


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