Court declines to suspend alcoblow use

Traffic Police Commandant Samuel Kimaru (right) and other traffic police officers use Alcoblow machine to test the amount of alcohol consumed by drivers along Mombasa road. The court has declined to issue temporary orders stopping the use of the breathalyser. PHOTO/JEFF ANGOTE

What you need to know:

  • Lady Justice Mumbi Ngugi said she can’t grant orders suspending the use of Alcoblow until she hears the main application
  • Lawyer Imanyara also submitted that the rules violate the rights of drivers because police only rely on evidence by the suspect.

Motorists driving under the influence of alcohol are still at risk of being arrested after the High Court declined to stop the use of the breathalyser to curb drink driving.

Lady Justice Mumbi Ngugi said she can’t grant orders suspending the use of Alcoblow until she hears the main application challenging the use of the breathalyser which has resulted to many drunk drivers being charged and fined up to Sh100,000.

“My inclination is alive to the implications of the orders being sought given that the right of a living person is not more than the rights of a dead person. In the circumstances, I will not grant the orders sought until the hearing of the main application,” said Judge Ngugi.

She also allowed Pottermark Limited, the company distributing the Alcoblow gadget used to detect the level of alcohol a driver has consumed, to be enjoined in the suit as interested party.

A driver, Mr Richard Dickson Ogendo, had filed the case seeking temporary orders suspending the use of Alcoblow until his petition is heard and determined.

He argued through lawyer Gitobu Imanyara that the continued use of the breathalyser was a breach of drivers’ right to dignity and should be declared unconstitutional.

The Attorney General however through state counsel Mwangi Njoroge opposed the orders sought arguing that the legislative Act giving rise to the use of Alcoblow has been in force for over three years and which do not warrant any interim injunction.

“The law has been in force for several years and it will not be fair to stop what has been in place. Drunk driving is a very serious offence, the court need to weight the balance of probability between the right to life and the right of a drunk driver,” said Njoroge.

Mr Ogendo wanted the use of Alcoblow stopped arguing that it is unlawful because the rules governing its use were not tabled in Parliament as required by law and that there was no public participation in its passage.

“The rules do not provide for the disposable mouthpieces to be handed over to the person on whom it has been used, hence the chances for their re-use are not eliminated,” said Ogendo.

Lawyer Imanyara also submitted that the rules violate the rights of drivers because police only rely on evidence by the suspect.

“It is clear that the said regulations depend for their efficacy on evidence obtained from the driver under the 'breath test’ given by the driver. However, we are saying that every accused person has the right to a fair trial, which includes the right to refuse to give self-incriminating evidence, “ said Imanyara.

The Government in 2005 introduced the use of alcoblow as a result of many deaths and accidents. It was however outlawed on hygienic grounds by the High Court in January 2006.

Later in 2011, the then Minister of Transport Amos Kimunya published the Traffic (Breathalyzer) Rules, 2011. The Rules remained dormant until early this year when the Kenya Police acting jointly with the National Transport and Safety Authority (NTSA) started its implementation.

The offence of drunk driving carries a fine not exceeding Sh100, 000 or imprisonment for a term not exceeding two years.

The case is scheduled for hearing on March 10.