Decision

Decision for Nyanza Express Transport and Training Ltd

Published 8 March 2024

0.1 WESTERN TRAFFIC AREA

1. NYANZA EXPRESS TRANSPORT AND TRAINING LTD OH2005035

2. PAUL MBOYA – TRANSPORT MANAGER

3. AT A PUBLIC INQUIRY IN BRISTOL 16 JANUARY 2024

4. BACKGROUND

Nyanza Express Transport & Training Ltd is the holder of a standard national operator’s licence authorised for three vehicles and three trailers from an operating centre at The Dairy Yard, Frampton Cotterell, Bristol. Three vehicles are shown as in possession. The sole director and the transport manager is Paul Mboya. The licence was granted on 22 May 2018.

The operator and transport manager were called to a public inquiry in Bristol on 5 April 2022. That was following unsatisfactory reports from DVSA concerning both maintenance and traffic matters and following a prohibition notice issued in 2020 for an insecure load. I concluded the matter at that time by issuing a formal warning and recording undertakings for inspection frequency, roller brake testing and a systems compliance audit to be submitted by the end of November 2022. That deadline was subsequently extended to March 2023.

I was made aware of the apparent failure to supply the audit and of a further DVSA maintenance investigation that again identified major shortcomings along with potential fraud. I was told that Mr Mboya had failed to respond to the DVSA Examiner. I proposed to revoke the licence by way of a letter dated 8 August 2023. This generated a prompt response from Mr Mboya and the audit report was submitted by the end of that month. It is Mr Mboya’s position that the report had been submitted on 2 April 2023 and there is evidence to support that position. A public inquiry was requested.

The audit noted a number of shortcomings with administration and documentation, with slipped inspections and a lack of roller brake testing. The undertakings given at the inquiry in 2022 had not been complied with.

DVSA Vehicle Examiner Gary Ford provided a maintenance investigation visit report produced from a visit on 24 May 2023. Mr Ford used more straightforward words to describe similar shortcomings to those found by the auditor some seven months earlier “The operator’s maintenance paperwork is an absolute shambles”. Mr Ford also recorded fraud: “There are PMI records for the same vehicle/trailer that have been duplicated (with the same identical faults) but with date changes, also date format shown on RBT print outs are inconsistent with correct format/font size and type”. Examples were included.

There were other shortcomings and I called both operator and transport manager to public inquiry. That inquiry was originally listed for 25 October 2023. At Mr Mboya’s request, it was adjourned until 16 January 2024.

5. THE PUBLIC INQUIRY

Mr Mboya attended the public inquiry unrepresented. A bundle of documents was provided in advance. It was readily apparent how VE Ford came to his conclusion with respect to the maintenance paperwork and it took me considerable time to sort documents into any usable order. I was unable to make any sense of the tachograph documentation. I confirmed that Mr Mboya was aware of the potential outcome from the inquiry and content to continue unrepresented.

Proceedings were recorded and a transcript can be made available. In writing this decision, I have both referred to my written note and listened to the recording.

Mr Mboya told me that his business was three vehicles on general haulage, two were running at the moment.

Finances were satisfied as a preliminary matter.

I noted that the operator’s evidence bundle included documents back to 2018 with no particular order. Mr Mboya accepted that his “record keeping was a bit of a mess”. I noted that, for vehicle KT15VNW, I could only find safety inspection reports for 15 January, 26 April and 9 June 2023. Mr Mboya told me that he had more records and he thought that the Vehicle Examiner would have sent them through to me.

For SV16KZL, I could only find 25 April, 6 June and 16 August. Mr Mboya could provide more if it was required. I reminded him that the documents should have been submitted fourteen days before the inquiry. I asked about the vehicle’s MOT failure in October 2023 for no brake effort on either wheel on the middle axle. Mr Mboya told me that it was a fault with the roller brake tester and it had passed with no work done.

I took Mr Mboya to pages 58, 59 and 60 of my bundle and asked why the three inspection reports exhibited seemed to be identical apart from the date. Mr Mboya accepted that was the case. I asked how that came about. It had been photocopied and dates changed. He had been panicking and he asked a gentleman, Kyle Jones, to take a look and he had done that.

I noted that trailer with fleet number C280 had roller brake tests dated 24 June and 30 July 2022 which were entirely identical, even down to the tests having been conducted at 09:38 and all the brake efforts and measured axle weights being the same. The only difference was the dates. Mr Mboya told me that the same thing had happened, they had been photocopied and dates altered.

Mr Mboya told me that the vehicles had been inspected every eight weeks, but inconsistently. There was paperwork for eight-week inspections but a lot of gaps in between.

I noted that a driver appeared to be self-employed. That was accepted.

I explained that the operator had been requested to submit tachograph analysis evidence but I had received only some fairly random printouts. Mr Mboya offered me access to Tachomaster on an app. I declined, noting that the directions had required evidence to be submitted fourteen days in advance.

Revocation of the licence would be the end of the business and create major issues for Mr Mboya personally. Vehicles were still on finance and there was a bounce-back loan. Disqualification as an operator would impact on him negatively. He wanted to be in the industry. He had not set out to do the things he had done. There had been outside pressures and illness. He wanted to just operate one vehicle. He would resit the transport manager examination. Things had just gone downhill. He would appoint an external transport manager.

6. FINDINGS OF FACT

The facts are largely undisputed. Vehicles had not been inspected every eight weeks. Mr Mboya accepted that there had been large gaps such that I must conclude that all the relevant inspections had been included in his bundle of evidence. Each vehicle had been inspected just three times in a year, possibly four if I was to assume that there had been MOT preparation. Outside MOT, I could find no trace of laden roller brake testing. Many inspections had only a road test with no instrumented measurement of brake performance at all. The undertakings upon which I relied in 2022 had not just been breached but almost ignored entirely. Sections 26(1)(e) and (f) are made out. I attach particular weight to the latter which refers to breaches of undertakings given to me personally at a public inquiry. It was only because I believed what I had been told by Mr Mboya in April 2022 that I allowed the licence to continue. Mr Mboya had been put on notice by the auditor in October 2022 that the undertakings were being breached but he carried on regardless.

But it is worse than that. Facing a DVSA inspection, Mr Mboya turned to a friend who helped him create entirely false documents to try to hide the lack of inspections and brake tests. They were very amateur documents unlikely to fool anyone but that does not diminish the seriousness of their production, presentation to DVSA and inclusion in the operator’s public inquiry evidence bundle.

The operator failed to comply with the public inquiry directions to produce compliance documents, a list of which was clearly set out. As a result, I can make no assessment of systems for complying with drivers’ hours or working time rules. I note the lack of cooperation with the tribunal.

So is all this about just “paperwork”? No. The encounter report shows a prohibition rate of 41% from seventeen encounters. DVSA’s “commercial vehicle fleet compliance checks, 2018 – 2020” shows an average prohibition rate of 12.8% so this operator’s vehicles are significantly more dangerous than the norm. I look at some of the defects found. There are two prohibitions for tyre wear, one below the legal limit and another so worn that the base of the tread could not be distinguished. There are immediate prohibitions for headlamps and indicators and repeated failings with respect to load security. Vehicles and trailers have clearly not been kept fit and serviceable.

I didn’t get to see tachograph management systems but I note that £700 worth of fixed penalty notices issued to this operator for drivers hours offences, £400 of which were issued to Mr Mboya personally as a driver.

As a transport manager, Mr Mboya’s “paperwork”, also known as management systems, is completely missing. He has not exercised continuous and effective control over this operation. He admits large gaps in inspection frequencies. Undertakings freely given have been largely ignored. In seeking to hide that, he has falsified records and failed to cooperate with the tribunal process. The only positive I can find is that he openly admitted these failings in public inquiry. He himself has incurred drivers’ hours fixed penalty notices and a £200 fine as a driver for a bald tyre. Last minute honesty is not enough to offset any of the negatives. Having trusted him in 2022, that trust was almost immediately broken and I am entirely unable to trust him now. His good repute as transport manager is lost and the falsifications mean that an extended period of disqualification from that role is appropriate. Section 27(1)(a) is made out in relation to professional competence as is Section 27(1)(b) in relation to continuous and effective management.

When the transport manager is the sole director, it is difficult to distinguish between the good repute of each. In this case, as operator, he has allowed matters to degrade to the point where he felt compelled to produce and to present false evidence, first to DVSA and then to me. That level of dishonesty means that there can be no trust between regulator and operator. The on-road non-compliance further supports a finding that the operator is no longer of good repute and Section 27(1)(a) is further made out.

In twelve years as a Traffic Commissioner, I can count on the fingers of one hand the number of times I have come across falsified roller brake test printouts. I may need both hands to count the number of occasions of falsified maintenance records. But such fraudulent activity is rare within this important industry and its inclusion as a feature here supports a period of disqualification as an operator. In setting the period, I do have regard to Mr Mboya’s difficult personal circumstances and I adopt the lower end of the scale.  

7. DECISIONS

Paul Mboya has lost his good repute as transport manager. He is disqualified from acting as such for a period of three years from 24 February 2024.

Pursuant to separate findings of loss of good repute and loss of professional competence, the licence is revoked in line with Section 27(1)(a).

Pursuant to a finding of a serious breach of undertakings, the licence is revoked inline with Section 26(1)(f).

Pursuant to Section 28, Paul Mboya and Nyanza Express Transport and Training Ltd are both disqualified from holding or applying for an operator’s licence for a period of one year from 24 February 2024.

To allow for an orderly winding down, revocation will take effect from 23:59 hours, 24 February 2024.

Kevin Rooney

Traffic Commissioner

24 January 2024