[2009] KEHC 2889 (KLR)
The court found that the Kilifi Traffic Police, by detaining the applicant's motor vehicle and conditioning its release on payment of towing charges to a private entity, acted outside the scope of their lawful authority under the Traffic Act. There was no evidence that the applicant had committed any offence...
Source-derived case information.
- Citation
- [2009] KEHC 2889 (KLR)
- Parties
- Applicant: Ali Mohamed Bereki; Respondent: Attorney General
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Case 642 of 2005
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- Application allowed. Order of mandamus granted as prayed. Costs to the applicant.
- Legal Topics
- Judicial Review, Mandamus, Abuse of Power, Unlawful Detention of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ali Mohamed Bereki
Applicant
Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the Kilifi Traffic Police acted lawfully in detaining the applicant's motor vehicle for non-payment of towing charges to a private entity.
- 2 Whether the applicant is entitled to an order of mandamus compelling the release of the motor vehicle.
- 3 Whether the conduct of the police amounted to an abuse of power or illegality.
Ratio Decidendi
The court found that the Kilifi Traffic Police, by detaining the applicant's motor vehicle and conditioning its release on payment of towing charges to a private entity, acted outside the scope of their lawful authority under the Traffic Act. There was no evidence that the applicant had committed any offence warranting continued detention of the vehicle, nor was there any legal basis for requiring payment of a private debt as a precondition for release. The police's actions amounted to an abuse of power and illegality, justifying judicial intervention by way of mandamus. The applicant was therefore entitled to the relief sought, namely, the immediate release of his motor vehicle and costs...
Court Disposition
Application allowed. Order of mandamus granted as prayed. Costs to the applicant.
Orders
- An order of mandamus is issued compelling the Attorney General, through the Officer in-Charge Kilifi Traffic Police, to forthwith release to the applicant motor vehicle registration number KAG 675X.
- The applicant is awarded the costs of this application.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
Miscellaneous Civil Case 642 of 2005
ALI MOHAMED BEREKI……………………..……….……...APPLICANT
AND
ATTORNEY GENERAL……………….…………………….RESPONDENT
JUDGMENT
Ali Mohamed Bereki (hereinafter “the Ex-parte applicant”), is the owner of motor vehicle registration number KAG 675X (hereinafter “the motor vehicle”). On 11th August 2005, the said motor vehicle was involved in a minor accident along Mombasa/Malindi road near Takaungu in Kilifi District. Notwithstanding that the said motor vehicle could be driven, Traffic Officers of Kilifi engaged a private breakdown vehicle to tow the said motor vehicle to Kilifi without involving the Ex-parte applicant. As no offence had been committed, the ex-parte applicant requested the said traffic officers to release the said motor vehicle to him. The traffic officers demanded, of the ex-parte applicant, Kshs. 75,000/= as a condition for the release of the said motor vehicle which sum was alleged to be due to the breakdown vehicle owner as towing charges. The ex-parte applicant declined to pay the said charges as he was not privy to the agreement to tow the said vehicle. The Kilifi traffic officers continued to hold the ex-parte applicant’s vehicle thereby prompting him to apply by way of Chamber Summons for leave to apply for an order of mandamus compelling the Attorney General, through the officers in charge Kilifi Traffic Police to forthwith release, to the ex-parte applicant, the said motor vehicle.
On 26th August 2005, Maraga J, granted the said leave and on 5th September 2005 the ex-parte applicant filed this Notice of Motion seeking an order of mandamus to compel the Attorney General through the said Officer in-Charge Kilifi Traffic Police to forthwith release to the ex-parte applicant the said motor vehicle on the grounds that the said motor vehicle was being detained for no lawful cause and the release was made conditional upon the ex-parte applicant satisfying an unacknowledged debt owed to a private enterprise which condition amounts to an illegality and/or abuse of authority. The Notice of Motion, in accordance with the Law, is supported by a statutory statement and a verifying affidavit which had supported the application for leave. The said statement and verifying affidavit give the background leading to the detention of the said motor vehicle by Kilifi Traffic Police. The ex-parte applicant has exhibited the log book of the said motor vehicle which shows that he is the registered proprietor thereof.
The Attorney General was served through his Mombasa Office but neither filed a replying affidavit nor any other response to the application. On various occasions when the Notice of Motion came up for hearing, a representative of the Attorney General attended and at one time settlement was mooted but nothing came out of that. When the Notice of Motion finally came up before me for hearing on 1st April 2009, no representative of the Attorney General attended despite a hearing notice having been previously served. The Notice of Motion therefore proceeded ex-parte.
I have considered the application, the Statutory Statement and the verifying affidavit. Having done so, I take the following view of the matter. The traffic police are mandated under the Law to enforce the provisions of the Traffic Act in addition to their other duties as police officers. If the ex-parte applicant committed a traffic offence or any other offence, he could have been charged before court. But he did not. The involvement of the traffic police should have come to an end and released the said motor vehicle to the ex-parte applicant. They did not do so on the ground that towing charges due to a private body be paid before the motor vehicle could be released. The traffic police at Kilifi, in insisting that towing charges be paid to a private body before they could release the said motor vehicle, were not enforcing any traffic rule or Section under the Traffic Act or any other provision of the Law. They were using their position as police officers for a collateral purpose to advance the private interests of the private body. Their conduct is a clear abuse of power. To borrow from Lord Scarman’s quote in Reg – v – Secretary of State for the Environment ex-parte Nottingham Shire County Council [1986] AC,
“A power which is abused should be treated as a power which has not been lawfully exercised.”
The Kilifi Traffic Police have therefore in addition to having abused their power, acted illegally and this court can intervene as sought by the ex-parte applicant. It was held in Maritime Electric Company Limited – v – General Dairies QB 27as follows:
“The crown……can be estopped when it is not properly exercising its powers but is misusing them………..”
In the premises, I find and hold that the ex-parte applicant is entitled to the relief sought in paragraph 1 of his Notice of Motion. The order sought shall issue forthwith as prayed.
The ex-parte applicant shall have the costs of this application.
Orders accordingly.
DATED AND DELIVERED AT MOMBASA THIS 13TH DAY OF MAY 2009.
F. AZANGALALA
JUDGE
Read in the presence of:-
Oloo holding brief for Maina.
F. AZANGALALA
JUDGE
13TH MAY 2009