[2022] KEHC 10843 (KLR)

Alibhai v OCS Hazina Police Station & another; Otieno (Interested Party) (Miscellaneous Criminal Application E263 of 2021) [2022] KEHC 10843 (KLR) (Crim) (6 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10843 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Miscellaneous Criminal Application E263 of 2021

LN Mutende, J

June 6, 2022

Between

Alikhan Firoz Alibhai

Applicant

and

OCS Hazina Police Station

1st Respondent

ODPP

2nd Respondent

and

Ken Otieno

Interested Party

Ruling

1. Alikhan Firoz Alibhai approached this court through a Notice of Motion dated 2nd August, 2021 seeking release of Motor Vehicle Registration No. KCE XXXX Toyota Saloon Black in colour that is detained at Hazina Police Station.

2. The application is premised on grounds that the applicant, the owner of the Motor Vehicle entered into an arrangement for sale of the vehicle with an agent known as Zib from Ujala Motors Bazaar, at a price of Ksh. 1,250,000/-. He was paid Ksh. 750,000/- leaving an outstanding balance of Ksh. 500,000/-.Subsequently the motor-vehicle disappeared and the applicant made a report to the Police who investigated, traced the vehicle, and impounded it.

3. That a third party claimed ownership of the vehicle but the log book, though still in the name of Lena Salma Anunda who sold it to the appellant, is in possession of the applicant.

4. In an affidavit in support of the application, the applicant avers that he went to the agent Bazaar and was informed that the young man that he gave the vehicle to sell, sold it and disappeared. The information received prompted him to report the matter to the Police Station, Kilimani, who did not take any action since 2016.

5. In May 2021 he made another report at Hazina Police Station South B and the Police traced the vehicle. An Interested Party Ken Otieno claimed to have purchased the vehicle therefore it can only be released pursuant to a court order.

6. Ken Otieno sought to be enjoined as an interested party an application that was allowed. His argument was that he was a bonafide purchaser for value having purchased the vehicle for Ksh. 1,450,000/- from an agent appointed by the applicant herein. That the Interested Party was arrested on 31st July 2021 and the motor-vehicle was driven to Hazina Police Station. That he was not charged because he availed all the documents pertaining the purchase of the vehicle. That to determine the issue of ownership the Interested Party filed a suit CMCC E1058/2021 Ken Otieno vs. Smart Autos Limited, Alikhan Firos Alibhai, Ujala Motors Limited, Jahanzaib Khalid and Inspector General of Police on 4th August, 2021 seeking transfer of the vehicle to himself.

7. The Respondents through ODPP filed grounds of opposition where it was averred that the application is not premised on any provision of the law therefore is devoid of merit in law. That it is premised on allegations of ownership of the motor-vehicle KCE XXXX whose supporting affidavit cannot be verified by the court and being a matter premised on a contract of sale, the remedy is through civil proceedings and since the police are unaware of the legal owner of the motor-vehicle, it cannot be released.

8. The application was disposed through written submissions. It was the argument of the applicant that the agent who was entrusted with the sale of the car cheated the purchaser and stole from the seller. As provided by Section 283 (a) of the Penal Code, therefore, the vehicle should be released to the applicant. That the Interested Party was only in possession of the motor-vehicle as ownership had not passed to him despite paying the agent the purchase price.

9. On the question of Jurisdiction the applicant urged that this court is not privy or does not have the privilege of hearing other parties in CMCC. E1058/2011 where the question of the parties’ rights is to be determined. That unlike the applicant, the Interested Party neither reported Mr. Johan Zaib nor took any action against Smart Auto in CMCC E1058/2021 and the case filed in the Commercial Court was done two (2) days after the applicant filed this application.

10. That ownership documents can only pass to the Interested Party if all the money is paid to the applicant. That the Interested party having gotten an undertaking from Mr. Johan Zaib his money will be refunded, a luxury that the applicant is not enjoying.

11. The Interested Party submitted that he purchased the motor-vehicle Registration Number KCE 090J from Ujala Motors on 10th April, 2016 at Ksh. 1,450,000/-. The sales man Jahanzaib Khalid promised to hand over the documents once the owner of the vehicle handed them over, but, he took possession of the motor-vehicle which he used without any interference for five(5) years until 30th July 2021 when he was accosted by Policemen accusing him of stealing. That he filed the Civil Suit against parties involved not knowing that the applicant had filed the instant application.

12. That the applicant is feigning ignorance of the fact of having knowledge that the vehicle was sold, having received part payment. That he is claiming fraud on the part of his agent who should be held liable. Therefore, the application is baseless. That failure to remit the full amount of the purchase price, the issue should be settled between the agent and the principal. That justice would demand that the vehicle is released to the Interested Party as is wasting away.

13. I have considered the application, affidavits in support and opposition and submissions filed by the applicant and Interested Party.

14. It is important to note that the applicant herein who is represented by the firm of Mochere & Company Advocates filed their application without citing any provision of the law that the court would base its decision when granting or denying the orders sought. Therefore, in determining this matter, the court can only take into consideration the cause of fairness and equity.

15. Looking at the facts as admitted, the applicant released the motor-vehicle to an agent in the year 2016 and following their mutual agreement he sold the vehicle and paid him Ksh. 750,000/- leaving a balance of Ksh. 500,000/-. With this knowledge, after the balance remained unpaid he believed the vehicle had been stolen therefore reported to the Police. No evidence was adduced of the alleged report made at Kilimani Police Station but there was proof of a report having been made to Hazina Police Station, South B where action was taken and the motor-vehicle impounded.

16. The police having detained the vehicle following the complaint made were required to investigate the matter. The grounds of opposition filed by the Respondent do not divulge anything to suggest that investigations have been conducted. As it is, there would be no reason to continue detaining the vehicle.

17. However, this is a case where the motor-vehicle was in possession of an individual when it was impounded but it is not indicated as to what action was taken against the person.

18. The Interested Party has however urged that he was the purchaser of the vehicle and he made full payment of the sum and what is also intriguing is that for the five years he has been a beneficial owner of the motor-vehicle, transfer documents have not been availed to him. This court cannot be moved to determine ownership of the vehicle since that was not the relief sought. In any case, neither the agent nor the registered owner of the vehicle are parties to this application. From the pleadings, this should have been a civil claim as the real issue is payment of the outstanding balance, and ownership of the motor-vehicle.

19. It has been divulged by the Interested Party that he filed a civil suit against the applicant and others. That court would be the appropriate court to determine the question of ownership of the vehicle.

20. Otherwise, when it comes of release of exhibits that are not in custody of the Police, this court has pronounced itself in that regard severally; it would be unjust for this court to interfere with investigations being conducted by the Respondents who should however fastrack and form the opinion to either prefer charges or let the Civil Court pronounce itself.

21. The upshot of the above is that the application fails and is dismissed.

22. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLYAT NAIROBI THIS 6TH DAY OF JUNE, 2022. L. N. MUTENDEJUDGEIN THE PRESENCE OF:Mr. Otieno for the StateMr. Stanley Kinyanjui for Interested PartyCourt Assistant – Mutai