[2015] KEHC 2914 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL, COMMERCIAL & ADMIRALTY DIVISION

CIVIL SUIT NO. 107 OF 2009

CONSOLIDATED MINERALS & ENERGY INVESTMENT LTD

ABDUL RAHMAN EL AMIN…………………… .PLAINTIFFS

VERSUS

ABDULATIFF IBRAHIM……..….………………DEFENDANT

JUDGMENT

1. This Case is filed by two Plaintiffs. The first Plaintiff is CONSOLIDATED MINERAL & ENERGY RESOURCE INVESTEMENT LIMITED. The second plaintiff is ABDUL RAHMAN EL AMIN. The second Plaintiff’s a Director of the first Plaintiff. According to the Bill of Lading the 1st Plaintiff was the consignee of Motor Vehicle, Land Cruiser whose Chassis No. was JTFLB71J688016697 engine No. IH200584515.

2. The Plaintiffs sued the Defendant, ABBULATIF IBRAHIM, alleging that he was negligent in clearing the said vehicle from the Port of Mombasa and thereby failed to deliver it to as agreed.

3. The defendant denied the Plaintiffs’ Claim and Counter Claimed that the 2nd Plaintiff maliciously arranged for Defendant to be arrested and charged with the theft of the Motor vehicle. That such arrest and charge led to the loss of his business and therefore he sought damages for malicious prosecution and damages for loss of his business.

4. The Plaintiffs’ evidence was adduced before Justice Mohamed Ibrahim (as he then was, now a Judge of the Supreme Court) while the Defendant’s evidence was adduced before me.

5. Having considered the parties evidence and pleadings it is my considered view that the following issues present themselves for consideration;-

Did the defendant fail to exercise safety while the motor vehicle was in his custody?

If the answer to (a) is in the positive, is he liable to compensate the plaintiffs for its loss and the attendant expenses?

Whose responsibility was it to insure the vehicle?

Did the Plaintiff maliciously ensure the defendant was arrested and charged with the theft of that vehicle?

If the answer to (d) above is in the positive, did the plaintiff suffer loss and damage and if so, is the defendant liable for such loss and damage?

ISSUE A

6. The Plaintiffs contracted the Defendant to clear Motor Vehicle Land Cruiser. The Plaintiffs pleaded in their plaint that the defendant failed to keep safe custody of the motor vehicle and thereby failed to deliver it to them as it had been agreed.

7. 2nd Plaintiff, in his evidence stated that the Defendant had previously cleared motor vehicles for him from the port of Mombasa. It was on that basis that 1st plaintiff agreed that the defendant would clear the subject vehicle. The plaintiff however did not receive that vehicle because he was informed it was stolen.

8. 2nd Plaintiff criticized the Defendant for having stored the vehicle at a Petrol Station rather than keeping it at his home, as he had done before. He termed defendant’s parking of the car at the petrol station as negligent.

9. The Defendant described himself as a clearing and forwarding agent. He confirmed the second Plaintiff instructed him to clear the vehicle from Mombasa Port. That he had previously cleared 20 cars for the Plaintiff. That the subject vehicle on being cleared by his staff was parked at a Kobil Petrol Station next to his office. The vehicle was parked there together with other vehicles that had been cleared from the Port by his Firm.

10. Defendant then stated that the procedure was once vehicles were cleared by his Firm, the owners were informed and either collected their vehicle or arranged for them to be picked by a driver.

11. In respect to the subject vehicle, when it was cleared from the port, the 2nd plaintiff was in Canada. 2nd Plaintiff stated that the Plaintiff instructed his driver not to take the vehicle until he had issued him with instruction on when it was to be taken to Sudan.

12. Defendant confirmed that he had hired a guard to look after vehicles parked at the Petrol Station. Indeed that guard was charged with the Criminal Offence of the theft of the subject vehicle together with the defendant and two petrol station attendants of that petrol station.

13. The Plaintiff alleged that the Defendant was negligent for having left the keys of the subject vehicle with the petrol attendants.

ANALYSIS OF ISSUE (A) AND (B)

14. The Defendant’s evidence was that his firm had parked the subject vehicle at the Kobil Petrol Station, as he had done previously, and that even at the time the theft occurred there were other vehicles parked by his firm there which were not stolen.

15. Although the Plaintiff faulted the defendant’s action of leaving the keys at the petrol station, it is important to state that the theft of the subject vehicle did not involve the use of the keys left at the petrol station. This was confirmed by the Petrol attendant DANIEL KATANA KENGA during the criminal trial. He stated that the car keys were usually locked in the office of the petrol station. After the theft he confirmed the car keys were still where they had been locked.

16. The evidence adduced by the plaintiff does not meet the standard of proof of negligence. The only thing the plaintiff attributes to the loss of the subject vehicle is the parking of that vehicle at the petrol station and the leaving of the keys with the petrol attendance.

17. In my view those allegations of negligence are well met by the defendant’s evidence that he had employed a guard and that theft did not involve the use of the keys of the vehicle. There is no evidence adduced that the theft would not have occurred if the vehicle was parked at the defendant’s home.

18. In response to the issues;-

I find that the defendant exercised reasonable safety of the vehicle in his custody. It follows in response to issue.

That the defendant is not liable for the loss of the vehicle or the attendant costs.

19. On issue (c) I find that the responsibility of who should have insured the vehicle was not clear. The defendant blamed the plaintiff for only having taken a third party insurance rather than fully comprehensive insurance.

20. The 2nd Plaintiff at the Criminal Trial while being examined in chief stated:

“I used to get a comprehensive insurance of the vehicle at Juba(2nd Plaintiff is a Sudanese national)then I would notify Abdullahi to send the vehicle to Kampala”

21. When testifying in this Suit, Plaintiff stated

“I had told him(the Defendant)that he should not have moved the vehicle until he had insured it”

ANALYSIS OF ISSUE (C)

22. In view of the Plaintiff’s contradiction on this issue of insurance, I find that it was not the obligation of the defendant to insure the vehicle.

ISSUE (D)

23. The defendant in my view failed to prove on a balance of probability that the plaintiff maliciously ensured he was arrested and charged with a Criminal Offence.

24. Although the Plaintiffs in their Plaint stated that the 2nd Plaintiff had helped the police arrest the Defendant. In giving evidence however, the 2nd Plaintiff denied influencing the Defendant’s arrest. This is what the 2nd Plaintiff stated:

“It is the police who decided to arrest him(the defendant).The police evaluated the case and made a decision. I had no malice.”

ANALYSIS OF ISSUE (D)

25. The Plaintiffs’ Learned Counsel quite rightly gave a definition of malice as found in the book Salmond on the Law of Torts 15th ed. Viz:

“The presence of improper and wrongful motive i.e. intent to use the legal process in question for some other than its legally appointed and appropriate purpose.”

26. Plaintiff’s reliance on the case KATEREGA -VS- ATTORNY GENERAL [1973] E.A. 287 is right on point. That is the police is the agent of the prosecuting authority, by then it was the attorney General, now it is the Director of Public Prosecution (DPP). That being so the police can only be found to have acted maliciously if they acted without probable Cause.

27. It is important to note that the police, who arrested the Defendant, were not made a party in this cause. That failure in my view leads to the Defendant’s claim for malicious arrest to fail. The Defendant did not prove that the 2nd plaintiff at all influenced his arrest. For that reason issue (d) is in the negative.

28. It follows that issue (e) must also fail because the Plaintiff cannot be found liable for any loss or damage that occurred following defendant’s arrest and charge.

OBSERVATIONS

29. The Plaintiff’s Learned Counsel provided detailed written submission, which although made very interesting reading, did not address the issues raised in the pleadings and accordingly where I have made no mention of those submissions it is because they cannot assist in the determination of those issues.

30. Further observation is that the consignee of the vehicle and therefore the right party to have filed this action was the 1st Plaintiff. The 2nd Plaintiff had no proprietary interest in the vehicle.

CONCLUSION

31. Both Plaintiff and the Defendant’s Claim must and do fail. Accordingly, the Plaintiff’s Case and the Defendant’s Counter Claim are dismissed. Each party shall bear their own costs.

DATED and DELIVERED at MOMBASA this 24th day of September, 2015.

MARY KASANGO

JUDGE

24. 9.2015

Coram

Before Justice Mary Kasango

Court Assistant:-

For the Plaintiffs:-

For the Defendants:-

Court:

Judgement delivered in their presence/absence in open court.

MARY KASANGO

JUDGE