[2009] KEHC 269 (KLR)
The court found that the applicant's constitutional right to property under section 75 of the Constitution had been violated by the police's impounding and continued detention of his vehicle without any lawful justification, charge, or notice of intended prosecution. The absence of any response from the respondents...
Source-derived case information.
- Citation
- [2009] KEHC 269 (KLR)
- Parties
- Applicant: Japhet Ogamba Gichana; Respondent: OCS Keroka Police Division; Respondent: Attorney General
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 213 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- petition allowed
- Legal Topics
- Right to Property, Unlawful Detention of Property, Police Powers and Duties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Japhet Ogamba Gichana
Applicant
OCS Keroka Police Division
Respondent
Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the impounding and continued detention of the applicant's motor vehicle by the police without charge or notice violated the applicant's constitutional right to property.
- 2 Whether the applicant is entitled to an order for release of the vehicle and liberty to sue for damages.
Ratio Decidendi
The court found that the applicant's constitutional right to property under section 75 of the Constitution had been violated by the police's impounding and continued detention of his vehicle without any lawful justification, charge, or notice of intended prosecution. The absence of any response from the respondents meant the applicant's factual assertions stood unchallenged. The court held that the police action was unlawful and ordered the immediate release of the vehicle to the applicant, further granting him liberty to pursue damages for the illegal detention.
Court Disposition
petition allowed
Orders
- A declaration is issued that the petitioner's right to the vehicle under section 75 of the Constitution has been violated.
- An order is issued to the OCS Keroka police station, or any other officer concerned, to release the vehicle to the petitioner.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
Miscellaneous Application 213 of 2009
JAPHET OGAMBA GICHANA.................................PETITIONER
-VERSUS-
THE OCS KEROKA POLICE DIVISION........1ST RESPONDENT
THE ATTORNEY GENERAL.........................2ND RESPONDENT
RULING
This petition was served on the Honourable the Attorney General but received no response. The factual basis of the application has therefore not been controverted.
On 5/9/2009 motor vehicle registration number KAQ 215M matatu was impounded by traffic police officers from Keroka police station while it was being driven by Mark Motika who was in the employment of the petitioner. The petitioner is the owner of the vehicle having bought it from the previous owner.
The driver did not disobey any signal given by the officers and had not obstructed, or committed any traffic offence. The officers did not say why they were impounding the vehicle. They did not issue any notice of intended prosecution, and have not charged the driver or the owner since. The petitioner has visited the station to have the vehicle released but that has not met with success. He now states that his constitutional right to the vehicle has been infringed and seeks the protection of the court.
On basis of the facts above, it is declared that the petitioner’s right to the vehicle under section 75 of theconstitutionhas been violated and an order is hereby issued to the OCS Keroka police station, or to any other officer concerned, to release the vehicle to him. The petitioner shall be at liberty to sue for damages in regard to this illegal detention of the vehicle.
Dated, signed and delivered at Kisii this 23rd day of November, 2009.
A.O.MUCHELULE
JUDGE
23/11/2009
Before A.O.Muchelule-J
Mongare court clerk
Mr. Bosire for applicant
Mr. Kemo –present
COURT: Ruling in open court
A.O.MUCHELULE
JUDGE
23/11/2009