https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10483

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ISIOLO** **CIVIL APPEAL NO. E011 OF 2025** **KENYA REVENUE AUTHORITY…………..……………..…. APPELLANT** **VERSUS** **ALNOOR AL MUSTAQUEEN GENERAL TRADERS LTD……..………….............................................................…1…ST RESPONDENT** **OFFICER COMMANDING POLICE STATION GARBATULA……………..................................................2ND RESPONDENT** **ATTORNEY GENERAL…………………………………….…….3RD RESPONDENT** ***(****Being an Appeal from the Judgement of the Chief Magistrates Court at Isiolo delivered by Hon. L Mutai (CM)on the 11th December, 2023 in the Isiolo CMCC No E005 of 2021)* **J U D G M E N T** 1. The 1st Respondent sued the Appellant and the 2nd and 3rd respondents before the lower court for *illegal, malicious* and *unjustifiable* detention of his goods and Motor vehicle registration no. KBH 245K at Garbatulla police station. It is stated that as a result the Appellant suffered loss of profits in respect of the commodity that was being hauled and loss of user of the vehicle for a specified period of time. It was the 1st respondent’s case that there was no valid reason for the seizure and detention of the goods and the Motor vehicle. 2. The Appellant filed a defence and asserted *interalia* that it was carrying out a statutory duty within the context of **East African community customs management Act (EACCMA) of 2004**, that there was a reasonable apprehension for the seizure and detention of the goods, and that it should not be punished for carrying out a duty imposed on it, by the law. 3. Upon conclusion of the hearing, the trial court returned a verdict in favour of the 1st Respondent as against the Appellant and the 2nd and 3rd respondents, jointly and severally, and awarded the 1st Respondent a total of ksh. 3,182,720 in damages. 4. The Appellant was aggrieved by the decision, and has proffered this appeal. **Memorandum of Appeal** 1. Through its Memorandum of Appeal dated 2nd May 2025, it has raised the following grounds: 1. *The learned trial court erred in law and fact by failing to consider that the Appellant was acting pursuant to powers granted under Section 153 of EACCMA that grants the Appellant powers to seize any vehicle conveying unaccustomed goods.* 2. *The learned Judge erred in law and fact by disregarding the law and treating the seizure of the subject Motor vehicle as unjustifiable despite it being clear that until it was so clarified, the various correspondences even from the Plaintiff pointed to the goods being unaccustomed goods.* 3. *The learned trial court erred in law and fact by awarding Kshs 2,000,000 for loss of user yet the Appellant released the subject Motor vehicle within 4 days after conclusion on investigations on whether the goods were accustomed goods.* 4. *The learned trial court erred in law and fact by disregarding the clear and undisputed facts that the Plaintiff was not the owner of the Subject Motor Vehicle and had not adduced any document to prove that the actual owner had demanded payment from the Plaintiff.* 5. *The learned trial court erred in fact and law by disregarding the now set principle that Special damages must be pleaded and proved by awarding Special damages of Kshs 2,000,000 despite there being no single receipt or invoice filed by the plaintiff.* 6. *The learned trial court erred in fact and law by disregarding the fact that Plaintiff did not have the Locus standi to claim for Special damages for the Subject Motor vehicle which they did not own.* 7. *The learned trial court erred in law and fact by departing from the holding in* ***Kenya Revenue Authority vs Alnoor Mustagaqeen General Traders ltd & 3 others (2014) EKLR.*** 8. *The learned trial court erred in law and fact by awarding the 1st Respondent compensation without sufficient proof of any damages suffered by the Respondents.* 9. *The learned trial court erred in law and fact by treating the three Defendants as one entity and therefore failing to apportion liability (if at all) for each party despite the said defendants having separate constitutional mandates and the fact that the Appellant herein released the subject Motor vehicle within 4 days after conclusion on investigations on whether the goods were accustomed goods.* 10. *The learned Judge erred in law and fact by failing to exercise his discretion judiciously in awarding the Respondents excessive compensation to be paid from public coffers with interest, for actions done by public officers pursuant to powers conferred to them under section 153 of EACCMA.* 2. The Appeal proceeded by way of written submissions. **Appellant’s Submissions** 1. It is the Appellant’s submission that the trial court erred in failing to recognize that its officers were acting within the legal mandate provided by **Section 153 of EACCMA**, which permits the stopping, searching, and detention of any vehicle suspected of conveying unaccustomed goods. That a seizure Notice was duly issued. It is further submitted that the seizure was justified in view of the discrepancies in the documentation presented by the 1st Respondent, including major discrepancies on the origin and the destination of the sugar, and the vehicle registration number. To buttress this position, the Appellant relies on the finding in ***Kenya Revenue Authority v Alnoor Al Mustaqeen General Traders Ltd & 3 others (2014)eKLR****,* where the court of Appeal agreed with the Appellant that the discrepancies in the documentation held by the then conveyor of goods justified the seizure and retention of the conveyor’s vehicle. 2. The Appellant contends that all that is required of them to seize and retain a vessel is the existence of *“reasonable grounds*,” and these “*reasonable facts”* mean information that establishes sufficient articulable facts that lead a trained officer to believe that criminal activity may have been committed. Reliance is placed on the case of ***Republic v Kenya Revenue Authority & another; Director of Criminal Investigations & another (Interested Party) Ex parte CMC DI Ravenna-Itinera JV(2020) eKLR*** 3. Counsel for the Appellant also cites ***Konton Trading Limited v Kenya Revenue Authority & 3 others (2018) eKLR,*** to argue that where a decision is rationally connected to enforcing a statutory requirement, such as verifying suspected tampered goods, it cannot be deemed unreasonable. 4. Regarding the award of Kshs 2,000,000 for loss of user, the Appellant argues that the trial court disregarded the fact that the subject motor vehicle was released within four (4) days of receiving confirmation of purchase from Mumias Sugar Company, the named manufacturer and seller of the sugar. 5. It is further argued that the 1st Respondent failed to provide any receipts or invoices to prove the alleged daily earnings of Kshs 60,000, by use of the subject vehicle. It is further pointed out that by the 1st respondent’s own admission, by the time of the seizure, the price of the commodity had dropped from ksh. 7, 362 per bag to ksh. 5,250. Thus, respondent therefore contends that the award on special damages was purely based on guess- work. 6. The Appellant further submits that 1st Respondent’s had no *locus standi* to claim damages for loss of user in respect of a vehicle it did not own, and that no evidence was adduced to show that the actual owner had demanded payment from the 1st Respondent for loss of use. 7. Finally, the Appellant submits that the trial court erred in failing to apportion liability among the three Defendants, effectively punishing the Appellant despite its swift action in releasing the vehicle once investigations were concluded. **1st Respondent’s submissions** 1. The 1st Respondent in opposition to the Appeal, filed written submissions dated 12th May 2026. 2. It is first submitted that the Appeal is devoid of merit, both in law and in fact, as the learned trial magistrate properly evaluated the evidence and correctly applied the law. 3. The 1 Respondent contends that while the Appellant has relied on **Section 153 of the EACCMA**, that provision only protects actions undertaken on reasonable grounds, and in good faith. 4. The Respondent argues that the trial court expressly found that no evidence was tendered to demonstrate the existence of "reasonable grounds" to justify the detention, noting that the officer who allegedly effected the seizure did not testify and no contemporaneous record was produced. Reliance is placed on the High Court decision in ***Paul Njoroge Kimani v Kenya Revenue Authority & Another (2012) KEHC 1257 (KLR)****,* where the court observed: *“The section does not give the 1st respondent or officers working under it power to detain a vehicle or to confiscate suspected unaccustomed goods conveyed therein….. However, the Commissioner’s powers under Section 130 of EACCMA must needless to say be exercised rationally, reasonably and following due process. In the absence of evidence that the confiscated goods were actually unaccustomed goods, I find that the 1st respondent’s action of detaining the same was an illegality as it was done in contravention of the law.”* 1. Similarly, it is submitted that in ***Emmanuel Hatangimbabazi v Commissioner of Customs & Excise(2004) KEHC 1935 (KLR)****,* the court found seizure to be unjustified where procedures were not followed. The court held: *“Was the seizure justified: This court does not think so. No reason was given for it and the procedures given by law were not followed. The goods were not prohibited or restricted; the plaintiff was not arrested, questioned or even prosecuted on account of his truck and most of all the defendant has not demonstrated that the transit-goods licence, F C 44 form or even temporary transit authority or such other explanation was not furnished by the plaintiff to cover his motor vehicle…… The court in this case cannot therefore assume that the seizure was lawful. It is all on the defendant to show this and he did not do so.”* 1. Regarding the award for loss of user, the 1st Respondent maintains that the trial court properly exercised its discretion guided by binding precedents. It is argued that the 1st Respondent produced several documents, including receipts and delivery notes, showing that the motor vehicle was engaged in transportation business. On the proof of special damages, the 1st Respondent cites ***Nkuene Dairy Farmer Co-operative Society Ltd v Ngacha Ndeiya (2010) eKLR****,* where the court held: *“special damages in a material damage claim need not be shown to have actually been incurred, that the claimant is only required to show the extent of damage and what would cost to restore the damaged item as near as possible to the condition it was before the accident”.* 1. It is further submitted that the trial court’s award of Kshs 2,000,000 demonstrated judicial restraint and proper exercise of discretion. Counsel relies on the principle in ***Butt v Khan KLR 349****,* stating that an appellate court will not interfere with an award of damages unless it is inordinately high or based on wrong principles. The Respondent contends that no such error has been demonstrated in this case, especially as the trial court found the conduct of the officers to be malicious, given the continued detention even after verification by the manufacturer. 2. On the issue of ownership, the 1st Respondent argues that the Appellant’s contention is misplaced as the Respondent had lawful possession and use of the motor vehicle for business purposes. It is submitted that the Respondent discharged its burden of proof by adducing evidence of the lawful purchase of sugar from Mumias Sugar Company, and once this was established, the evidential burden shifted to the Appellant to justify its actions under **Sections 107–109 of the Evidence Act** 3. Finally, regarding the entry of judgment, jointly and severally, against the Defendants, the 1st Respondent submits this was proper given their concerted actions. Reliance is placed on ***Zarina Akbarali Shariff and Another v Noshir Pirosesha Sethna and Others (1963) EA 239****,* where it was held: *“If each of the several persons, not acting in concert, commits a tort against another person substantially contemporaneously and causing the same or indivisible damage, each tortfeasor is liable for the whole damage”* **2nd and 3rd Respondents’ Submissions** 1. The above respondents filed submissions in support of the Appeal. They further stated that they were adopting the Appellant’s submissions in its entirety. They further contend that the learned trial magistrate erred in failing to recognize that the 2nd Respondent acted strictly in accordance with the statutory mechanisms provided under the **EACCMA**. 2. It is further submitted that the seizure and detention of the motor vehicle was lawful as they were predicated on a "reasonable ground to believe" that the vehicle was conveying unaccustomed goods. To support this contention, they rely on ***Crywan Enterprises Limited versus Kenya Revenue Authority (2013) KEHC 4247 (KLR)****,* where the court held: *“What these provisions demonstrate is that forfeiture is not arbitrary but is subject to reasonable grounds taking the provisions of impugned sections within the context of the entire Act. Moreover, there is a procedure for determining the rights of a party whose property has been seized on account of suspicion of breach of the Act and for the Commissioner to secure the collection of taxes. This is consistent with the tenets of procedural fairness.”* 1. The respondents have also relied on the definition of "*reasonable and probable cause"* as articulated by Rudd, J. in ***Kagane and Others v Attorney-General and Another(1969) 1 EA 643*** where it was held: “*Reasonable and probable cause is an honest belief in the guilt of the accused based upon a full conviction founded upon reasonable grounds of the existence of a state of circumstances, which assuming them to be true, would reasonably lead an ordinary prudent and cautious man placed in the position of the accuser to the conclusion that the person charged was probably guilty of the crime imputed... If and insofar as that material is based on information, the information must be reasonably credible, such that an ordinary reasonable prudent and cautious man could honestly believe to be substantially true ...”* 1. They maintain that the existence of major alterations in the 1st Respondent’s documentation provided the necessary factual foundation for such belief, as previously affirmed in ***Kenya Revenue Authority versus Alnoor Al Mustaqueen General Traders Ltd & 3 Others (2014) eKLR****:* *“Based on the aforementioned suspicion that the consignment of sugar had been smuggled, the appellant and the 2nd respondent were acting within their mandate by stopping and detaining the vehicle containing the sugar...”* 1. On the issue of quantum, these Respondents argue that the trial court's award was based on conjecture and speculative calculations. They submit that special damages, such as loss of user and loss of earnings from sugar sales, must be specifically pleaded and strictly proved by admissible contemporaneous evidence. In this regard they have cited the decision in ***David Bagine Versus Martin Bundi (1997) eKLR****,* where the Court of Appeal observed: *“It has been held time and again by this court that special damages must be pleaded and strictly proved... '...special damages in addition to being pleaded, must be strightly proved as was stated by Lord Goddard C. J. in Bonham Carter Vs. Hyde Park Hotel Limited 64 TLR 177 thus: “Plaintiffs must understand that if they bring actions for damage it is for them to prove damage, it is not enough to write down the particulars and, so to speak, throw them at the head of the court, saying, ‘this is what I have lost, I ask you to give me these damages.’ They have to prove it'”* 1. In conclusion, the 2nd and 3rd Respondents urge this Court to find that awarding damages against public officers who were legally and procedurally executing their statutory functions would improperly shift the burden of speculative commercial risks onto innocent taxpayers. They pray that the appeal be allowed and the trial court's award be set aside. **Analysis and Determination** 1. This being a first appeal, this Court is obligated to review the evidence tendered at the trial court, re-evaluate it and arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. This duty was settled *in* ***Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123****.* 2. I have carefully considered the trial record, the grounds of appeal, and the rival submissions, and in my view the following issues lend themselves for determination: *a). Whether the seizure and detention of the motor vehicle and the consignment of sugar was lawful under the East African Community Customs Management Act (EACCMA);* *b). Whether the 1st Respondent proved its claim for damages.* *c). Whether the 1st respondent had the locus standi to claim for loss of user.* *d). Whether* *liability should have been apportioned between the defendants* *Whether the seizure and detention of the motor vehicle and the consignment was lawful* 1. The statutory powers donated under Sections 153, 210 and related provisions of the EACCMA are intended to facilitate enforcement of customs laws by permitting officers to stop, search and detain goods or vehicles where there exist reasonable grounds to suspect commission of an offence under the Act. Those powers, however, are not absolute. They must be exercised reasonably, in good faith and within the confines of the Constitution. 2. The Court of Appeal in ***Kenya Revenue Authority v Alnoor (supra)****,* a dispute involving substantially similar parties, acknowledged that customs officers are entitled to detain goods where there exists reasonable suspicion that customs laws have been violated. Equally, however, the Court emphasized that the legality of such detention depends upon the existence of objective facts capable of supporting that suspicion. 3. Likewise, in ***Republic v Kenya Revenue Authority & Another; Director of Criminal Investigations & Another (Interested Party) Ex Parte CMC DI Ravenna-Itinera JV [2020] eKLR****,* the High Court observed that “reasonable grounds” require objective and articulable facts capable of leading a reasonable officer to suspect that an offence has been committed. 4. On the other hand, the courts have consistently held that statutory powers cannot be exercised arbitrarily. In ***Paul Njoroge Kimani v Kenya Revenue Authority & Another [2012] eKLR***, the High Court held that although KRA possesses statutory enforcement powers, those powers must be exercised rationally and in accordance with due process, and the burden rests upon the authority to justify continued detention of seized property. 5. In **Emmanuel Hatangimbabazi v Commissioner of Customs & Excise [2004] eKLR**, the court held that once challenged, the Authority must demonstrate compliance with the statutory procedures governing seizure and detention; failure to do so renders the detention unlawful. 6. I associate myself with the findings of all the aforesaid decisions. 7. Turning to the present case, the Appellant’s principal complaint is that the learned trial magistrate failed to appreciate that its officers were acting pursuant to powers donated by Section 153 of the East African Community Customs Management Act (EACCMA). The Appellant contends that the questionable direction to, and reported origin, of the subject Vehicle, and hence the sugar, and the motor vehicle registration the gaps and contradictory reports from Mumias Sugar Company (hereafter the Manufacturer) created reasonable suspicion that the goods were unaccustomed, thereby justifying seizure, pending investigations. 8. It emerged from the evidence of the 1st respondent that their initial intention was to take the consignment of sugar to Habaswein for sale;*.( 1st paragraph at page 80 of the record of Appea*l) . that they later found out that the prices at Habaswein had gone down to ksh. 5,250, per bag against the respondent’s purchase price of ksh. 7, 362 per bag. 9. Further from the testimony of DW1, which was not challenged, it came out that the respondent’s vehicle was going in the direction of Meru from wajir direction. Also according to the 2nd respondent’s witness the vehicle was at Gabartulla when it was detained by the 2nd respondent. 10. Thus whether the vehicle was on the road from Wajir towards Meru or was at Garbatulla , it was evident that the vehicle was moving southwards, and in the general direction of where it ought to have come from, namely the manufacturer’s plant located at the western part of the country. In this regard the court has taken judicial Notice of this general direction in accordance with **section 60(1) ( h) of the Evidence Act.** The 2nd respondent’s suspicion on the origin of the vehicle was therefore justified. 11. The 1st respondent told the court that they had a permit from Habaswein police station. The list of documents indeed shows the alleged permit listed as document Number 5. However, I have carefully perused the lower court file and the record of Appeal and there is no such permit on record. Thus, the general direction of the vehicle against the reported place of origin formed the basis of the initial suspicion and the 2nd respondent had reasonable grounds for detaining the vehicle at that first instance. 12. The Appellant’s documents show that the 2nd respondent contacted the named manufacturer, seeking to confirm if the sugar indeed emanated from the company. Thereafter the 2nd respondent informed the Appellant who took up the investigations. 13. DW1 told the court that the initial report from the manufacturer, stated that the sugar was not from them. This report was pursuant to a “**product test”** done by Manufacturer and a report of that test dated 9th Janauary 2012 was done. The test was on samples of the consignment collected from Gabartulla police station on 7th January 2012. In the “*concluding comments”* , the report states: 1. *“From the analysis carried out, all samples failed quality test of po 1% sugar in comparison with Mumias sugar Targets.* 2. *Conclusion: This sugar is not from Mumias sugar company Ltd”.* 14. The 2nd report from Mumias sugar is dated 23rd January 2012. It was addressed to the 2nd respondent. It stated *interalia*: *“we wish to state that the sugar may be Mumias sugar”* . 15. Finally, the last and more elaborate letter from the manufacturer is dated 20th February 2012, by the legal affairs Director. The letter confirmed that the sugar was bought from the company by the 1st respondent. It also confirmed that the invoices and delivery notes were issued by them. However in reference to the delivery Note, the letter stated that the alteration on the registration number in the delivery note was not done by them , and that the original registration number of the vehicle on the delivery note was KAJ 811 N ( Emphasis added). The director concludes by stating *“ we seek your indulgence as we conduct more internal investigation into the issue”* **( pages 212 to 213 of the record of Appeal.)** (Emphasis added) 16. There was no challenge at all to the evidence presented as per the above three preceding paragraphs of this Judgment. It is the finding of this court therefore that, in the circumstances prevailing at the point of interception, and the contradictory information from the identified manufacturer and the discrepancies on the documentation, there was sufficient and reasonable basis to trigger investigations under the EACCMA. The prevailing circumstances constituted reasonable grounds within the meaning of the EACCMA. 17. I have considered the reasoning of the trial court. The trial Magistrate reasoned that since the 1st Respondent had not testified, there was no evidence of any reasonable grounds that could have justified the actions of the 2nd respondent. 18. However, the above conclusion overlooked the rest of the evidence presented. The Appellant’s document testified about the communication between Mumias sugar company and the OCS even before the OCS invited the Appellant to take up the case. Further the 1st Respondent’s own testimony indicated the fact that they changed course upon realizing that the prices of sugar at Habaswein will not realize a profit but a loss. It was erroneous therefore for the trial court to narrow itself to the absence of the OB and the OCS’s testimony to arrive at its finding, while ignoring the totality of the evidence. *Whether the 1st Respondent proved the damages awarded* 1. The trial magistrate awarded Kshs. 3,182,720/= being the aggregate award for loss arising from confiscation of 560 bags of sugar and Kshs. 2,000,000/= for loss of user of motor vehicle registration number KBH 245K. *Loss of earnings* 1. It is settled law that special damages must not only be specifically pleaded but must also be strictly proved. The Court of Appeal has repeatedly affirmed this principle in ***Hahn v Singh [1985] KLR 716****,* ***David Bagine v Martin Bundi [1997] eKLR****, and* ***Capital Fish Kenya Limited v Kenya Power & Lighting Company Limited [2016] eKLR****.* 2. In respect to the award of ksh. 1,182, 720 for loss earnings on sugar, the 2nd respondent’s case was that it would have sold at ksh. 7,362 but ended up selling at ks. 5,250. It attributed this loss to the detention of the commodity. However, the 1st respondent’s witness told the court that the return journey from Habaswein was necessitated by the discovery that the price of sugar had fallen from ksh. 7,362 to ksh. 5,250. Upon release, he sold it for the latter price of ksh. 5,250. Thus, by his own admission, he sold it at the price pre- existing before the detention of goods. Further the 1st respondent never led any evidence showing the price difference in the sugar market between the date of detention of the goods and that of release. 3. The law on special damages is well settled. They must be specifically pleaded and strictly proved. The pleading in this case was sufficient, but there was simply no proof of the loss. 4. Consequently, the award of Kshs. 1, 182,720= representing the full value of the sugar had no evidential basis. *Loss of user* 1. On the loss of user, the 1st respondent pleaded ksh. 60,000. When it came to the evidence its witness told the court: “that *it used to make* *like* ksh. 60,000 pe day; That “*that is what the owner claimed*.” That was all there was by way of proof. He had earlier told the court that he had hired the vehicle from a Mr. Mohammed. The trial court estimated the loss at ksh. 2,000, 000 for the period of detention. 2. This court is alive to the varied findings of the courts on whether loss of use of a chattel is in the nature of general or special damages. The trial court took the position that it is in the nature of general damages and relied on a number of decisions by both the high court and court of Appeal. There are other instances however where the court of Appeal has held that it is in the nature of special damages. In the case of ***Unga Limited & another v James Njuguna Njoroge [2012] KECA 96 (KLR)***the court of Appeal held: *“ The loss of user is a specific loss that a claimant has incurred by getting an alternative means of livelihood either through hire of another vehicle; or the amount lost due to the loss of the user if no alternative vehicle was hired should be proved through records of previous earnings by the same vehicle”.* 3. In the present case the court has considered with the claim of ksh. 60,000 per day, sought. What was the basis of this claim? According to PW1 it was what the owner of the vehicle demanded. However, there was no car hire agreement that was produced. Thus, there was no basis of the claim of ksh. 60,000 daily. 4. Further, whereas it emerged from the witnesses of both sides that the vehicle was detained on 16/11/2011, there was no evidence on when it was released. In the plaint the Appellant pleaded that the vehicle was held for 51 days, in his testimony, he stated that it was held for 53 days, pursuant to a court order, but without indicating the date of release. 5. I agree with the Appellant that the award was speculative. Even if one was to consider it as a general damage as opposed to special damage, there must be a basis for making an estimated award. Notably the trial court accepted the 51 days without ascertaining whether the said period of detention had been proved. The allegation of 51 or 53 days without evidence of when the vehicle was actually release was insufficient to form a basis of the award of ksh. 2,000,000. 6. The plaintiff must prove his or her case. That is the law. And the standard is on a balance of probabilities. The balance of probabilities was well articulated in the case of Palace ***Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR***, the Judges of Appeal held that: *“****Denning J, in Miller v Minister of Pensions [1947] 2 All ER 372*** *discussing the burden of proof had this to say;-“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not.This burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.”* *The question of locus standi* 1. Related to the preceding issue is the question of whether the 1st respondent was entitled to the claim for loss of user. The answer to this question depends on the terms of the hire agreement referred to, but not produced, in evidence. Lawful possession may, in appropriate cases, entitle a party to recover proven commercial losses arising from interference with its business. 2. It was the respondent’s own admission that he was not the owner of the vehicle but he had hired it from a Mr. Mohammed. The questions which remain unanswered include: how long was the vehicle hire agreement? When did it start and when was it to end? If the agreement was subsisting past the date of seizure and extending up to or beyond the date it was released the 1st Respondent would have been entitled to claim the loss, as he would have been entitled to its use for the given period. However, if the agreement was ending on the date of seizure the 1st respondent would have had no locus standi to claim for the said loss. 3. Having failed to produce the said agreement, then the 1st respondent failed to establish that he had the locus standi to claim for loss of use. *Whether liability ought to have been apportioned* 1. The Appellant and the 2nd respondent discharge separate statutory mandates, and their level of intervention in respect of what is being hauled on the roads are different at any given time. 2. Am in agreement that based on the facts and circumstances of each case, a court should be able to apportion the percentage of liability of each player. The court observes for instance that there is evidence that even though the vehicle was intercepted on 11th November 2011, the Appellant was only informed of the incident on 13th January 2022. The 2nd respondent was therefore accountable for the period between 16 /11/2011 and 13/01/2012 when the Appellant took over the investigations. 3. Thus, the trial court was obliged to evaluate the distinct roles played by each Defendant before entering judgment jointly and severally. 4. However, in the light of the court’s findings that the seizure and investigations were justified under the EACCMA and that the damages awarded were unsupported by the evidence, the question of apportionment ultimately becomes academic. 5. Upon my independent evaluation of the evidence am satisfied that the 2nd respondent failed to meet the threshold of proof and the findings on liability and damages by the trial court was erroneous. 6. Consequently, the appeal succeeds. And I hereby proceed to make orders as follows: a). The Judgment of the Chief Magistrate delivered on 11th December 2023 in Isiolo CMCC No. E005 of 2021 is hereby set aside in its entirety. b). In its place, an order is hereby issued dismissing the 1st respondent ‘s suit with costs. c). The Appellant shall have the costs of this appeal. Dated , signed and delivered at Isiolo this 9th day of July 2026. S. Chirchir Judge In the presence of : Barako Huka- Court Assistant Ms. Mwongela for the Appellant Ms. Muriuki for the 1st Respondent.