[2022] KEHC 2963 (KLR)

Mbati & another v Inspector General Police & 2 others (Petition 258 of 2019) [2022] KEHC 2963 (KLR) (Constitutional and Human Rights) (13 May 2022) (Judgment)

Neutral citation: [2022] KEHC 2963 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition 258 of 2019

HI Ong'udi, J

May 13, 2022

Between

Alfred Daniel Mbati

1st Petitioner

Aggrey Asibiko

2nd Petitioner

and

Inspector General Police

1st Respondent

Director of Criminal Investigation

2nd Respondent

Attorney General

3rd Respondent

Judgment

1. The petition dated 21st June 2019 was filed under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, Articles 9, 11 & 13 of the Universal Declaration of Human Rights, Articles 4 and 6 of the African Charter on Human and People’s Rights and Articles 7, 9, 9(2) & 10 of the International Covenant on Civil and Political Rights. This is for the alleged contravention of the petitioners’ right to ownership and legitimate expectation, under the Constitution of Kenya.

2. Accordingly the petition seeks the following orders: -a)A declaration to be issued to the 1st and 2nd respondent for breach of the petitioners’ right to dignity, property, fair administrative action and privacy.b)An order of mandamus to be issued to the 1st respondent to compel them to release motor vehicle registration number KAL 112Z, unconditionally to the petitioners’ in good state.c)An order of prohibition be issued to the 1st and 2nd respondent from abusing state powers and harassing and intimidating the petitioners’.d)General damages for violation of constitutional petitioner’s right and fundamental freedoms.e)General damages for loss of income to the petitioners due to unlawful impounding of their motor vehicle by the 1st respondent.f)Costs of this petition.

The Petitioners’ case 3. The petitioners’ case as supported by the 1st petitioner’s affidavit sworn on 21st June, 2019 is founded on the fact that the 1st respondent impounded his motor vehicle registration No. KAL 112Z an orange Mitsubishi bus, on unsubstantiated grounds.

4. He depones that he purchased the vehicle from Moran Auctioneers on 25th February 2017 at a public auction at the Kenya Bus Management Garage. Upon payment of the required amount of Ksh.400,000 the ownership of the vehicle was transferred to him by Moran Auctioneers. Further that there was a statutory notice on this auction published in the Kenya Gazette.

5. He avers that he registered the vehicle with Ebeneza Sacco to operate as a public service vehicle on the Nairobi - Busia route for one year. He later on changed the vehicle’s route to be within Nairobi in January 2019 and registered it under Obamana Sacco.

6. He avers that a claim of the right to ownership over the vehicle was not challenged by anyone. Further, no objection raised when the statutory notice was published in the Kenya Gazette. He avers that in spite of this, his vehicle was impounded by the 1st respondent at the Mwangaza S.D.A Church of Kayole where he was keeping it. It was taken to Buru Buru police station. All this was done without his consent.

7. He in addition avers that prior to this event, the 1st respondent’s officer known as Gordon Odoyo working with the Nairobi Flying Squad Area had called his wife, Victoria Airo Were on 12th January 2019 demanding kshs.500,000/= to avoid impounding of the vehicle.

8. He deponed that being uncomfortable with the 1st respondent’s actions, he sought to be furnished with reasons for their actions in a letter dated 8th March 2019. The same was not responded to. Their attempts to record statements in various police stations has been futile.

9. He averred that the 1st respondent’s actions were arbitral, malicious and unlawful with the purpose of defeating their right of ownership of the motor vehicle. He adds that the 1st respondent’s actions are intent on undermining the rule of law as the police should not forcefully impound property without furnishing the aggrieved person with reasons for their actions. He urges the Court to intervene so that the 1st respondent does not continue infringing upon his rights to property, protection of the law and legitimate expectation.

The Respondents’ Case 10. The respondents filed their replying affidavit dated 9th September, 2019 through PC Nicolas Mwangi Njenga, the investigating officer. He avers that this case is one of suspected stolen property contrary to Section 323 as read together with Section 36 of the Penal Code.

11. He depones that on 13th January 2019, PC/DRV Chumba, PC Kiguru, PC Wekesa and PC Gordon Odoyo also police officers from the Flying Squad acting on information they had received intercepted motor vehicle KAL 112Z an orange Mitsubishi Bus. It was suspected that the vehicle had been registered fraudulently. It was then towed to Buru Buru Police Station and booked vide OB 02/13/01/2019.

12. He avers that the investigations were commenced on 22nd February 2019 by PC Bushein who recorded statements from Victoria Airo Were and the 2nd petitioner, who were the representatives of the 1st petitioner during purchase of the said vehicle. The 2nd petitioner who is a cousin to the 1st petitioner, produced a copy of the logbook, auctioneer’s documents, a copy of the Gazette Notice No.346 dated 12th January 2017, a copy of Co-operative Bank deposit slip of Ksh.400,000 dated 4th January 2017 and other documents.

13. He further avers that upon perusal of the submitted logbook, it was noted that the said motor vehicle, KAL 112Z was a blue Mitsubishi station wagon, serial No.K1454988M and registered under the 1st petitioner’s name. Following this discovery the investigating officer wrote to the Director of Registration and Licensing National Transport and Safety Authority to establish ownership of Motor Vehicle No. KAL 112Z. He discovered that the vehicle was imported and had been registered under two previous owners before the 1st petitioner and had a series of logbooks. In addition he states that he wrote to Simba Colt Motors, the authorized Mitsubishi vehicle importers on 13th May 2019 and they denied having imported the said vehicle.

14. He deponed that further investigations revealed that the car had been auctioned by Moran Auctioneers as narrated by the 1st petitioner and that the Gazette Notice was indeed authentic. He averred that the said vehicle KAL 112Z was listed in the Gazette Notice as a blue station wagon not a bus. That this error was corrected by National Transport and Safety Authority (NTSA) a few days after the vehicle had been impounded and investigations had begun.

15. He deposes that on 22nd July 2019 vide CMCC Miscellaneous Application No.2995 of 2019; Flying Squad Unit v Mbati Alfred Daniel & 7 others, he obtained a Court order. It authorized access to and obtaining of certified copies of account opening documents and certified bank account statements of account No.011xxxxxxxxxx for the period between 1st January 2017 to 30th January 2017. A transaction of Ksh.400,000 was noted to have been transferred to the Auctioneer’s advocates by Victoria Airo Were.

16. He avers that the respondents acted as required by the law in carrying out their functions. He further avers that the petition does not raise any violation of the petitioner’s fundamental rights by the respondents and so is an abuse of the court process.

17. The 1st petitioner in response filed a further affidavit denying the 1st respondents allegations and stating that he resides in Kuwait, the reason why he was represented by his wife, Victoria Airo Were and the 2nd petitioner.

The Petitioners’ Submissions 18. On behalf of the petitioners, the firm of Khaminwa and Khaminwa Advocates filed written submissions dated 25th October 2019. The following are the issues identified for determination:-i.Whether the 1st petitioner has proprietary rights in Motor Vehicle, Registration No. KAL 112Z;ii.Whether the 1st respondent abused their rights in detaining the petitioner’s vehicle without any Court Order in January 2019;iii.Whether the 1st petitioners rights to property, privacy, dignity and fair administrative actions were violated by the 1st respondent; andiv.Whether the 1st petitioner is entitled to compensation.

19. On the first issue learned Counsel submits that the evidence adduced in the 1st petitioner’s supporting affidavit being a copy of the logbook and a consideration of Ksh.400,000 in the public auction proves ownership of the said vehicle by the 1st petitioner. This he submits is also proved by the averments of the investigating officer P.C. Njega in the respondents’ replying affidavit.

20. Counsel submits that Article 40 of the Constitution secures an individual’s right to acquire property which should not be arbitrarily deprived from the owner. Further, that the 1st respondent’s action was unjustified as there was no other person who claimed ownership of the vehicle. He was supplied with all the legal documentation by the petitioners. It is his view hence that seizure of the 1st petitioner’s vehicle had no legal basis and an act of impunity on the part of the 1st respondent.

21. In support reliance was placed on the case of Keroche Industries’ v Kenya Revenue Authority(2007) eKLR where it was appreciated that one of the qualities of the rule of law was certainty of the law as deprivations of individual interests in property must be accompanied with appropriate safeguards that ensure certainty and regularity of the law.

22. Moving on to the second issue, Counsel argues that the vehicle was impounded without regard for the law and due procedure as no warrant or court order was issued before impounding the vehicle in line with Section 118 of the Criminal Procedure Code. It is his argument therefore that the 1st respondent acted in excess of his power. In support thereof counsel cited Standard Newspaper Limited v Attorney General (2013) where it was noted that prior to conducting searches and seizures, police officers are required to obtain a search warrant from a judicial officer upon proof on oath that there is reasonable suspicion of commission of an offence.

23. As a consequence he argues that the 1st respondent violated the 1st petitioner’s right to property as enshrined under Article 40 of the Constitution and right to privacy under Article 31 of the Constitution. He submits therefore that state officials are not entitled without good cause to invade the premises of persons for the purposes of searching and seizing property as there would be otherwise little content left to the right to privacy as held in the South African case of Investigating Serious Economic crimes v Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others (CCT 1 of 2000) [2000] ZACC 12. He submits that the 1st petitioner had a legitimate expectation that the 1st respondent would follow the due procedure in detaining his vehicle.

24. He submits on the third issue that the 1st petitioner has been subjected to financial and psychological suffering due to the 1st respondent’s actions. In addition, he has been subjected to torture, cruelty and treated in a degrading manner as the 1st respondent continues to contend that this vehicle is stolen property. Counsel contends that there is also a violation of the Petitioner’s right to being treated equally with others in law as provided under Article 27 of the Constitution. As such, Counsel argues that the 1st respondent’s actions were unreasonable and procedurally unfair and contrary to Article 47 of the Constitution. It is his argument thus that state organs must respect the rule of law as emphasized in the case ofRepublic v Kombo & 3other ex parte WaweruNairobi HCMCA NO.1648 of 2005(2008) 3 K.L.R(EP)478.

25. On the last issue, Counsel submits that this Court has unfettered powers to ensure that the 1st petitioner is compensated for the violations of his rights by the 1st respondent as appreciated by the Court in the case of Madara Evans Okanga Dondo v Housing Finance Company of Kenya [2005] eKLR. He submits that the evidence proves that the 1st respondent violated the 1st petitioner’s rights without reasonable grounds. The manner in which he impounded the 1st petitioner’s vehicle is very clear.

26. As a result the 1st petitioner has incurred financial loss because he has been unable to use his vehicle for commercial purposes. He ought to be compensated for the violation of his rights. In support counsel relied on the case of M.W.K v Attorney General and others (2017) on award of damages.

The Respondents’ Submissions 27. Learned state counsel, Patricia A. Chibole, on behalf of the respondents filed written submissions dated 24th October 2019. She identified the following as the issues for determination:-i.Whether the respondents’ conduct constitutes a violation and contravention of the Constitution; andii.Whether this Court should issue the orders sought in the petition.

28. On the first issue Counsel submits that the respondents’ conduct did not constitute violation of the 1st petitioner’s rights. This is since the petitioner has failed as required by the case of Anarita Karimi Njeru v R(1976-1980)KLR 1272 to state and identify the rights alleged to have been violated with precision and the manner in which the rights were violated. Additional support was placed on the case of Abuya Abuya v Independent Electoral and Boundaries Commission & another [2014] eKLR which echoed the principle in the Anarita case.

29. Further that the 1st and 2nd respondents acted within their power as provided under Section 24 and 35 of the National Police Service Act and so cannot be said to have been in violation of the petitioner’s rights when they were rightly performing their duties. This was set out by the fact that the police officers of the Flying Squad Unit Criminal Investigation Department while acting on information intercepted motor vehicle No. KAL 112Z a Mitsubishi orange bus on suspicion that it was registered fraudulently. This was crystalized by the fact that the said vehicle details on the log book showed it was a blue station wagon and not an orange minibus.

30. Turning over to the second issue, Counsel submits that one of the prayers sought is prohibition of the 1st and 2nd respondents from abusing state powers and harassing and intimidating the petitioners. Considering this, it is her submission that the National Police Service can only be subject to the control of this Court based on the principles of illegality, irrationality and procedural impropriety which has not been demonstrated by the petitioners in this case. She adds that judicial intervention should be limited to acts that are manifestly in breach of the law.

31. Counsel notes that the criminal process provides a process of an appeal where the accused is aggrieved by the decision in question and moreover an avenue for compensation through a claim for malicious prosecution as held in the case of Erick Kibiwott Tarus & 2 others v Director of Public Prosecutions & 7 others(2014)eKLR.

32. Lastly on the issue of special damages Counsel notes that no receipts of income have been tendered before the Court as evidence of financial loss. As such she contends that such damages must not only be claimed but proved strictly as held in the case of Bangue Indosuez v DJ Lowe & Company Ltd (2006)2 KLR 208.

Analysis and Determination 33. Having carefully considered the pleadings, responses, rival submissions, cited decisions and the law I find the following to be the issues for determination:-i.Whether the 1st petitioner’s rights were violated, threatened and infringed upon by the 1st respondent’s; andii.Whether the 1st petitioner is entitled to the reliefs sought.

Whether the 1st Petitioner’s rights were violated, threatened and infringed upon by the 1st Respondent 34. The 1st petitioner’s principal contention is that the 1st respondent’s actions violated his constitutional right to equality under Article 27, right to human dignity under Article 28, right to privacy under Article 31, right to property under Article 40 and the right to fair administrative action under Article 47 of the Constitution.

35. In order to ascertain the aforementioned claims, this Court will have to ascertain whether the 1st respondent’s actions were legally sound and whether the material placed before it demonstrates violation of the 1st petitioners rights under the cited Articles.

36. One of the organs charged with the maintenance of national security in Kenya in Article 239 (1) (c) of the Constitutionis the National Police Service which is established under Article 243 of the Constitution. This body is commanded by the Inspector General as provided in Article 245(1) (b) of the Constitution. Article 245(4), (a) of the Constitutionprovides one of the functions of the Inspector General as follows:-(4)The Cabinet secretary responsible for police services may lawfully give a direction to the Inspector-General with respect to any matter of policy for the National Police Service, but no person may give a direction to the Inspector-General with respect to—(a)The investigation of any particular offence or offences;

37. The National Police Service Act, 2011 which gives effect to the operations of the National Police Service under the Constitutionprovides for the functions of the police under Section 24 while those of the Directorate of Criminal Investigation are under Section 35 of the Act.

38. The functions of the 1st respondent read as follows under Section 24 of the Act, read as follows:-(a)provision of assistance to the public when in need;(b)maintenance of law and order;(c)preservation of peace;(d)protection of life and property;(e)investigation of crimes;(f)collection of criminal intelligence;(g)prevention and detection of crime;(h)apprehension of offenders;(i)enforcement of all laws and regulations with which it is charged; and(j)performance of any other duties that may be prescribed by the Inspector-General under this Act or any other written law from time to time.

39. The functions of the 2nd respondent, as provided under Section 35 of the Act are:(a)collect and provide criminal intelligence;(b)undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cyber crime among others;(c)maintain law and order;(d)detect and prevent crime;(e)apprehend offenders;(f)maintain criminal records;(g)conduct forensic analysis;(h)execute the directions given to the Inspector-General by the Director of Public Prosecutions pursuant to Article 157 (4) of the Constitution;(i)co-ordinate country Interpol Affairs;(j)investigate any matter that may be referred to it by the Independent Police Oversight Authority; and(k)perform any other function conferred on it by any other written law.

40. From the foregoing, it is clear that the 1st and 2nd respondents have a constitutional mandate among other functions to ensure the security of the nation by investigating any crimes and offenses suspected to have been committed by any person.

41. This mandate has been appreciated and recognized by the Courts as seen in the case of Daniel Ogwoka Manduku vs Director of Public Prosecutions & 2 others [2019] eKLR where it was opined as follows:-“The powers of the police to investigate a crime cannot be challenged because the police is there principally to combat crime. It is therefore not possible to stop any criminal investigations unless the foundation of such investigations is malicious or is an abuse of power.51. Odunga J. in Isaac Tumunu Njunge v Director of Public Prosecutions & 2 others [2016] eKLR, said with regard to the power of the police to investigate:“42. It is however my view that the police are clearly mandated to investigate the commission of criminal offences and in so doing they have powers inter alia to take statements and conduct forensic investigations. In order for the applicant to succeed he must show that not only are the investigations which were being done by the police are being carried out with ulterior motives but that the predominant purpose of conducting the investigations is to achieve some collateral result not connected with the vindication of an alleged commission of a criminal offence…..”In Pauline Adhiambo Raget v. DPP & 5 Ors., (2016) eKLR, a case where breach of right to equality was alleged to have been violated by investigations of an offence, Onguto J. held, and I agree, that-“I have also been unable to see how in investigating an alleged criminal conduct or activity there could be discrimination or a practice of inequality before the law. The respondents are enjoined to investigate any allegations of criminal activity or conduct both by statute as well as by the Constitution. The investigations may take them to anyone including the petitioner. They could investigate on their own prompting or upon being prompted by any member of the public as did the interested party in this case. In so doing, it is a legal mandate they would be undertaking.”

42. In Commissioner of Police & the Director of Criminal Investigation Department & another v Kenya Commercial Bank Ltd & 4 others [2013] eKLR, the Court of Appeal pronounced itself as follows:-“That is why courts in this country have consistently held that it would be an unfortunate result for courts to interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. The courts must wait for the investigations to be complete and the suspect charged.”

43. The Court went further to note that:-“It has further been held that an oppressive or vexatious investigation is contrary to public policy and that the police in conducting criminal investigations are bound by the law and the decision to investigate a crime (or prosecute in the case of the DPP) must not be unreasonable or made in bad faith, or intended to achieve ulterior motive or used as a tool for personal score-settling or vilification. The court has inherent power to interfere with such investigation or prosecution process.”

44. It is reasonable to infer therefore that courts will not be quick to interfere with the mandate of the 1st and 2nd respondents if the function was carried out within the confines of the law. Where it is found that they acted within their mandate then this Court is obliged to step back and allow the organs to carry out their roles.

45. Perusal of the material presented before this Court by the 1st petitioner reveals that the petitioner did indeed purchase the vehicle. It is also ascertained that the 1st respondent’s officers acted on information they had received with regard to the vehicle as can be seen from the covering report annexed to the 1st respondent’s affidavit, (Annexture NMN1). The investigating officer then proceeded to take statements from the 1st petitioner’s wife and the 2nd petitioner on the matter and received the necessary documentation.

46. Upon receipt of the documents it was noted that there was a discrepancy between the details of the vehicle in the log book, gazette notice and the actual vehicle. A further perusal shows that the investigating officer wrote to a number of persons at the investigation stage in an effort to establish the veracity of the matter.

47. The question therefore that should be answered at this juncture is whether the 1st respondent violated the 1st petitioner’s rights under Article 27, Article 28, Article 31, Article 40 and Article 47 of the Constitution. These Articles provide as follows:-Article 27 of the Constitutionreads as follows:1)Every person is equal before the law and has the right to equal protection and equal benefit of the law.Article 28 of the Constitutionprovides:Every person has inherent dignity and the right to have that dignity respected and protected.Article 31 of the Constitutionstates that:Every person has the right to privacy, which includes the right not to havea)their person, home or property searched;b)their possessions seized;c)information relating to their family or private affairs unnecessarily required or revealed; ord)the privacy of their communications infringed.Article 40 of the Constitutionsays:(1)Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own propertya)of any description; andb)in any part of Kenya.(2)Parliament shall not enact a law that permits the State or any person(a)to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description;(b)or to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27 (4).Article 47 of the Constitutionprovides that:(1)Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.(2)If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action. 48. From the facts of this case, it is clear that the 1st petitioner has shown that he is the legally registered owner of the said vehicle KAL 112Z which he acquired through a public auction. It is also not disputed that the 1st and 2nd respondents have mandate to investigate suspected criminal activity. From the 1st respondent’s affidavit it is shown that the police acted on information they had received on an alleged crime of stolen property. The investigating officer informed the court of the discrepancy they found through their investigations and the process they undertook to ascertain the facts of this matter. The 1st respondent in addition shared their evidence by submitting a record of their investigation documents including witness statements.

49. The replying affidavit relied upon by the 1st respondent demonstrates that the action of impounding the vehicle was not an idle one and was in line with the respondents functions as espoused under the National Police Service Act. Owing to this I find that the 1st respondent’s actions were lawful and reasonable within the meaning of Article 24 of the Constitution to justify limitation of the 1st petitioner’s rights under Article 27, Article 28, Article 31, Article 40 and Article 47 of the Constitution. It is worthy to note also that these rights do not fall under the unlimited rights envisaged in Article 25 of the Constitution.

50. In the same way, although the 1st petitioner claims that the due process was breached, he has not demonstrated the manner in which the 1st respondent’s conduct was contrary to that espoused in the law or how his rights were particularly breached. Other than proof of ownership of the vehicle the 1st petitioner has failed to adduce evidence to support his other allegations. Reasonably mere statements such as a phone call by one of the police officers to issue Ksh.500,000 do not suffice as evidence. More evidence like support from the service provider would have substantiated the claim. He has not adduced sufficient evidence to show the unconstitutional exercise of the 1st respondent’s power which could appear to a reasonable man to be deployed for an ulterior or collateral motive other than that of advancing the ends of justice.

51. The 1st respondent’s actions cannot therefore be condemned as both were procedural and lawful. In fact failure by the 1st respondent’s officers to carry out the investigations would have amounted to violation of their constitutional mandate as provided under Article 245 of the Constitution and Section 24 and 35 of the National Police Service Act.

52. It is rational to infer in conclusion that based on the material placed before this Court, the 1st petitioner has not sufficiently demonstrated and proved violation by the respondents of his fundamental rights under the cited Articles. Additionally the respondents for the reasons stated in this analysis did not contravene their powers and mandate but acted within the Constitution and law confines. I therefore find that the respondents did not violate the 1st petitioner’s rights under Article 27, Article 28, Article 31, Article 40 and Article 47 of the Constitution of Kenya, the International Covenant on Civil and Political rights, Universal Declaration of Human Rights inter alia.

Whether the 1st Petitioner is entitled to the reliefs sought 53. On the premise of this finding, I find that the 1st petitioner is not entitled to the reliefs sought in this petition save for prayer no.r (b) which was granted by Weldon Korir J, vide a Court Order dated 8th May 2020.

I therefore dismiss the petition with order as to costs.Orders accordingly.

DELIVERED VIRTUALLY, SIGNED AND DATED THIS 13TH DAY OF MAY 2022IN OPEN COURT AT MILIMANI, NAIROBI.H. I. ONG’UDIJUDGE OF THE HIGH COURT