[2022] KEHC 14976 (KLR)

Nganatha v Director of Criminal Investigations & another (Miscellaneous Civil Application E083 of 2021) [2022] KEHC 14976 (KLR) (2 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14976 (KLR)

Republic of Kenya

In the High Court at Nyeri

Miscellaneous Civil Application E083 of 2021

JN Njagi, J

November 2, 2022

Between

Eusevious Karugu Nganatha

Applicant

and

Director of Criminal Investigations

1st Respondent

Attorney General

2nd Respondent

Ruling

1. The applicant has filed an application dated November 2, 2021 seeking for orders that;1)Spent2)That an order be issued directing the 1st respondent through its Nyeri Office to forthwith release the applicant’s motor vehicle registration No KCN 012U.3)That this honourable court be pleased to make any further orders as may be expedient to preserve the interests of justice.4)That the 1st respondent bears the cost of this application.

2. The application is based on the grounds that the officers of the 1st respondent have detained the applicant’s motor vehicle at their Nyeri yard for no apparent reason. That the applicant had bought the said motor vehicle from one James Njoroge Kinyanjui vide an agreement dated July 24, 2020, marked EKN1. That sometimes back the applicant obtained a soft loan of Kshs 350,000/= from one Jane Wambui Waginga. That when he failed to pay back the loan, the said Jane Wambui Waginga lodged a complaint with the officers of 1st respondent. The applicant was summoned to the 1st respondent’s Nyeri Office. He explained that he was indebted to the said lady and he was willing to pay back the money when his customers paid him. That he was kicked out of the office and his car detained as “security” for the loan.

3. The applicant contends that the detention of his vehicle by officers of the 1st respondent is an abuse of power since the issue between him and Jane Wambui Waginga is purely contractual which can be addressed through a civil claim.

4. The application was opposed by the respondent through the replying affidavit of one John Gacheru who is the Officer in-Charge of Nyeri Central Sub-County DCIO Office. The officer says that they received a complaint from one Jane Wambui Waginga that the applicant had obtained Kshs 350,000/= from her. That they are investigating the matter. That the applicant was arrested with motor vehicle registration No KCN 012U. That preliminary investigations indicate that the motor vehicle is a proceeds of crime. That the applicant has admitted receiving a soft loan from the complainant. That the applicant absconded upon the motor vehicle being detained. That the motor vehicle is being detained as an exhibit in the matter. That the applicant has refused to appear before their office for investigations to be finalized.

5. The applicant however says that the motor vehicle was purchased long before the loan was advanced.

6. I have considered the application and the grounds in opposition thereto. There is no dispute that the 1st respondent has detained the applicant’s motor vehicle after a complaint was lodged by one Jane Wambui against the complainant over a sum of Kshs 350,000/=. The applicant says that the money was a soft loan from the said Wambui and that there was no connection between the money and the motor vehicle. That the officers of the 1st respondent detained the motor vehicle as a means of pressuring him to pay the money.

7. The 1st respondent on their part contend that the complaint was about money. That the applicant was found with the motor vehicle which they suspect was proceeds of crime.

8. From the depositions of the respective parties, it is clear that the 1st respondent has not shown that they have a lawful reason for detaining the motor vehicle. What has been shown is that there is a dispute between the applicant and a certain lady called Jane Wambui over a sum of Kshs 350,000/=. Cpl John Gacheru has not filed a statement from the said Jane Wambui to explain the terms under which she gave the money to the applicant. There is then no denial that the money was a soft loan that Jane Wambui extended to the applicant. The affidavit of John Gacheru does not disclose the crime that the applicant is suspected to have committed. The officer then cannot be detaining the motor vehicle for a non-disclosed crime. There is nothing to show the connection between the money and the motor vehicle.

9. From the evidence placed before the court the only conclusion that the court can make is that the 1st respondent has detained the motor vehicle so as to exert pressure on the applicant to pay back the money to Jane Wambui. That is a civil debt of which it is none of the 1st respondent’s concern. I thereby find that the detention of the motor vehicle by the 1st respondent is unlawful and an abuse of power.

10. In view of the above, there is every reason to allow the application. The 1st respondent is thereby ordered to unconditionally release the applicant’s motor vehicle registration number KCN 012U forthwith.

Signed March 17, 2022. J N NJAGIJUDGEDELIVERED, DATED AND SIGNED AT NYERI THIS 2ND DAY OF NOVEMBER, 2022. By:HON JUSTICE M MUYAJUDGEIn the Presence of;Gatinge Muthee: for ApplicantGasomba for RespondentsCourt Assistant: Kinyua30 days R/A