https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11373

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAJIADO** **PETITION NO. E018 OF 2024** **FELIX OCHIENG’ OSUR .......................................................... PETITIONER** **-VERSUS-** **ATTORNEY GENERAL** **ON BEHALF OF THE NATIONAL POLICE SERVICE …….. 1ST RESPONDENT** **S.K. CHEGE BREAK DOWN SERVICE …………………....2ND RESPONDENT** **JUDGMENT** **BACKGROUND** 1. The petitioner herein filed a petition dated 22.10.2024 seeking the following orders: 1. Spent. 2. Spent. 3. Spent. 4. That the Honourable Court issues an order for compensation for the unlawful detention of the petitioner’s motor vehicle KAR 082P. 5. That the respondents be condemned to pay costs of suit together with interest. 6. Any other relief that this Court may find just to grant. **THE FACTS** 1. The basis of this petition is anchored on the following facts. On 30.09.2024, at approximately 5.30 p.m., the petitioner was driving his motor vehicle registration number KAR 082P when one of its tyres struck a stone and became deflated. Confronted with both a flat tyre and an empty fuel tank, and being without immediate means to effect repairs on the spot, the petitioner did what any reasonable person in his circumstances would do — he secured the vehicle as close to the side of the road as possible, outside his neighbour’s fence along a murram road, and left to get assistance. Upon returning to the scene later that evening, he was met with an unwelcome discovery: his vehicle had already been towed away. He traced it to Isinya Police Station, where he found it in a damaged condition — the front bumper broken and all tyres deflated — bearing the scars of what he described as reckless towing. 2. The petitioner testified (as PW1) that at the Police Station, instead of being informed of any charge or offence he had allegedly committed, he was directed to the 2nd respondent, a private breakdown service, and presented with a bill of Kes. 28,500/- for towing over a distance of approximately eighteen kilometres — a sum the petitioner considered exorbitant and unjustifiable. He declined to pay and sought the court’s protection. 3. The respondents did not participate in the proceedings herein despite being duly served. **SUBMISSIONS** 1. In submissions dated 15.09.2025, counsel for the petitioner argued that the police officers abused their authority by detaining the petitioner’s motor vehicle for the benefit of the 2nd respondent, thereby advancing private commercial interests under the colour of public authority. Counsel relied on ***Ali Mohamed Bereki v Attorney General* [2009] KEHC 2785 (KLR)**, where the court held: 1. **‘If the ex parte applicant committed a traffic offence or any other offence, he could have been charged before court. But he did not. The involvement of the traffic police should have come to an end and [the police] released the said motor vehicle to the ex parte applicant. They did not do so on the ground that towing charges due to a private body be paid before the motor vehicle could be released. The traffic police at Kilifi, in insisting that towing charges be paid to a private body before they could release the said motor vehicle, were not enforcing any traffic rule or section under the Traffic Act or any other provision of the law. They were using their position as police officers for a collateral purpose to advance the private interests of the private body. Their conduct is a clear abuse of power …’** 2. Counsel further contended that the use of police authority to detain the vehicle violated the petitioner’s constitutional rights under Articles 40 and 46 of the Constitution of Kenya. It was submitted that comparative towing rates annexed to the petitioner’s affidavit established that a reasonable charge for the distance covered would have been Kes. 6,000/-, which the petitioner was willing to pay. The demand for Kes. 28,500/- was therefore described as extortionate and a breach of the petitioner’s consumer rights. 3. On quantum, counsel urged this court to award Kes. 500,000/- in compensation, referencing ***Mohamed Feisal & 19 others v Henry Kandie & others [2018]*** for the proposition that compensation for constitutional rights violations should be both general and exemplary so as to deter future infringements. Reliance was also placed on ***Moses Kipkoech Rotich v Kenya National Highways Authority & others* [2018] KEHC 2767 (KLR),** in which this court awarded Kes. 3,000,000/- for violation of property rights over a period of ten months. **ISSUES FOR DETERMINATION** 1. Having carefully considered the pleadings, the testimony of PW1, the written submissions, and the applicable law, I find the following to be the issues falling for determination: 1. Whether the petitioner’s constitutional rights were violated; and 2. Whether the petitioner is entitled to compensation, and if so, in what amount. **ANALYSIS AND DETERMINATION** **Issue 1: Whether the petitioner’s constitutional rights were violated** 1. No provision of the Traffic Act Cap. 403 or any other written law in Kenya criminalizes a tyre deflation, a mechanical breakdown, or the misfortune of running out of fuel. Calamity on the road is not a crime. A driver who experiences a burst tyre does not, by that mere fact, become a lawbreaker. And yet, the conduct of the respondents in this case would suggest otherwise — for they treated the petitioner’s vehicular misfortune as an occasion for detention, financial extraction, and the sustained deprivation of his property rights. 2. Section 53 of the Traffic Act makes provision for vehicles that break down on public roads. It imposes duties on the driver: to remove the vehicle from the road as soon as possible, to draw it as close to the side of the road as possible, and to ensure that it is properly lit and marked during the hours of darkness. The section contemplates the reality that breakdowns happen. It does not criminalize the fact of a breakdown. To the contrary, it prescribes a measured, proportionate response: the driver is to exercise reasonable diligence in securing the vehicle and removing it from the roadway. Section 53(4) creates an offence only where a person leaves a vehicle on a road *in such a position or manner or in such a condition as to cause or to be likely to cause any danger to any person*. This was a vehicle parked beside a murram road, outside a neighbour’s fence. There is no evidence whatsoever that it posed any danger to any person. 3. The petitioner did what a responsible citizen in his situation was expected to do. He secured his vehicle at the roadside. He left to procure assistance. He intended to return. He was not abandoning his vehicle. He was not obstructing the road. He was not endangering other motorists. He was managing, as best he could, an unanticipated mechanical misfortune. One is compelled to ask: what, precisely, had this man done wrong? The answer, scrutinized against any provision of the Traffic Act, is nothing. 4. And yet, the police towed his vehicle. Why? The petitioner was never charged with any offence — not for obstruction under Section 53, not for any other traffic infringement, not for any offence at all. If a traffic offence had truly been committed, the prescribed remedy would have been a charge before a court of law. That did not happen. What happened instead was this: the vehicle was towed, detained at Isinya Police Station, and its release conditioned not on the satisfaction of any legal obligation owed to the State, but on the payment of a commercial fee to a *private* breakdown company. The police did not enforce the law. They enforced the commercial interests of the 2nd respondent. 5. This court is therefore bound to ask, with some sternness: under what lawful authority was this vehicle towed? Put it differently, what legal basis did the 2nd respondent have in towing the petitioners’ vehicle. The respondents did not appear to offer any answer. No statutory provision was cited or lawful explanation give to the petitioner (granted that this was a one sided account). In any case, the petitioner was not charged with an offence, or if charged, no evidence was placed before this court to that end. The power to seize and detain a citizen’s property is not a casual privilege to be exercised at whim. It must be grounded in law. I find therefore that the 2nd respondent also had a duty to make sure that it was acting upon lawful instructions (if at all instructed) from the police. 6. As the court observed in ***Ali Mohamed Bereki v Attorney General [2009] KEHC 2785 (KLR)***, traffic police who insist on the payment of charges to a private body — as a condition precedent to the release of a vehicle — are not enforcing any provision of the Traffic Act. They are using their public office for a collateral and illegitimate purpose. That is an abuse of power which I believe to be precisely what occurred here. I will elaborate on this further later on in this judgement. 7. Article 40 of the Constitution of Kenya protects every person’s right to acquire and own property either individually or in association with others. The State and every person shall observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights. The petitioner was deprived of his motor vehicle for forty-one days — not pursuant to any lawful order, not pursuant to any conviction, and not pursuant to any provision of law. The deprivation was arbitrary and unconstitutional. 8. Article 46 of the Constitution guarantees consumer rights, including the right to goods and services of reasonable quality and at a reasonable price where those services are provided by the State or a private entity. The demand of Kes. 28,500/- for towing a vehicle eighteen kilometers — compared to the evidenced market rate of Kes. 6,000/- — was not only excessive but extortionate. The petitioner’s right to services of reasonable cost was plainly violated. 9. I accordingly find, without difficulty, that the petitioner’s constitutional rights under Articles 40 and 46 of the Constitution were violated by the respondents’ conduct. **Issue 2: Whether the petitioner is entitled to compensation** 1. Article 23(3) of the Constitution empowers this court, in proceedings for the enforcement of the Bill of Rights, to grant appropriate relief, including — “(a) a declaration of rights; (b) an injunction; (c) a conservatory order; (d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24; (e) an order for compensation; and (f) an order of judicial review.” 1. Having found that the petitioner’s constitutional rights were violated, the question is what compensation is appropriate. The principles governing constitutional damages were articulated by the Court of Appeal *in* ***Gitobu Imanyara & 2 others v Attorney General, Civil Appeal No. 98 of 2014 [2016] eKLR***, where the Court held that the primary purpose of constitutional damages is the vindication of rights and the deterrence of future violations. Constitutional damages are not punitive in the traditional criminal sense, but they must be meaningful enough to signal to state actors that the casual and unlawful detention of a citizen’s property will carry a price. Compensation that is merely nominal would be a hollow vindication — a constitutional right with no remedy is no right at all. 2. On the standard of proof, the legal burden rests on the petitioner. Section 107 of the Evidence Act, Cap. 80, Laws of Kenya provides: 1. “(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. 2. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.” 3. On the question of the damaged bumper and deflated tyres, the petitioner did not establish a direct causal nexus between the damage and the respondents’ specific acts of towing or detention. Although the testimony was uncontroverted, the court cannot infer causation from bare assertion. Absent cogent evidence attributing the damage to the respondents, liability for the physical damage to the vehicle cannot be imputed to them. That head of claim is accordingly declined. 4. On the detention of the vehicle, the position is altogether different. The undisputed evidence establishes that the vehicle was towed on 30.09.2024 and remained in custody until 05.11.2024 — a period of forty-one days. Throughout that period, the petitioner was denied the use of his motor vehicle, which he described as indispensable to his daily commute to and from work. No charges were preferred against him. No lawful basis for the continuing detention was ever articulated. The detention was maintained solely to extract a commercial payment for a private towing company. This court holds, without reservation, that such conduct was arbitrary, unconstitutional, and an affront to the rule of law. 5. The petitioner urged an award of Kes. 500,000/-. While this court has no hesitation in awarding constitutional damages, it is important to calibrate the award to the facts. The vehicle was detained for forty-one days. The petitioner is an individual of modest means commuting to work. In ***Moses Kipkoech Rotich v Kenya National Highways Authority & 7 Others [2018] KEHC 2767 (KLR),*** the court awarded Kes. 3,000,000/- for the deprivation of a vehicle over two years. In *Kingbros Kenya Limited & another v Nairobi City County Government & 2 others* (Constitutional Petition E419 of 2024) [2025] KEHC 19211 (KLR), the court similarly addressed protracted deprivation of property rights. The present case involves a shorter period of detention, but the principle remains the same: the law cannot permit its officers to be deployed in the service of private commercial interests at the expense of citizens’ fundamental rights. 6. Having regard to all the foregoing — the arbitrary and unlawful nature of the detention, the duration of forty-one days, the loss of use of a vehicle essential to the petitioner’s livelihood and daily functioning, the exorbitant and unjustifiable charges sought, the respondents’ failure to appear or justify their conduct, and the need to vindicate the petitioner’s rights and deter similar violations — this court is of the view that a just and proportionate award of compensation is warranted. **ORDERS** 1. In the premises, the petition is found to be meritorious. The respondents acted high-handedly, without any clear legal mandate, and in blatant disregard of the petitioner’s constitutional rights. The rule of law demands accountability for such conduct. 2. Accordingly, I enter judgment for the petitioner against the respondents and issue the following orders: 1. A declaration is hereby issued that the towing and detention of the petitioner’s motor vehicle KAR 082P from 30.09.2024 to 05.11.2024 was unlawful, arbitrary, and in violation of the petitioner’s constitutional rights under Articles 40 and 46 of the Constitution of Kenya. 2. The 1st and 2nd respondents shall jointly and severally pay to the petitioner constitutional damages in the sum of Kenya Shillings One Hundred Thousand (100,000) Only as compensation for the unlawful detention of his vehicle and the violation of his constitutional rights. 3. The respondents shall pay the petitioner’s costs of this petition. It is so ordered. **DATED, SIGNED AND DELIVERED AT GARISSA VIRTUALLY THIS 23RD DAY OF JULY 2026.** **J.T. LOLWATAN** **JUDGE**