[2019] KEHC 7748 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

CONSTITUTUONAL PETITION CASE NO.12 OF 2018

PATRICK KAMOTHO KING’ORI.............................PETITIONER

VERSUS

THE INSPECTOR GENERAL OF POLICE.....1ST RESPONDENT

THE O.C.S NAROK POLICE STATION..........2ND RESPONDENT

POLICE CONSTABLE KANYORA..................3RD RESPONDENT

POLICE CONSTABLE GITONGA...................4TH RESPONDENT

THE NATIONAL TRANSPORT

& SAFETY AUTHORITY...................................5TH RESPONDENT

AND

ALICE CHESANG..........................................INTERESTED PARTY

JUDGMENT

By an amended petition dated 20th August 2018 the petitioner sought the following orders:

a). A declaration that the actions of the respondent transferring, seizing, detaining the petitioner’s motor vehicle Reg.No.KCG 803T have violated the petitioner’s constitutional rights to protection of right to property equal protection of the law, and fair administration action.

aa). An order of certiorari bringing to this Honourable court for purposes of quashing the act of the 5th Respondent of transferring the motor vehicle Reg. No. KCG 803T from the name of the petitioner to the name of Lempapa Ole Sofia (deceased) on or about 12th July 2018.

b). An order directing the respondent to release motor vehicle Reg No.803T to the petitioner.

bb). In the alternative restitution of the motor vehicle an order that the respondent jointly and severally do compensate the petitioner with current market values of a similar motor vehicle estimated at Kshs. 2,000,000/-

c). Damages for loss of user of the motor vehicle as pleaded from the time it was seized to the time it was restituted/compensated in value.

d). Compensation for breach of constitutional rights

e). Costs and interest

The petition is founded on Articles 2(1), 3, 10, 20,22,23,40 and 47 of the Constitution of Kenya, 2010. The facts surrounding the petition are the petitioner, Patrick Kamotho King’ori, a businessman based at Karatina, was the registered sole owner of motor vehicle Reg. No. KCG 803T which he used for matatu business under the 4NTE Sacco earning on average Ksh.6000/- per day.

The respondents:

1st respondent is an office established under Article 245 of the Constitution of Kenya, the 2nd respondent under the National Police Service Act no. 11A of 2011, the 3rd and 4th, police officers employed under the said Act working at Narok Police Station under the command of the 2nd, the 5th a body cooperate established under the National Transport and Safety Act no. 33 of 2012. The Interested party is described as a male person working for gain and residing with Narok County.

On 10th August 2018 the petitioner was in the course of his named business activity at Nyeri Matatu Bus terminus on the instructions of OCS Narok police station the 2nd respondent when the 3rd Respondent PC Kanyora and PC Gitonga the 4th respondent impounded the motor vehicle, confiscated his keys and drove the motor vehicle to Nyeri police station on the allegation that the motor vehicle was subject of a property dispute between the interested party Alice Chesang and other parties. Later the 3rd and 4th respondents drove the said motor vehicle to Narok Police station where it was being held up to the time of the filing the petition. He annexed documents- 4NTE Delivery Notes to confirm that his motor vehicle was engaged in the transportation of people at a fee – where one trip would fetch about Kshs.3500/-; Copy of log book in the name of Alice Chesang and another in his name.

In his supporting affidavit he deponed that he had bought the motor vehicle from Alice Chesang in May 2018 who was then the registered owner as per the annexed log book. He also deponed that he had ascertained the nature of the dispute and alluded to documents marked as ‘P6’ which unfortunately were bot attached to the bundle filed in court.

That the 2nd and 3rd respondents had impounded the motor vehicle over an alleged debt but his motor vehicle was not involved at all.

He accused the 5th respondent – The National Transport and Safety Authority (NTSA) of acting in complicity with the 2nd, 3rd and 4th respondents to transfer the said motor vehicle on 12th July 2018 to a deceased person by the name of Lempapa Ole Sofia, an act which was in breach of the petitioner’s right to fair administrative action and which alienated his motor vehicle illegally. He annexed a certificate of death for the said Lempapa Ole Sofia dated 31st July 2017, showing that he had died on 28th May 2017, and a copy of motor vehicle records showing that as at 16th August 2018 the motor vehicle was registered in name of Lempapa Ole Sofia but was previously owned by the petitioner and the interested party.

All the respondents and the interested party were served vide Affidavit of Service sworn by Simon Gibson Gichuki on 26th November 2018. None of them entered appearance or made any response. The petition was therefore unopposed.

Counsel for the petitioner M/S CM Kingori & Co.Advocates submitted that the averments in the amended petition remained uncontroverted as neither the respondents nor the interested party responded to the petition.

On the right to protection of property under Article 40 of the Constitution he relied on;

-Joram Nyaga Mutegi Vs.Kenya National Highway Authority[2017[eKLR

-Daneva Co.Ltd Vs.KENHA [2014]eKLR

-Great Lakes Transport Co.Ltd Vs.KENHA [2009] eKLR

On the right to fair administration under Article 47 of the Constitution and the Fair Administrative Actions Act, it was argued for the petitioner that his motor vehicle was seized from him without being informed why, and the motor vehicle was transferred to a stranger by the 5th respondent without his knowledge consent/participation.

He relied on Moses Kipkoech Rotich Vs.KENHA [201] eKLR

On equal protection of the law under Article 27 of the Constitution, it was argued that the 2nd, 3rd and 4th respondents exhibited bias against him favoring the others who benefited from the impugned transfer.

On damages, he relied on Great Lakes Transport Co.Ltd Vs.KRA & Arnacherry Ltd Vs.AG [2014]eKLR where the court awarded the Petitioner Ksh.3,000000 as general damages for breach of proprietary rights. He sought General Damages of Kshs. 1,000,000/-, having pleaded loss of user of the motor vehicle at Kshs.6000/- per day – that that sum would cover daily loss of income and compensation for breach of property rights. In addition he sought a restitutory award of Kshs. 2,000,000/-, being the open market conventional price of such a motor vehicle as the one impounded

At the conclusion of the petitioner’s submissions, several issues arise for determination;

-Whether the petitioner has established that he was the registered proprietor of motor vehicle Reg. No. KCG 308T.

-Whether the petitioner has established that his motor vehicle was impounded by the respondents as alleged?

-Whether the petitioner has established that the motor vehicle was transferred to the deceased unlawfully.

-whether he has established that his rights have been violated.

-whether the orders for general damages and restitution sought can be granted in the circumstances of this petition.

I have carefully considered the affidavit and documentary evidence provided, the submissions by counsel.

The respondents and the interested parties were all served vide the affidavit of service sworn by Simon Gibson Gichuki on 26th November 2018 and the Return of Service showing that office of Inspector General was served on 20th November 2018, NTSA on 20th November 2018, OCS Narok on 22nd November 2018 and Alice Chesang on 21st November 2018. Neither of these parties saw it fit to respond to the allegations of facts raised by the petitioner- hence the facts remain uncontroverted-

-That he was the registered proprietor of the motor vehicle Reg No. KCG 803T at the material time as evidenced by the log book in his name.

-That the motor vehicle was impounded for some reason that did not concern him by the police officers from Narok Police Station ,detained at the police station and later transferred to one Lempapa Ole Sofia.

-That he was using the motor vehicle as a source of income making about Kshs.6000/- per day.

However, does the evidence placed before me support the petitioner’s claim?

-The petitioner produced a copy of records from NTSA showing that as at 16th August 2018 the motor vehicle was registered in the name of Lempapa Ole Sophia whom he claimed was deceased. However, that fact alone demonstrates that when the motor vehicle was impounded on 11th August 2018 and driven to Narok police station on 12th August 2018, it was not registered in the name of the petitioner but in the name of Lempapa Ole Sophia Lempapa Ole Sophia is not a party to this Petition

If indeed the said Lempapa Ole Sophia is deceased, the court would not know, as apart from the similarity of names on the certificate of death and the copy of records, there is nothing before me to show that the 2 documents refer to one and the same person.

The petitioner said he bought the motor vehicle from the interested party sometime in May 2018. However, his own log book shows that he was registered on 30th April 2018. Was he registered before he bought the motor vehicle? This discrepancy is not explained. Hence what is deponed in his supporting affidavit and what is on the face of the log book are two different sets of facts.

What this means is that the police may have been justified in their actions armed with the log book issued to Lempapa Ole Sophia which clearly showed he was the registered proprietor of the motor vehicle at the time the same was impounded.

The petitioner alleged that the transfer of the motor vehicle to Lempapa Ole Sophia was an illegal act alluding to fraud, breach of national values, principles of governance that bind the respondents

No particulars of fraud were pleaded on the part of the 5th Respondent. None were established. It was left for the court to infer them from the fact that the motor vehicle appears to have been transferred to Lempapa Ole Sophia posthumously.

In Vijay Morjaria –vs- Nansigh Madhosingh Darbar & Another (2000) eKLR Keiwua JA (as he then was) stated-

“It is well established that fraud must be specifically pleaded and that particulars of the fraud must be stated on the face of the pleading. The acts alleged to be fraudulent must be set out, and then it should be stated that the acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.”

Be that as it may, it is not denied by the respondents that as at the time the motor vehicle was impounded it was in the possession of the petitioner. There is no evidence that the police made any effort to investigate the manner in which he came to be in possession of the said motor vehicle, neither did they serve him with any papers to demonstrate the reason for the impounding and detention. We live in a country governed by the rule of law. If the petitioner was in violation of any law by being in possession of the said motor vehicle, then it was beholden on the police to inform him and to follow the proper procedures to take the motor vehicle away from him.

It is evidenced by the log book bearing the name of Lempapa ole Sophia that the motor vehicle was at one point registered in the names of the petitioner and in the names of the interested party. It is also evident that the petitioner was the registered owner before the deceased Lempapa ole Sophia was registered. How that transfer happened while he was still the registered owner and without his knowledge and participation has not been explained. Hence even though the copy of records shows that the motor vehicle was transferred to Ole Sophia after the Petitioner, on 12th July 2018, the uncontroverted fact is that by then the said Ole Sophia was deceased, and it is strange how he would participate in these transactions from the grave, while the current owner who is still alive had no knowledge of the same and was not invited to participate in the transactions. It is this that reeks of fraud.

The 5th respondent has not explained how the motor vehicle could be transferred to a deceased person.

The 5th respondent having failed to respond to the allegations of illegality on their part, leaves the petitioner’s contention unchallenged. Hence the petitioner’s right to own property and the right to fair administrative action was violated. Being in possession of the motor vehicle and having a log book that indicated he was the owner, the police officers who impounded the motor vehicle acted in violation of his rights as they ought to have carried out investigations to find out the true position of the matter before impounding the motor vehicle. In the circumstances of this case, despite the fact that the police may have had another document showing that the motor vehicle was registered in another person’s name, they were not justified in simply taking the motor vehicle away from the petitioner. They were required to follow due process. The petitioner was never charged with any offence hence; it cannot be said that he had committed some crime in possessing the motor vehicle.

If there was a dispute in a court of law of law or tribunal, the petitioner required to be heard as well as that is what the right to equal protection of the law requires. He too ought to have been heard before the police took the motor vehicle from him. The refusal, negligence and or failure to respond to court papers after being served is a demonstration of the level of impunity on the part of the respondents.

From the papers before me I have not seen any role played by the interested party in all this except for her name appearing in the log book as one of the previous owners of the motor vehicle. Neither can it be said that the 1st respondent would condone the unlawful actions of officers. When an officer has been trained and is expected to enforce the rule of law, and acts unlawfully, the tax payer should not bear the costs of those unlawful acts.

It is not disputed by the respondents that the petitioner was the registered owner of the motor vehicle and was in possession at the time of the impounding. It has been kept away from him since august 2018. To date it is 8 months and counting. InMoses Kipkoech Rotich case the judge following other decisions of this court and the Court of Appeal granted Ksh.3,000,000/- to the petitioner where his motor vehicle had been detained for 10 months. The petitioner seeks Ksh.1 million and restitutionary sum of Ksh. 2million in lieu of the return of his motor vehicle. Although no valuation report or document was tendered to court to support the value as claimed, the same has not been disputed by any other parties.

On the loss of user, the evidence produced by the petitioner was insufficient to arrive at an award.

I am persuaded by the similarities between this case and that of MosesKipkoech Rotich vs KeNHA and the Judge’s findings that the respondent had indeed violated the petitioner’s rights

I find for the petitioner as against the respondents and the following orders to issue:

1. A declaration that the actions of the respondents transferring, seizing, detaining the petitioner’s motor vehicle Reg.No.KCG 803T violated the petitioner’s constitutional rights to protection of right to property equal protection of the law, and fair administration action.

2. An order of certiorari do and is hereby issued quashing the act of the 5th Respondent of transferring the motor vehicle Reg. No. KCG 803T from the name of the petitioner to the name of Lempapa Ole Sofia (deceased) on or about 12th July 2018.

b). The 2nd 3rd and 4th respondents are directed release motor vehicle Reg No.803T to the petitioner within 30 days hereof in default to be liable jointly and severally to pay compensation of Ksh 3000 per day to the petitioner after 30th day.

4. That the 2nd ,3rd and 4th respondents jointly and severally to pay the petitioner Ksh. 2,000,000/- plus interest at court rates from the date of impounding as Compensation for breach of his constitutional rights.

5. The 2nd, 3rd, 4th and 5th Respondents to bear the Costs and interest thereon of this petition.

Dated delivered and signed this 9th May 2019 at Nyeri

Mumbua T Matheka

Judge

In the presence of:

Court Assistant: Jerusha

Mr. Mugo holding brief for Mr. King’ori for the Petitioner

Judge