[2006] KEHC 1244 (KLR)
The court found that the applicant had established an arguable case warranting the grant of leave to apply for judicial review orders of certiorari and prohibition. The applicant demonstrated that the impounding and detention of his motor vehicle by the police was not connected to any criminal proceedings or as an...
Source-derived case information.
- Citation
- [2006] KEHC 1244 (KLR)
- Parties
- Applicant: Paul Sande Emolot; Respondent: The Attorney General; Respondent: The Commissioner of Police; Respondent: The Provincial Criminal Investigation Officer Western Province; Respondent: The District Criminal Investigation Officer Amagoro District; Respondent: Samou Edin Osman
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- ? 136 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Ex Parte Chamber Summons for Leave to Apply for Judicial Review
- Outcome
- Leave to apply for judicial review granted; no stay of proceedings; application allowed in terms of prayers 1 and 2 only.
- Legal Topics
- Judicial Review, Certiorari, Prohibition Orders, Police Powers, Property Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Sande Emolot
Applicant
The Attorney General
Respondent
The Commissioner of Police
Respondent
The Provincial Criminal Investigation Officer Western Province
Respondent
The District Criminal Investigation Officer Amagoro District
Respondent
Samou Edin Osman
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Ex Parte Chamber Summons for Leave to Apply for Judicial Review
Legal Issues
- 1 Whether the applicant is entitled to leave to apply for judicial review orders of certiorari and prohibition against the respondents.
- 2 Whether the police acted without jurisdiction in impounding and detaining the applicant's motor vehicle.
- 3 Whether the dispute between the applicant and the fifth respondent is of a civil nature, excluding police intervention.
Ratio Decidendi
The court found that the applicant had established an arguable case warranting the grant of leave to apply for judicial review orders of certiorari and prohibition. The applicant demonstrated that the impounding and detention of his motor vehicle by the police was not connected to any criminal proceedings or as an exhibit, and the underlying dispute with the fifth respondent was of a civil nature. The court held that police intervention in such civil disputes, including impounding property and summoning the applicant, was prima facie outside their jurisdiction. However, the court clarified that the leave granted would not operate as a stay of proceedings, meaning the impounded vehicle...
Court Disposition
Leave to apply for judicial review granted; no stay of proceedings; application allowed in terms of prayers 1 and 2 only.
Orders
- The application is certified as urgent.
- Leave is granted to the applicant to apply for judicial review orders of certiorari and prohibition against the second, third, and fourth respondents.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA
Misc Appli 136 of 2006
PAUL SANDE EMOLOT.....................................................................................................................APPLICANT
VS
THE ATTORNEY GENERAL................................................................................................1ST RESPONDENT
THE COMM. OF POLICE......................................................................................................2ND RESPONDENT
THE PROV. CR. INVESTMENT OFFICER WESTERN PROVINCE...........................3RD RESPONDENT
THE DISTRICT CR. INVEST. OFFICER AMAGORO DISTRICT.................................4TH RESPONDENT
SAMOU EDIN OSMAN........................................................................................................5TH RESPONDENT
RULING
By an ex-parte Chamber Summons, pursuant to the provisions of Order WII Rules 1 and 2 of the Civil Procedure Rules, the applicant seeks orders:
(1) That the application be certified as urgent.
(2) That leave be granted to the applicant to apply for Judicial Review Orders of :
(1) Certiorari to remove into this court and quash the decision of the second, third and fourth defendant to impound and detain the applicant’s motor vehicle Toyota Land Cruiser at Amagoro on 26th June 2006 without any lawful reason.
(2) Prohibition prohibiting the second, third and fourth respondent from raiding, threatening the applicant’s workers and guests at Emael Tourist Lodge illegally.
(3) Prohibition prohibiting the second, third and fourth respondents and their agents from summoning, interrogating the applicant on matters that are purely of civil nature.
(4) Prohibition prohibiting the second, third and fourth respondent by themselves, agents and/servants from doing any act or thing that may injure the applicant or deprive him of his moveable property neither by way of seizure, impounding or otherwise.
3. That the leave granted do operate as a stay of the decision of the second, third and fourth respondents to impound and detain the applicant’s motor vehicle now lying at Amagoro CID offices and the same be released forthwith to the applicant, pending the filing, hearing and final determination of the Judicial Review application to be filed.
4. That costs of this motion be provided for.
The application is based on the grounds:
1 That the applicant is the registered owner of Toyota Land Cruiser in issue and the same is not subject of the dispute between the applicant and fifth respondent and neither is it an exhibit in any proceedings.
2 That the applicant is likely to suffer substantial loss as he relies on the subject motor vehicle for his extensive travel within East Africa and Sudan in operation of this business.
3 That the dispute between the applicant and the fifth respondent is purely of civil and commercial nature and the police have no jurisdiction to summon, interrogate and impound the applicant’s property in enforcing or seeking compliance on the part of the applicant.
4 That the Kenya Police are breaching the applicant’s right to own and operate business in Kenya through their illegal raid and threats to close the applicant’s business at Malaba Kenya.
The application is predicated upon the statement dated 30th June, 2006 and the annexed affidavit of Paul Sande Emolot sworn on 30th June, 2006.
For the applicant, it was argued that he is the registered owner of Toyota Land Cruiser in issue and that the same is not the subject of a dispute between the applicant and the 5th Respondent. The same is equally not an exhibit in any proceedings.
That the applicant is likely to suffer substantial loss if the said vehicle is not released as he relies on the same for extensive travel within East Africa and Sudan in operation of his business.
That the dispute between the applicant and Samou Edin Osman is purely of a Civil nature and the police lacks requisite jurisdiction to summon, interrogate and impound the applicant’s property in enforcing or seeking compliance on the part of the applicant.
The applicant’s last and final contention is that the Kenya Police in detaining the said vehicle is breaching the applicant’s right to own and operate business in Kenya.
I have carefully analysed the application and take the position that it is urgent. Accordingly, I grant the application in terms of prayer 1 and 2 only. For avoidance of doubt, the said leave SHALLnot operate as a stay of proceedings.
DATED and DELIVERED at BUNGOMA this 24th day of July 2006.
N.R.O. OMBIJA
JUDGE
Mr. Masinde ) For the Applicant.