[2018] KEHC 5505 (KLR)
The court found that the petitioner failed to demonstrate that he acquired the motor vehicle from a person with valid title or authority to sell. The original owner, Noor Ali Noor, retained the original logbook and other documents, and the petitioner could not provide proof of consideration or trace the alleged...
Source-derived case information.
- Citation
- [2018] KEHC 5505 (KLR)
- Parties
- Petitioner: Pius Mutuma Mbaya; Respondent: Hamisi Omari Abdalla; Respondent: O.C.S Parkland P/S; Respondent: DCIO Meru P/S; Respondent: DPP
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 4 of 2017
- Procedural Posture
- Criminal Petition / Judgment
- Outcome
- petition dismissed with costs to the 1st respondent
- Legal Topics
- Unlawful Detention of Property, Ownership of Stolen Property, Constitutional Right to Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pius Mutuma Mbaya
Petitioner
Hamisi Omari Abdalla
Respondent
O.C.S Parkland P/S
Respondent
DCIO Meru P/S
Respondent
DPP
Respondent
Procedural Posture
Criminal Petition / Judgment
Legal Issues
- 1 Whether the petitioner's right to own and enjoy property under Article 40 of the Constitution was violated by the detention of the motor vehicle.
- 2 Whether the petitioner is entitled to release of the motor vehicle and/or damages for its detention.
- 3 Whether the petitioner acquired valid title to the motor vehicle in question.
Ratio Decidendi
The court found that the petitioner failed to demonstrate that he acquired the motor vehicle from a person with valid title or authority to sell. The original owner, Noor Ali Noor, retained the original logbook and other documents, and the petitioner could not provide proof of consideration or trace the alleged vendor. The court held that the petitioner's rights under Article 40 of the Constitution could not defeat the rights of the true owner, as his rights had not crystallized. The act of registering the vehicle in the petitioner's name while it was under police investigation and subject to a dispute was done in bad faith. The court concluded that the petitioner was not entitled to the...
Court Disposition
petition dismissed with costs to the 1st respondent
Orders
- The petition is dismissed.
- Costs awarded to the 1st respondent.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CRIMINAL PETITION NO. 4 OF 2017
PIUS MUTUMA MBAYA.................................PETITIONER
VS
HAMISI OMARI ABDALLA...................1ST RESPONDENT
O.C.S PARKLAND P/S............................2ND RESPONDENT
DCIO MERU P/S......................................3RD RESPONDENT
DPP............................................................4TH RESPONDENT
JUDGMENT
The Petitioner Pius Mutuma Mbaya has filed this petition seeking that the court declares that his right to own and enjoy property has been violated and also seeks an order for release of his Motor Vehicle Registration KCF 615 Toyota station Wagon to be issued to OCS Parklands Police Station.
He also sought special and general damages for unlawful detention and loss of user of the said Motor Vehicle. Facts of the case are that Noor Ali Noor reported theft of his Motor vehicle at Parklands police station when he realised cheques issued to his cousin by a person who identified himself as a doctor at Aga Khan Hospital were fake when they went to deposit. Police traced the car with the petitioner herein. He was arrested and detained and motor vehicle also detained as exhibit.
Petitioner was later released on police bond to assist the police trace the person who ‘sold’ to him the motor vehicle as alleged. Noor Ali Noor was to provide the purchaser with vehicles original logbook, transfer forms, PIN certificate and copy of ID and all relevant documents after the bankers cheques issued were cleared.
This court sought to understand why the motor vehicle in possession of petitioner was detained and it was established that he alleged to have bought the motor vehicle from a person he was unable to lead police to and having been arrested and detained for being in possession of vehicle that was stolen and/or fraudulently obtained he went ahead to cause it to be registered in his name while the same was in court for determination and under police investigations. While the petitioner came to court to seek the courts assistance in affirming his rights to own and enjoy property, he acted in bad faith in going ahead to have his name registered as owner of a motor vehicle that was suspected to have been obtained fraudulently and/or stolen from the 1st Respondent.
The 1st Respondent was still having the original title to the said Motor Vehicle when petition changed ownership and the question is how he did it without having original document. The petitioner didn’t show actual proof of consideration that he paid out either in cash or cheque or even electronic funds transfer to the alleged buyer within the short period that the car left the hands of 1st Respondent.
The petitioners claim under Article 40 of the Constitution in the view of this court cannot defeat the 1st Respondents right as his rights had not crystallized. The person he alleged to have sold to him the car was not the registered owner of the car and therefore had no authority to sell the car. Secondly he was told to help police trace the alleged vendor and instead he went and had himself registered as owner of car that was under investigations. Petitioner redress should be in claiming be refund of alleged purchase price from the alleged vendor. This petition cannot stand. Same is dismissed. Costs to 1st Respondent.
HON. A.ONG’INJO
JUDGE
JUDGEMENT SIGNED, DELIVERED AND DATED THIS 13TH DAY OF JULY 2018
IN THE PRESENCE OF:
C/A:- Penina
Petitioner: - Mr Ojiambo Advocate holding brief for 1ST Respondent
Ms Okello holding brief for Nelima for Petitioner.
HON. A.ONG’INJO
JUDGE
Mr Ojiambo
I pray for copy of judgment.
Order
Copying charges to be paid for supply of copy of judgment.
HON. A.ONG’INJO
JUDGE