Mburu v Motachwa & 3 others (Commercial Miscellaneous Application E004 of 2025) [2026] KEHC 11474 (KLR) (9 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MIGORI** **HCCOMMISC NO. E004 OF 2025** **PRISCILLA WAMBUI MBURU .............................................. APPLICANT** **VERSUS** **CAROLYNE MOTACHWA ……………………………..…………., 1st RESPONDENT** **THE OCS NYATIKE POLICE STATION ……………………….. 2ND RESPONDENT** **THE INSPECTOR GEN, OF POLICE …………………………... 3RD RESPONDENT** **HON. ATTORNEY GENERAL …………………………………. 4TH RESPONDENT** **RULING** The application before this court is 16th July, 2025. It is brought pursuant to Section 89 of the Civil Procedure Act, Section 1A,1B and 3A of the Civil Procedure Rules. 2010 and all enabling provisions of the law. The Applicant seeks that an order do issue directing the OCS Nyatike Police Station to unconditionally release the back hoe machine Reg. KHMA 855M, the property of the Applicant wrongly held sat the station compound at the instigation of the 1st Respondent. The Applicant also sought for costs of the application. The application is premised on the grounds on its face and the affidavit sworn by the Applicant on 16th July 2025. The averments in the affidavit are that the back hoe in question belongs to the Applicant as shown in motor vehicle copy pf Records which shows that the same is registered in the joint names of the Applicant and Equity Bank The Applicant averred that when the said machine broke down while in the course of doing its daily contractual works and it stalled and the Applicant was forced to commence repairs. That surprisingly the Applicant found the machine had been removed and taken to police Station at the instigation of the 1st Respondent who claimed outstanding hire amount between her and a third party who had an issue she was not privy to. The Applicant averred further that the 1st Respondent entered into a contract with a 3rd party for a different back hoe and that instead of solving the dispute amicably the 1st Respondent forcibly carted away the machine and placed it at the station without the Applicant’s knowledge with instructions that it should not be released without her approval until the amount is paid. That despite having severally produced the ownership documents for the machine the OCS has declined to have it released to her for repairs to be carried out. That it was 3 months since the machine was detained at the police station and it is now going to waste. The 1st Respondent’s Counsel filed Memorandum of Appearance dated 6th August 2025 together with Replying Affidavit where it was deposed that the 1st Respondent entered into lease agreement with one Nicholas Kamau Wambui to lease motor backhoe Reg. No. KHMA 837C from 7th April 2025 at a daily rent of Kshs. 20,000/= for use in Migori County to be operated by the owners’ employees. That the employee operating the machine was also to be paid Kshs.2000/= per day by the 1st Respondent. The 1st Respondent also deposed that she paid a deposit of Kshs. 60,000/= together with Kshs. 40,000/= being mobilization fees through Mpesa to No. 0721288768. That when she moved the machine to the ground, she discovered it had mechanical defects contrary to the agreement that it was in sound working condition. That as she was waiting for the owner to repair the machine on, 7th May 2025 she learnt the owner had send some people to take the ignition key and also removed the battery. That to ensure that the machine was secure she moved it to Nyatike Police Station. That vide an agreement dated it was agreed between the 1st Respondent and Nicholas Kamau Wambui the lessor that he owed her Kshs. 200,000/= which was to be recouped upon repair of the machine. That however, the machine had not been repaired. The 1st Respondent averred that the Applicant was a stranger to her and is not the owner of the machine she hired. Directions were taken that the application be canvassed by way of written submissions and the Applicant filed submissions dated 15th September 2025. The 1st Respondent did not however file submissions and this court will proceed and determine the application based on the grounds, supporting affidavit, the Replying Affidavit and the Applicant’s submissions. **ANALYSIS AND DETERMINATION** Having considered the grounds, supporting affidavit, the Replying Affidavit and the Applicant’s submissions this court finds that the back hoe Reg. No. KHMA 855M detained at Nyatike Police Station is registered in the joint names of the Applicant and Equity Bank Limited as per the Certificate of Search from NTSA annexed to the Applicant’s affidavit in support of the application. The Applicant did not enter into lease agreement with the 1st Respondent for this particular back hoe or any other and it was illegal for the 1st Respondent in cahoots with OCS Nyatike Police Station to detain the back hoe. The 1st Respondent entered into lease agreement with Nicholas Kamau Wambui for lease of back hoe Reg. No. KHMA 837 C. In the circumstances the application dated 16th July 2025 has merit and the same is allowed with costs of the application to be paid by the 1st Respondent. Orders Accordingly. **DATED, SIGNED AND DELIVERED AT MIGORI, THIS 9TH DAY OF JULY, 2026.** JUDGE In the Presence of: Victor – Court Assistant Calvince – Court Assistant Applicant – Advocates Respondent – Advocate