[2020] KEHC 978 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

MISCELLANEOUS CRIMINAL APPLICATION E008 OF 2020

RENOWN MOTORS LIMITED...............................................................1ST APPLICANT

NAVED QURESHI......................................................................................2ND APPLICANT

~VS~

DIRECTOR OF PUBLIC PROSECUTION..........................................1ST RESPONDENT

DIRECTORATE OF CRIMINAL INVESTIGATIONS......................2ND RESPONDENT

RULING

1. Before this Court for determination is an Application dated 13. 10. 2020 brought under the provisions of Article 40, 47, 48 and 159 of the Constitution and all other enabling provisions of the law. The Applicant seeks the following orders:-

a) Spent.

b) That the motor vehicle registration number KCY 286B, TOYOTA VAN GUARD, BLACK IN COLOR which is currently being held by the Divisional Criminal Investigations Office (DCIO) Mombasa, the log book for the said motor vehicle KCY 286B Toyota Van Guard and the Transfer Agreement for the said motor vehicle all be released to the 1st and 2nd applicants herein.

c) That costs of this Application be provided for.

2. The application is premised on the 8 grounds on the face of the Application and supported by the affidavit of the 2nd Applicant. The Applicant avers that the 1st Applicant and himself are the registered owners of the motor vehicle KCY 286B Toyota Van Guard (subject motor vehicle) and that on 21. 8.2020, he filed a complaint with the office of the DCIO Mombasa on a case of fraudulent acquisition of the said motor vehicle by one Nadeem, which led to the seizure of the subject motor vehicle and the arrest of Nadeem Khan.

3. The deponent further avers that after the seizure of the subject motor vehicle, it is unclear what investigations have been done pertaining to the subject motor vehicle as the subject vehicle continues to get damage after being placed under unfavorable conditions.

4. The application was opposed by the 2nd Respondent relying on the replying affidavit of the PC Bridget Wanjiku who is a police officer attached to CCIO Office Mombasa. She depones indeed the 2nd Applicant reported a case of obtaining money by false pretence by one Nadeem KhanvideOB No. 51/17/8/2020 ofNyali Police Station and inquiry was opened and the matter. However, the suspect availed a sale agreement of the subject Motor Vehicle claiming that he bought the said motor vehicle from the 2nd Applicant yet the 2nd Applicant disputes the authenticity of the said sale agreement. Consequently, the dispute on ownership of the subject motor vehicle is still pending investigation as the inquiry file is yet to be completed, as the sale agreement has to be subjected to the document examiner to ascertain its authenticity. Therefore, the applicants cannot dictate how the exhibit should be photographed and released to the 2nd Applicant when the ownership of the subject motor vehicle is still in dispute.

5. The deponent avers that upon completion of investigations, the file shall be forwarded to the Office of the Director of Public Prosecution who shall advise on how to deal with the subject motor vehicles. Therefore, the current Application is premature and devoid of merit.

Rejoinder

6. In reply to the response by the 2nd Respondent, the 2nd Applicant vide Further Affidavit sworn on 2. 11. 2020 avers that the police have already established that the subject motor vehicle is owned by the 1st Applicant and the ownership of the same has never changed.

7. On the issue of the purported sale, the deponent avers that he was forced to sign a sale agreement when Nadeem forceful took the subject motor vehicle and was extorting money from him. The deponent further avers that the annexed sale agreement is a forgery as he has never met one Mr. Lucas Njuguna Wakauhi and he has never appeared before Lawyer Peter Gichuhi to execute the said agreement. Moreover, it is rather appalling that the alleged Mr. Lucas Nguguna has never appeared at the police station to claim the motor vehicle he allegedly purchased which has been in police custody for over two months.

8. The 1st Applicant avers that there cannot be any dispute on the ownership of the subject motor vehicle as Mr. Lucas Njuguna has never file a report at the police station claiming ownership and one Nadeem on the other hand has no ownership rights or proof of such ownership and that any agreement of sale from the 1st applicant is usually on its company letter head, the sale agreements are not witnessed by advocates and the sale agreement always has the company seal affixed to it.

9. The 2nd Applicant prays that the logbook in the 2nd Respondent’s custody be deposited in Court pending the investigations on ownership and the applicants undertake to avail the motor vehicle if and when the need arises since the investigations have taken long which is to the detriment of the applicants.

Submissions

10. The parties’ Counsel made submissions on the application with the Applicants’ counsel, Ms. Chala filing her written submissions on 4. 11. 2020, while Mr. Muthomi for the Respondents filed his submissions on 6. 11. 2020.

11. Ms. Chala learned Counsel for the Applicant reiterated the contents of the Affidavit in support of the Applicant case and cited the case of Joseph Kingori Mikamiti and Another vs. The Sub County Criminal Officer Igembe South Criminal Application No. 11 of 2020 where the subject motor vehicle therein was released to the owner with conditions.

12. Mr. Muthomi on his part reiterated the content of the Respondents’ Replying Affidavit and submitted that it is only fair and just for the Plaintiff to await the conclusion of investigations and that it is trite law that courts should not interfere with other state organs unless it is demonstrated that the State organs have violated the Constitution. In support of his submission, Counsel cited the Court of Appeal case of Commissioner of Police & The Director of Criminal Investigations Department & another v Kenya Commercial Bank Limited & 4 others [2013]eKLR.

Determination.

13. I have considered the application. The issue before me for determination in my view is whether the motor vehicle KCY 286B Toyota Van Guard should be released to the Applicants pending conclusion of investigations by the 2nd Respondent.

14. The Directorate of Criminal Investigations, which is headed by the DCI, is established under Section 28 of the National Police Service Act, 2011, and is placed under the direction, command, and control of the Inspector General of the National Police Service. The functions of the Directorate, as provided for under section 35 of the National Police Service Act, include:

(a) Collect and provide criminal intelligence;

(b) Undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cybercrime among others;

(c) Maintain law and order

(d) Detect and prevent crime;

15. The powers of the police to investigate a crime cannot be challenged because the police are there principally to combat crime. It is therefore not possible to interfere with any criminal investigations unless the foundation of such investigations is malicious or is an abuse of power.

Odunga J. in Isaac Tumunu Njunge v Director of Public Prosecutions & 2 others [2016] eKLR, said with regard to the power of the police to investigate:

“42. It is however my view that the police are clearly mandated to investigate the commission of criminal offences and in so doing they have powers inter alia to take statements and conduct forensic investigations. In order for the applicant to succeed he must show that not only are the investigations which were being done by the police are being carried out with ulterior motives but that the predominant purpose of conducting the investigations is to achieve some collateral result not connected with the vindication of an alleged commission of a criminal offence. It must always be remembered that the motive of institution of the criminal proceedings is only relevant where the predominant purpose is to further some other ulterior purpose and as long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene.”

16. From the foregoing, it is established that the Inspector-General has independent control over the National Police Service, and therefore no entity is enabled to direct him to carry out any investigations. However, the courts are empowered by Article 165(3) (d) (ii) to determine the question whether anything said to be done under the authority of the Constitution or any law is inconsistent with or in contravention of the Constitution. In Thuita Mwangi & 2 Others vs. Ethics and Anti-Corruption Commission & 3 Others [2013] eKLR:

“What is clear from the decision is that what constitutes ‘unreasonable delay’ is not a matter capable of mathematical definition but one dependent on the facts and circumstances of the particular case.”

17. In the present case, it is not in dispute that on 21. 8.2020, the 2nd Applicant reported the fraudulent acquisition of his motor vehicle and as a result of the complaint, one Nadeem Khan was arrested and the subject motor vehicle seized by the 2nd Respondent. The Respondents have averred that the reason for not releasing the motor vehicle to the Applicants is that there is a dispute on the ownership of the motor vehicle. However, the Applicants complaint is that the investigations have taken long and it is unclear when the same would be concluded while the subject motor vehicle keeps being damaged while in police custody.

18. It is noteworthy that the Respondents have produced records from the National Transport and Safety Authority, which state that the owner of the subject motor vehicle is the 1st Applicant. However, a copy of a sale agreement has also been produced by the Respondent and in the said agreement, it is alleged that the 2nd Applicant sold the subject motor vehicle to one Lucas Njuguna Wakahiu for a sum of Kshs. 2,300,000/=. The 2nd Respondent also avers that an inquiry is ongoing and the sale agreement needs to be subjected to the document examiner to ascertain its authenticity.

19. In response to the alleged sale agreement, the 2nd Applicant avers that his signature on the said agreement in a forgery, that he has never appeared before Peter Gachuhi Advocates to execute the agreement and that Lucas Njuguna Wakahiu id a stranger to him.

20. From the foregoing, this Court note that indeed, there is an ownership dispute concerning the subject motor vehicle and it is on the basis that the 2nd Respondent avers that investigations are pending. Be that as it may, this Court finds that the Applicants are entitled to information on the progress of investigation in their case as complainants. PC Bridget Wanjiku in her replying affidavit did not confirm that the suspect from whom the motor vehicle in question was intercepted complied with the summons to attend to the DCI for purposes of investigations to confirm how he came by the motor vehicle in question. The investigating officer has not shown that following the recovery of the motor vehicle in question she summoned Lucas Njuguna Wakahui to record a statement on the circumstances under which he allegedly bought the motor vehicle from the 1st Applicant and show proof of consideration given in respect to the said purchase.

21. PC Bridget Wanjiku averred that she is yet to forward the sale agreement to the document examiner to ascertain its authenticity but she did not show this court that she had taken specimen signatures of the parties; she did not show that she had taken the known signatures of the parties to be investigated she did not also show that she had taken the questioned signatures for purposes of the examination by Document Examiner. The said investigating officer did not give time lines within which her investigations will be completed. She did not explain the cause of the delay in completing her investigations.

22. In consideration of the findings, this Court orders that the motor vehicle in question should be released to the Applicants on under takings of a Kenyan citizen that it shall be availed as and when required by the DCI Mombasa in the event that it is established that it belongs to any other party other than the applicants. For now, it is evident from the records obtained from NTSA that the motor vehicle belongs to the Applicants.

23. It is so ordered.

DATED, SIGNED, and DELIVERED at MOMBASA on this 3rd day of December 2020 by Microsoft Teams.

HON. LADY JUSTICE A. ONG’INJO

JUDGE