[2010] KEHC 717 (KLR)
The court found that the respondent failed to provide any justification for the continued detention of the applicant's vehicles. No charges had been preferred against the applicant, and the respondent did not respond to the application or to correspondence from the applicant's counsel. The court accepted the...
Source-derived case information.
- Citation
- [2010] KEHC 717 (KLR)
- Parties
- Applicant: Republic; Respondent: The Commissioner of Police; Applicant: Fazil Hamed
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 57 of 2010
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- application allowed
- Legal Topics
- Judicial Review, Mandamus, Unlawful Detention of Property, Police Powers
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
The Commissioner of Police
Respondent
Fazil Hamed
Applicant
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the continued detention of the applicant's motor vehicles by the police without charge is lawful.
- 2 Whether an order of mandamus should issue to compel the release of the vehicles.
Ratio Decidendi
The court found that the respondent failed to provide any justification for the continued detention of the applicant's vehicles. No charges had been preferred against the applicant, and the respondent did not respond to the application or to correspondence from the applicant's counsel. The court accepted the applicant's allegations as true and held that the detention was arbitrary, unreasonable, and without legal basis. Consequently, the court granted an order of mandamus compelling the Commissioner of Police to release the vehicles to the applicant and awarded costs to the applicant.
Court Disposition
application allowed
Orders
- An order of mandamus is issued compelling the Commissioner of Police to release to the applicant the two motor vehicles described in the application.
- The respondent shall pay the costs of the application.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OFKENYA AT MOMBASA MISC. APPLICATION NO. 57 OF 2010
IN ACCORDANCE WITH ORDER L.III RULE 1 OF CIVIL PROCEDURE RULES AND IN THE MATTER OF: POLICE ACT CAP 84 LAWS OF KENYA AND IN THEMATTER OF: APPLICATION BY FAZIL HAMED FOR LEAVE TO APPLY FOR JUDICIAL REVIEW BY WAY OF AN ORDER OF MANDAMUS
BETWEEN
REPUBLIC ……………………………………......................…..……..APPLICANT
AND
THE COMMISSIONER OF POLICE ………..……...........……...….RESPONDENT FASIL HAMMED …………………...........……………….EX PARTE APPLICANT
J U D G M E N T
This is a Judicial Review Application by way of Notice of Motion under the provisions of Order 53, rules 1 and 2 of the Civil Procedure Rules.
The Applicant seeks the following order:-
An Order of Mandamus to compel the Commissioner of Police, the Respondent through the Port Police, Mombasa to release to the Applicant 2 motor vehicles namely (1) Range Rover Sports, Chasis No. SALLSAA 137A997608 Colour Black and (2) Mercedes Benz ML Chassis No. WDC 1641862 A 220668 Colour Black now being detained at the Port Police Mombasa.”
The Application was served on the Commissioner of Police through the Attorney General Chambers. The Respondent did not file any replying Affidavit is opposition or to explain why he had impounded the vehicles from October, 2009 and without any charge being preferred to date.
Counsel for the respondent confirmed to court that despite several letters to the Commissioner of Police and the Police at the Station, there has been no instructions to him.
As a result, I do hereby accept the allegations in the statement to be true and found that the vehicles are being held without any justification and arbitrarily. This is unreasonable and irregular. The applicant has been denied the use of his vehicle and for them to transit and be delivered to Uganda as port of destination.
I hereby allow and grant the prayers sought in prayers 1 and 2. The Respondent shall pay the costs of the application.
Dated and delivered at Mombasa this 29th day of September 2010.
M. K. IBRAHIM J U D G E
Coram:
Ibrahim, J Court clerk – Kazungu Mr. Ondari for the state Mr. Magolo for the Applicant
Judgment read in their presence.
IBRAHIM, J