Republic v Director of Criminal Investigations & 3 others; Said (Ex parte) (Application E007 of 2024) [2026] KEHC 12665 (KLR) (6 August 2026) (Judgment)

Republic v Director of Criminal Investigations & 3 others; Said (Ex parte) (Application E007 of 2024) [2026] KEHC 12665 (KLR) (6 August 2026) (Judgment) Neutral citation: [2026] KEHC 12665 (KLR) Republic of Kenya In the High Court at Mombasa Application E007 of 2024 J Ngaah, J August 6, 2026 Between Republic Applicant and Director Of Criminal Investigations 1st Respondent The Inspector General Of Police 2nd Respondent The Director Of Public Prosecutions 3rd Respondent The Honourable Attorney General 4th Respondent and Salahuddin Said Ex parte Judgment Introduction 1.The motor vehicle registration number T424 DTX Toyota Alphard (which I shall refer to as “the subject motor vehicle”) has, on the ex parte applicant’s account, lain in detention at Nyali Police Station in Mombasa since about March 2022. By his Notice of Motion dated 25th July 2024 and filed on 2nd August 2024, the ex parte applicant, Salahuddin Said, moves this court for an order of mandamus to compel its release to him. 2.The application is expressed to be brought under Order 53 rules 3 and 4 of the Civil Procedure Rules, section 3A of the Civil Procedure Act (Cap. 21) and sections 8 and 9 of the Law Reform Act (Cap. 26). It seeks the following orders:“a)That an order of mandamus do issue directed to the respondents to compel the release of motor vehicle registration number T424 DTX Toyota Alphard to the ex parte applicant.b)That the costs of this application be provided for”. 3.Leave to institute these proceedings was granted, pursuant to which the applicant filed the motion now before me. The application is supported by the statutory statement filed under Order 53 rule 4, the affidavit sworn by the applicant on 16th July 2024, verifying the facts relied upon and a supplementary affidavit, also sworn by the applicant on 3rd September 2024. It is opposed by the replying affidavit of Chief Inspector Mohamed Jillo sworn on 15th October 2024 and filed on behalf of the respondents. The applicant’s case 4.The applicant’s case, as deposed in his affidavits and set out in the statutory statement and the grounds on the face of the motion, is that he is the beneficial owner of the subject motor vehicle, having purchased it from one Ahmed Suleiman Juma on 9th July 2019. In proof of ownership he exhibits a sale agreement, a motor vehicle registration card and a certificate of registration, copies of which he has exhibited to his affidavit. He concedes that the vehicle has not yet been transferred into his name. 6.He states that in or about March 2022, while the subject motor vehicle was being driven in Kenya by his sister, it was seized and detained at Nyali Police Station, Mombasa, pursuant to the orders or directives of the 1st respondent. The stated basis for the seizure was an allegation that the vehicle was in the country without a valid authorisation permit for a foreign motor vehicle. 7.The applicant avers that he promptly furnished the 1st respondent with proof of ownership and with the authorisation permit for a foreign motor vehicle issued by the National Transport and Safety Authority, together with the relevant invoice and payment receipt copies of which he has also exhibited to his affidavit. In his supplementary affidavit he explains that the document originally annexed to his verifying affidavit as “SS-7” was, through inadvertence, an exit pass rather than the authorisation permit, and he now has annexed the authorisation permit itself. 8.According to the applicant, the 1st respondent required four days within which to conduct investigations and undertook to release the vehicle thereafter. More than two years have since elapsed and, despite his numerous visits to the police station, the vehicle remains in detention. He states that nothing was recorded in the occurrence book, that no reasons have been given to him for the continued detention, and that no criminal charges have been preferred against him or any other person in connection with the matter. 9.He complains that the subject motor vehicle, which is kept in the open and exposed to the vagaries of whether, is wasting away; that its body is leaking through wear and tear; and that its key and certain documents that were in it at the time of the seizure have been lost. He apprehends that with further deterioration the vehicle will be rendered useless and that he will suffer great financial loss and inconvenience. 10.He avers that he served the respondents with a demand notice but that they failed to comply. 11.On these facts, the applicant contends that the continued detention of his vehicle is arbitrary, unreasonable, punitive and unlawful; that it violates his right to property under Article 40 of the Constitution and his right to fair administrative action under Article 47; and that it offends Articles 48, 50 and 159(2)(d) of the Constitution, which require that matters be dealt with expeditiously and without undue delay. He relies principally on the decision in Republic v Inspector General of Police & Another ex parte Kennedy Ngeru Irungu [2016] eKLR. The respondents’ case 12.The respondents oppose the application through the replying affidavit of Chief Inspector Mohamed Jillo, who describes himself as the Sub-County Criminal Investigations Officer stationed at Nyali and states that he is competent to swear the affidavit on behalf of the respondents. 13.The substance of the respondents’ answer is contained in two averments. First, the deponent states that the subject motor vehicle was seized and detained at Nyali Police Station by a multi-agency team led by the Kenya Revenue Authority. Secondly, he deposes that the suit ought to have been instituted against the Kenya Revenue Authority and not any other party, it being the Kenya Revenue Authority that is said to have led the seizure and detention. 14.Beyond these two averments the replying affidavit says nothing. It does not dispute the ex parte applicant’s ownership of the vehicle; it does not deny that the vehicle is detained at Nyali Police Station; it does not assert that any criminal charge has been preferred, or that any forfeiture or other proceeding has been commenced, in respect of the vehicle; and it offers no justification, beyond the bare reference to the Kenya Revenue Authority, for the continued detention. Submissions 15.The applicant filed written submissions that rehearse the facts and the grounds of the motion and develop the constitutional arguments already noted, anchored on the ex parte Kennedy Ngeru Irungu case (supra). The respondents did not file submissions. Issues for determination 16.Having considered the motion, the affidavits, the statutory statement and the submissions, the issues that fall for determination are these:i.whether the application is incompetent for having been brought against the wrong parties and for non-joinder of the Kenya Revenue Authority;ii.whether the ex parte applicant has made out a case for the grant of an order of mandamus; andiii.what orders ought to issue, and who should bear the costs. The nature and office of mandamus 17.Before turning to the issues, it is convenient to recall the nature and office of the remedy the applicant seeks. An order of mandamus is defined in Black’s Law Dictionary (9th edn.) as a writ issued by a court to compel the performance of a particular act by a lower court or a governmental officer or body. 18.The classic statement of its purpose is that in Halsbury’s Laws of England (4th edn.) Vol. 1, which our courts have repeatedly adopted:“The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right…” 19.In Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge & Others [1997] eKLR, the Court of Appeal explained that an order of mandamus compels the performance of a public duty where the person or body on whom the duty lies has refused to perform it. An applicant for the order must demonstrate the existence of a legal right to the performance of a legal duty of a public nature, and that the party against whom the order is sought has, notwithstanding a demand, failed or refused to perform that duty. 20.It follows, and I bear it in mind, that the remedy is discretionary; that the duty sought to be enforced must be a public duty; and that there must ordinarily be a demand and a refusal. 21.I also bear in mind the caution that it is not enough for an applicant in judicial review proceedings merely to assert illegality, unreasonableness or breach of the rules of natural justice; the specific default of the body complained of must be demonstrated on the evidence. Whether the application is incompetent for non-joinder of the Kenya Revenue Authority 22.It is convenient to take the respondents’ objection first, for if it is well founded it disposes of the matter. The whole of the respondents’ answer, as I have noted, is that the seizure was led by the Kenya Revenue Authority and that the ex parte applicant has therefore sued the wrong parties. I am not persuaded by the objection, for three reasons. 23.First, the respondents’ own deponent, who is the Sub-County Criminal Investigations Officer at Nyali, admits in terms that the subject motor vehicle was seized and detained at Nyali Police Station. The vehicle is thus held at a police station, in the physical custody and under the control of officers who answer to the 1st and 2nd respondents. Whatever agency may have initiated or led the operation, it is the respondents who hold the vehicle. Mandamus to compel the release of property lies against the authority in whose custody and control that property is held; and a demand for its release, having been made to the respondents and not acceded to, is properly the foundation of an application against them. 24.Secondly, the assertion that the Kenya Revenue Authority led the seizure is made from the four corners of the affidavit and is wholly unsupported. The respondents have not produced a single document to substantiate it: there is no seizure notice such as the East African Community Customs Management Act, 2004 requires to be issued where goods are seized under that Act; there is no occurrence book entry; there is no affidavit from any officer of the Kenya Revenue Authority; and there is nothing to show that any customs process, forfeiture or other proceeding in respect of the vehicle is, or ever was, on foot. A bare averment of that kind cannot displace the respondents’ admitted custody of the vehicle, nor can it discharge the burden, which lay on the respondents, of demonstrating a lawful basis for its continued detention. 25.Thirdly, if the respondents genuinely held the vehicle to the order of, or on account of, the Kenya Revenue Authority, it lay peculiarly within their power to place before the court the material establishing as much. They did not. A respondent who detains a citizen’s property and, when called upon to justify the detention, offers only an unsubstantiated referral to another agency, cannot thereby defeat an otherwise competent application. 26.For these reasons the objection founded on non-joinder and misjoinder fails, and I decline to dismiss the application on that ground. Whether a case for mandamus has been made out 27.I turn to the merits. Several matters are, on the record, either admitted or uncontroverted. The applicant’s beneficial ownership of the subject motor vehicle is not disputed. It is not disputed that the vehicle was seized and has been detained at Nyali Police Station. It is not asserted, let alone shown, that any criminal charge has been brought against the applicant or anyone else in respect of the vehicle, or that any forfeiture or other statutory proceeding has been instituted. And no reason for the continued detention has been placed before the court. 28.The stated basis for the original seizure was that the subject motor vehicle was in Kenya without a valid authorisation permit for a foreign motor vehicle. Two answers to that are apparent on the record. The applicant has produced the authorisation permit issued by the National Transport and Safety Authority, together with proof of ownership; and the respondents have neither impugned those documents nor identified any subsisting offence, whether under the traffic laws or the customs laws, said to be disclosed by the vehicle’s presence in the country. The suggested justification for the seizure has, in short, evaporated. 29.What remains is the naked fact of a citizen’s motor vehicle held at a police station for over two years without charge, without any forfeiture or other process, and without any reason offered to the court. That state of affairs cannot be countenanced. The police are charged with the enforcement of the law and the protection of life and property; they are not clothed with any authority to seize a person’s property and to detain it indefinitely without lawful cause. If the State, whether the police or any other agency, suspected the commission of an offence in relation to the vehicle, its plain duty was to investigate the matter with reasonable dispatch and either to institute the appropriate proceedings or to release the vehicle. It has, on the material before me, done neither. 30.The continued detention of the subject motor vehicle in these circumstances is arbitrary and unreasonable. It is a plain infringement of the applicant’s right, under Article 40 of the Constitution, to acquire and own property; and of his right, under Article 47, to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. A public body that detains a citizen’s property for over two years without process and without explanation acts in breach of that guarantee. 31.The facts of this case are, in principle, indistinguishable from those in Republic v Inspector General of Police & Another ex parte Kennedy Ngeru Irungu [2016] eKLR, on which the ex parte applicant relies. There, the police had impounded and detained a motor vehicle and had placed no affidavit before the court to justify the seizure or the continued detention. Aburili J. held that, in the absence of any such justification, the police action was illegal, irregular, irrational and arbitrary, and she issued an order of mandamus compelling the release of the vehicle. The learned Judge observed, and I respectfully adopt her reasoning, that there is no absolute authority vested in the police to impound motor vehicles and to detain them indefinitely, and that where the police believe a vehicle to have been unlawfully acquired their duty is to investigate and to place the appropriate evidence before the prosecuting authority, not to hold the vehicle in perpetuity. 32.In one respect the present case is a stronger one for the applicant. Here, unlike in ex parte Kennedy Ngeru Irungu case (supra), the respondents did file a replying affidavit. But that affidavit, as I have shown, supplies no justification whatever for the detention; it does no more than deflect responsibility to the Kenya Revenue Authority, and it does so without a shred of supporting material. An affidavit that fails to justify the detention leaves the applicant’s case, in substance, unanswered. 33.I am accordingly satisfied that the applicant has established a clear legal right to the return of his property; that there rests on the respondents, in whose custody the vehicle is held, a public duty to release it once no lawful cause for its detention subsists; and that, notwithstanding his demand, they have failed and refused to release it. The requirements for the grant of mandamus are met. 34.As to discretion, no alternative remedy that is more convenient, beneficial or effectual has been shown to be available to the applicant, who has been left, for over two years, without recourse and without explanation. This is a proper case in which the court’s discretion ought to be exercised in his favour. Disposition and costs 35.For the reasons I have given, the Notice of Motion dated 25th July 2024 is merited and it succeeds. Accordingly:a)An order of mandamus be and is hereby issued, directed to the respondents, and in particular to the 1st and 2nd respondents, in whose custody the subject motor vehicle is held, to release forthwith and unconditionally to the applicant, Salahuddin Said, motor vehicle registration number T424 DTX Toyota Alphard, from Nyali Police Station or wherever else it may be held.b)For the avoidance of doubt, this order does not preclude any competent authority from taking, strictly in accordance with the law, such lawful steps in respect of the subject motor vehicle as may properly be open to it; but the vehicle shall not, on the strength of anything done in these proceedings, continue to be detained otherwise than under such lawful process.c)The costs of the application are awarded to the ex parte applicant, to be borne by the respondents. 36.Orders accordingly. SIGNED, DATED AND PUBLISHED ON 6 AUGUST 2026NGAAH JAIRUSJUDGE