[2011] KEHC 629 (KLR)
The court found that the respondent, Lamu County Council, acted unlawfully and without authority in confiscating the applicant's motorbike for an alleged breach of council by-laws. The proper procedure would have been to charge the applicant in accordance with the law, not to seize his property. Since the motorbike...
Source-derived case information.
- Citation
- [2011] KEHC 629 (KLR)
- Parties
- Applicant: Republic; Respondent: The Town Clerk, Lamu County Council; Applicant: Peter Sollacher
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 88 of 2011
- Procedural Posture
- Judicial Review / Ruling
- Outcome
- Application allowed. Declaration of unlawful action. Injunction granted. Costs to applicant.
- Judges
- JV Juma
- Legal Topics
- Judicial Review, Unlawful Confiscation, Local Authority Powers
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
The Town Clerk, Lamu County Council
Respondent
Peter Sollacher
Applicant
Procedural Posture
Judicial Review / Ruling
Legal Issues
- 1 Whether the respondent had legal authority to confiscate the applicant's motorbike for an alleged breach of council by-laws.
- 2 Whether the respondent's actions constituted unlawful interference with the applicant's property.
Ratio Decidendi
The court found that the respondent, Lamu County Council, acted unlawfully and without authority in confiscating the applicant's motorbike for an alleged breach of council by-laws. The proper procedure would have been to charge the applicant in accordance with the law, not to seize his property. Since the motorbike had already been returned, the court declined to make further orders except to restrain the council from further unlawful interference. Costs were awarded to the applicant.
Court Disposition
Application allowed. Declaration of unlawful action. Injunction granted. Costs to applicant.
Orders
- The respondent is directed to cease and desist from any further unlawful interference with the applicant’s possession of motorbike registration No. KMCG 311T.
- Costs of the application are awarded to the applicant.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
JUDICIAL REVIEW NO. 88 OF 2011
REPUBLIC..........................................................................APPLICANT
=VERSUS=
THE TOWN CLERK, LAMU COUNTY COUNCIL...................RESPONDENT
AND
PETER SOLLACHER....................................................EX-PARTE APPLICANT
RULING
I have considered this application dated 17th August 2011. The Respondent Lamu County Council were properly served with Notice of the Hearing of the Application for Judicial Review but failed to enter appearance or to file any papers in response thereto. The dispute arose over the confiscation of the Applicant’s motor bike Registration KMCG 311T over an alleged breach of council by-laws by the Applicant. If the Applicant breached any law then the council was at liberty to have him charged in the normal manner. They had no mandate or authority to confiscate his motor bike for this alleged breach. I find that the actions of the Respondent were unlawful, without authority and without any basis. However the Applicant has confirmed to the court that the motor bike has already been returned to him. Thus it would be superfluous to make any further orders at this stage save to direct that the council cease and desist from any further unlawful interference with the Applicant’s possession of his motorbike registration No. KMCG 311T. It is so ordered. Costs of this application are awarded to the Applicant.
Dated and Delivered in Mombasa this 1st day of December 2011.
M. ODERO
JUDGE
In the presence of:
Applicant in person