[2023] KEHC 27278 (KLR)

Skytech African Supplies Ltd v Directorate of Criminal Investigations & 3 others (Petition E007 of 2022) [2023] KEHC 27278 (KLR) (2 November 2023) (Judgment)

Neutral citation: [2023] KEHC 27278 (KLR)

Republic of Kenya

In the High Court at Kajiado

Petition E007 of 2022

SN Mutuku, J

November 2, 2023

Between

Skytech African Supplies Ltd

Petitioner

and

Directorate of Criminal Investigations

1st Respondent

The Director of Public Prosecutions

2nd Respondent

Peter Muange Kimuyu

3rd Respondent

National Transport and Safety Authority

4th Respondent

Judgment

Introduction 1. The dispute in this Petition revolves around ownership of motor vehicle registration number KCW 351S. Both the Skytech African Supplies Litd, the Petitioner, and Peter Muange Kimuyu, the 3rd Respondent, claim ownership. In the Petition dated 5th September 2022, the Petitioner states that it is the current registered owner of motor vehicle registration number KCW 351S Toyota Harrier which it purchased on 12th May, 2022, through one of its director John Njue, from Carplicity Motors Limited who were selling it on behalf of the then registered owner, Emily A. Chaulo.

2. The Petitioner claims that he paid Kshs 2,500,000 (Two million, five hundred thousand) as consideration; that the vehicle was seized from its parking at the Petitioner’s Offices along Racecourse Road Nairobi by the Police from Kitengela Police Station in the month of July, 2022 on allegations that it had been stollen.

3. The petitioner claims that the 3rd Respondent served them with pleadings in Kajiado PMCC E196 of 2022 – Peter Muange -vs- Amaco & Skytech African Supplies Limited where the 3rd Respondent had sought orders directing the 1st Respondent to release the motor vehicle to him, among others.

4. On the other hand, the 3rd Respondent claims that the motor vehicle belongs to him; that he was involved in an accident on 9th December 2020 along Mombasa Road; that at the time, the motor vehicle was insured by Africa Merchant Assurance Co. Ltd (AMACO) to whom he reported the accident and was instructed to tow the vehicle to Njens Motor Ltd garage for repairs; that AMACO informed him that the motor vehicle had been declared unroadworthy and that he would be compensated the sum of Kshs 2,730,000; that the motor vehicle went missing after the garage closed down; that he reported matter to the police at Kitengela Police Station and wrote to NTSA to stop any transfer of the motor vehicle. He denied ever selling the motor vehicle to the Petitioner.

Petitioner’s case 5. The Petitioners through a Petition dated 5th September 2022 sued the Respondents herein for violation of his constitutional rights. The petitioner argued that his right to information protected under Article 35 of the Constitution was infringed when his counsel requested the 2nd Respondent’s officers at Kajiado ODPP to supply him with a copy of the letter they wrote to NTSA directing them to transfer motor vehicle registration Number KCW 351S to the 3rd Respondent and they refused to supply the Petitioner with the same despite the fact that the said vehicle was registered in his name.

6. The Petitioner claims that its right to property protected under Article 40 of the Constitution has been infringed when the 1st Respondents’ Officers at Kitengela DCI seized the subject motor vehicle and that despite subsequently becoming aware that the 3rd Respondent’s report to Kitengela Police Station alleging that the vehicle was stolen was false, they still held onto the car and refused to release it to the Petitioner.

7. The Petitioner claims that the 2nd Respondent’s Officers at Kajiado infringed on his right to property when they wrote a letter to NTSA directing them to transfer the motor vehicle to the 3rd Respondent and failing to recall the letter even after learning that the car in fact belonged to the Petitioner and that the 3rd Respondent’s claim over it was fraudulent.

8. The Petitioner seeks the following reliefs:i.A declaration by this honourable court that the 1st Respondent’s acts of continuing to detain motor vehicle registration number KCW 351S Toyota Harrier even after learning that the 3rd respondent’s claim over the car is fraudulent infringes the Petitioner’s right to property protected under Article 40 of the Constitution.ii.A declaration by this honourable court that the 2nd Respondents’ refusal to hand over to the Petitioner the letter the 2nd Respondent wrote to NTSA directing them to transfer back the motor vehicle to the 3rd Respondent infringes the Petitioner’s right to property protected under Article 40 and the Petitioner’s right to access to information protected under article 35 of the Constitution of Kenya.iii.An order of injunction restraining the 4th Respondent from registering motor vehicle Number KCW 351S Toyota Harrier in the name of the 3rd Respondent.iv.An order directing the 1st Respondent to release motor vehicle registration number KCW 351S Toyota Harrier to the Petitioner.v.An order of compensation and or damages against the Respondents.vi.Costs and interest.

Respondents’ case 9. The 3rd Respondent has opposed the Petition through his Replying affidavit dated 23rd September 2022. He has denied selling the disputed motor vehicle. He has denied that he discharged the vehicle to AMACO Insurance company and has refuted claims that he received any compensation from AMACO Insurance maintaining that the said discharge voucher did not mature for payment. It is his case that AMACO has not provided any evidence to this effect.

10. He has stated that he was involved in an accident on 9th December 2020 and inform AMACO, his insurance company about the accident who instructed him to tow the vehicle to the garage belonging to Njens Motors Limited, which he did; that the said garage repaired the subject motor vehicle but the garage closed down and his efforts to trace his vehicle were futile.

11. He claims to have reported the matter to AMACO Insurance but he did not get any assistance from them necessitating his report to Kitengela DCI; that on 20th June, 2022 he wrote a letter to NTSA to stop any transfer of the motor vehicle to any party; that investigations were conducted and the motor vehicle was found at the Petitioner’s office; that both him and the Petitioner produced ownership documents and the DCI commenced investigations as to the true owner; that the DCI threatened to release the motor vehicle to the Petitioner necessitating the filing of Kajiado PMCC NO E196 of 2022 in which he sought orders to detain the motor vehicle at Kitengela DCI until investigations were completed to establish the true owner of the motor vehicle.

12. The 3rd Respondent has stated, further that the DCI, through a report dated 26th July, 2022, recommended that the said motor vehicle belongs to the 3rd Respondent; that the DCI recommended the arrest of the garage owner and Petitioner herein for fraud and forgery; that NTSA acting on the report of the DCI’s letter dated 7th September, 2022, Ref. No CID/SEC/4/4/VOL.II/60/2022, have retrieved transfer documents from their records and have acknowledged that there was fraud and forgery; that NTSA have since rectified their records and issued him with a logbook making him the registered owner of the vehicle. It was his case therefore that the Petition should be dismissed.

13. The 1st, 2nd and 4th Respondents have not responded to the Petition or attended court despite being served with the pleadings. They have therefore not participated in these proceedings.

Petitioner’s Submissions 14. The Petition was canvassed through written submissions. The Petitioner filed its submissions dated 3rd March 2023 in which 3 issues have been raised for determination:i.Whether the Petitioner’s right to property protected under Article 40 of the Constitution was infringed.ii.Whether the Petitioners right to access to information protected under Article 35 of the Constitution of Kenya was infringed.iii.Whether the Petitioner has suffered loss.

15. The Petitioner has submitted that at the time of filing of the Petition it was the registered owner of the subject motor vehicle after lawfully purchasing it from Carplicity Motors Limited through one of its directors John Njue. He has submitted that Carplicity Motors was selling the vehicle on behalf of its registered owner Emily A Chaulo.

16. The Petitioner has submitted that the claim of ownership of the motor vehicle by the 3rd Respondent is false; that the 3rd Respondent’s claim in paragraph 9 of his Replying Affidavit exhibit marked ‘PMK5’ that as shown in the search certificate that as at 3rd July, 2022 he was the registered owner of the motor vehicle could be false; that the Petitioner acquired the motor vehicle lawfully and that he purchased the said motor vehicle for value without any defect in title.

17. He further submitted that the 3rd Respondent had signed a discharge voucher with his insurer AMACO and that AMACO was to compensate him in the amount of Kshs. 2,730,000/; that the 3rd Respondent accepted the terms of the discharge voucher on 18th March, 2022 and that the salvage was therefore the property of AMACO; that the 3rd Respondent through a letter to the Commissioner of Insurance on 20/6/2022 stated that he was aware that the car was sold by AMACO but that AMACO failed to honour his claim and that the report made to the DCI Kitengela was therefore false as the vehicle had not been stolen.

18. The Petitioner submitted that the obvious remedy for the 3rd Respondent was pursuing AMACO for the compensation they had committed to pay as the discharge voucher had no term for return of the salvage to the 3rd Respondent. It was argued that in continuing to hold the vehicle after the said discoveries and further in trying to assist the 3rd Respondent to revert the car back to his name, the 1st Respondent was not justified and that its actions amounted to violation of the Petitioner’s rights. The Petitioner cited Paris Mutwiri JohnBase Commander Maua Traffic Base and another [2021] eKLR, where the court cited with approval the case of Patrick Kamotho King’ori v Inspector General of Police & 4 others; Alice Chesang (interested party) Constitutional Petition Case No. 12 of 2018[2019] eKLR where it was held that:“The 5th Respondent having failed to respond to the allegations of illegality on their part, leaves the Petitioner’s contention unchallenged. Hence the petitioner’s right to own property and the right to fair administrative action was violated. Being in possession of the motor vehicle and having a logbook that indicated he was the owner, the police officers who impounded the motor vehicle acted in violation of his rights as they ought to have carried out investigations to find out the true position of the matter before impounding the motor vehicle. In the circumstances of this case, despite the fact that the police may have had another document showing that the motor vehicle was registered in another person’s name, they were not justified in simply taking the motor vehicle away from the petitioner. They were required to follow due process. The petitioner was never charged with any offence hence; it cannot be said that he had committed some crime in possessing the motor vehicle.”

19. On the second issue, it was submitted that their right to access to information as set out in Article 35 of the Constitution was infringed; that the 4th Respondent has confirmed that on 16th August, 2022 they received a letter Ref CID/SEC/4/4/VOL. II/60/2022 from the DCI Kitengela to which was attached another letter Ref ODPP/KJD/05/VOL.1/2022/49 dated 26th July, 2022; that the said letter was advising the 4th Respondent to restore the ownership of the motor vehicle to the 3rd respondent; that these letters were written without the knowledge or participation of the Petitioner; that he only got to know about the letters in the beginning of September, 2022.

20. He submitted that his advocate through a letter dated 8/8/2022 wrote to the 2nd Respondent seeking a copy of the letter however there was no response; that even after an in-person visit to the offices of the 2nd Respondent they were not furnished with the said letter; that it is only after filing of this petition that they were furnished with a copy of the said letter however page 2 was omitted; that when they obtained the omitted page they found out that the 2nd Respondent’s counsel had advised inter alia that the 3rd Respondent ought to compensation from AMACO as it was not fair for him to be see his motor vehicle being driven around when he had not been compensated.

21. It was submitted that the actions of the 1st and 2nd Respondents to assist the 3rd Respondent to pursue his insurance claim amounted to abuse of power as this was not within their mandate. The Petitioner cited Katiba Institute -vs Presidents Delivery Unit & 3 others [2017], where it was held that:“From the facts of this Petition precedents and the law, it is uncontroverted that the Petitioner sought information in exercise of its constitutional right under Article 35. It is also clear that even though the law requires the public entity to respond to the request within twenty-one (21) days on whether or not it is in possession of the information and will or will disclose, the respondents ignored the law.The respondents were under both a constitutional and legal obligation to allow the Petitioner to access information in their possession and held on behalf of the public. This is an inviolable constitutional right and that is clear from the language of Article 35 of the Constitution, and any limitation must meet the constitutional test and only then can one raise limitation as a ground for non-disclosure.’’

22. On the third issue, it was argued that the Petitioner+’s supplies business has been injured by the seizure of the subject motor vehicle. The Petitioner relied on Paris Mutwiri John v Base Commander Maua Traffic Base and another [2021] eKLR where the judge awarded Kshs. 1,500,000 as compensation for breach of the Petitioner’s rights.

3rd Respondents Submissions 23. The 3rd Respondent raised four issues for determination:i.Who is the registered owner of motor vehicle KCW 351S.ii.Whether the Petitioner has proved allegations of fraud by the 3rd Respondent.iii.Whether the Petitioner is entitled to the prayers sought in the petition.iv.Who should bear the costs.

24. On the first issue the that the 3rd Respondent submitted that at all times to this suit the 3rd Respondent has been the registered owner of the vehicle as shown in the copy of the logbook marked ‘PMK-4’ issued to him on 12th March, 2021 and a copy of records from NTSA dated 3rd July, 2022; that from the documents the subject vehicle was purchased by the 3rd Respondent from the 1st time registered owner AL Ginza Automobiles limited; that he neither sold the vehicle nor transfer it to any other person and that any transfer done was fraudulent.

25. He argued that the sale agreement allegedly entered into by him and one Joseph Muiruri Mbugua was a forgery; that the signature therein was a forgery as shown in the forensic document examiner’s report annexed and marked ‘P.K -1’ in his Further Affidavit dated 12th October, 2022. Further, the Identity Card used had a different photograph from the actual appearance of the 3rd Respondent and that the DCI Kitengela carried out investigations and from their report indicated that a fraudulent transfer had occurred.

26. He relied on section 8 of the Traffic Act which provides that, “the person in whose name a vehicle is registered shall, unless to the contrary is proved, be deemed to be the owner of the vehicle.’’ Ihe argued that the Petitioner has not proved his case; that the Petitioner had a legal and evidentiary burden of proof of any facts alleged on a balance of probabilities as per section 107, 108 and 109 of the Evidence Act.

27. He relied on Joel Muga Opinja v East African Seafood Limited [2013] eKLR where the court quoted the case of Ignatius Makau Mutisya v Reuben Musyouki Muli that:“We agree that the best way to prove ownership would be to produce to the Court a document from Registrar of Motor Vehicles showing who the registered owner is but when the abstract is not challenged and is produced in Court without any objection, the contents cannot later be denied”.

28. On the second issue, it was argued that the Petitioner has made averments and allegations that the documents of ownership held by the 3rd Respondents are forgeries and that the 1st, 2nd and 4th Respondents aided fraudulent transfer; that allegations of fraud must be specifically pleaded and strictly proved on a standard below reasonable doubt but above a balance of probabilities. He relied on Koinange & 13 others v Koinange [1968] KLR 23 where the court held that:“Allegations of fraud must be specifically pleaded and strictly proved on a standard below beyond reasonable doubt but above the usual standard in civil proceedings, that is on the balance of probabilities. Counsel for the appellant seems to be laying their obligation to strictly prove the fraud allegedly committed by the respondent on the court by calling upon it to investigate the issue whether pleaded or not. Parties ought to know that they have an obligation to present prima facie case of fraud or illegality before the court can investigate the issue. Mere mention of fraud or illegality in passing will not do.’’

Analysis and Determination 29. I understand the issues in this Petition to be whether the Petitioner’s constitutional rights were violated and whether he is entitled to the reliefs sought. Central to the issues raised in this Petition is the issue of ownership of the motor vehicle KCW 351S, a black Toyota Harrier.

30. From the documents filed in court, both the Petitioner and the 3rd Respondent are claiming ownership of the said motor vehicle. The Petitioner claims ownership of the vehicle as purchaser of the said motor vehicle. His case is that the 3rd Respondent had an accident after which the vehicle was declared write off by the 3rd Respondent’s insurers AMACO who compensated the 3rd Respondent Kshs 2,730,000 for the loss after he signed a discharge voucher. The Petitioner claims to have bought the vehicle on 12th May, 2022, from John Njue, a director of Carplicity Motors Limited, who were selling it on behalf of the then registered owner, Emily A. Chaulo for Kshs. 2,500,000/-.

31. The 3rd Respondent, on the other hand, has claims to be the registered owner of the motor vehicle and denies ever selling it or transferring it to anyone. He denied that he was compensated by his insurer, AMACO, and claims that the garage where he had taken the motor vehicle for repairs was closed making it impossible for him to trace his motor vehicle. He claims that consequently after failing to trace the motor vehicle he reported the matter at Kitengela Police Station who traced the motor vehicle to the Petitioner’s premises and seized it.

32. Allegations of fraud have been made in this case. The Petitioner has alleged fraud in that the seizure of the vehicle by the 1st Respondent at the behest of the 3rd Respondent amounted to fraud and was in breach of his rights; while the 3rd Respondent claims that the motor vehicle was fraudulently transferred to the Petitioner.

33. It is trite that he who alleges must prove. Section 107 (1) of the Evidence Act (Chapter 80 of the Law of Kenya), is clear on this:107. (1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist…”

34. Allegations of fraud are serious allegations. A party claiming fraud must specifically plead it and provide all the particulars of the alleged fraud. The standard of proof in cases where fraud is alleged is higher than a balance of probabilities in civil cases but lower than proof beyond reasonable doubt in criminal matters. In Vijay Morjaria vs Nansingh Madhusingh Darbar & Another [2000] eKLR, Justice Tunoi, JA. (as he then was), stated as follows:“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.”

35. I have carefully read the pleadings in this matter. The Petitioner has merely alleged fraud without distinctly providing evidence to prove the same. The 3rd Respondent, on the other hand, has availed documentation to show the action the police took in investigating this matter. He has attached evidence to show change of ownership of the motor vehicle as captured in the records of NTSA, the agency mandated to deal with registration of motor vehicles. In his Replying Affidavit dated 23rd September 2022, the 3rd Respondent has annexed a copy of records from NTSA dated 3rd July, 2022 and marked PMK-5. There are documents alleging fraud in having the motor vehicle transferred to the Petitioner. From the investigations conducted by the 1st Respondent, the 3rd Respondent is said to be the registered owner of the motor vehicle. The Respondents seem to hold the view that any transfer of the motor vehicle from the 3rd Respondent to any other person must have been done fraudulently and without the knowledge of the 3rd Respondent.

36. I have seen an undated sale agreement allegedly entered into between the 3rd Respondent and one Joseph Muiruri Mbugua. It has been stated that the signature and Identity Card number appearing on that sale agreement is a forgery as per a report annexed to the 3rd Respondent’s Further Affidavit dated 12th October, 2022. From the documents attached to the 3rd Respondents Further Affidavit, I have noted that the 1st, 2nd and 4th Respondents did acknowledge that there was indeed fraud and forgery of documents.

37. The 4th Respondents through a letter dated 7th September, 2022 and marked PMK-10 noted that the transfer of ownership from the registered owner (the 3rd Respondent) to third parties was procured irregularly and through falsification of documents. This is the view held by both the 1st and 2nd Respondents. Further, the Report form the 2nd Respondent dated 26th July 2022 made recommendations that, ‘D2’ (Lawrence Njeru Mbae the workshop manager of the garage) and ‘D3’ (Joseph Muiruri Mbugua) be arrested and arraigned in court for the offence of forgery, uttering and conspiracy.

38. Further, the copy of the letter from the NTSA dated 29th September 2022 attached to 3rd Respondent’s Further Replying Affidavit traces the movement of the disputed motor vehicle from the original owner Al Ginza Automobiles Limited to the 3rd Respondent to Joseph Muiruri Mbugua to Dahir Aden Farah to Emily A. Chaulo and finally to the Petitioner. All these transfers of the motor vehicle resulted in issuance of logbooks. All these changes of ownership were completed with logbooks issued in each case. Clearly, going by all the documents availed to court, the ownership of this motor vehicle is in dispute with allegations of fraud. To my mind, until the issue of ownership is determined, the Petitioner cannot be said to have proved that he owns this motor vehicle.

39. This court is not sitting as a court determining the criminal element in respect of how this vehicle changed ownership. This court is sitting as a constitutional court to determine whether the rights of the Petitioner have been violated by the Respondents. But the evidence available seems to point to existing dispute of the ownership of the motor vehicle. This dispute could have been resolved in a civil suit or even a criminal case could easily determine who the legal owner of the disputed motor vehicle is. If the transfer to the Petitioner were to be found to have been fraudulent in a criminal trial, then clearly it would mean that the Petitioner is not the owner of this vehicle.

40. In my considered view, the Petitioner could have found recourse in a civil court. The Petitioner, in my view, need not have moved this court sitting as a constitutional court. It is my considered view that the doctrine of constitutional avoidance is applicable in this case. This doctrine has been defined in Black’s Law Dictionary, 10th Edition at page 377 as follows:“The doctrine that a case should not be resolved by deciding a constitutional question if it can be resolved in some other fashion”.

41. In Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR, the Supreme Court held that: -“(256)The appellants in this case are seeking to invoke the “principle of avoidance”, also known as “constitutional avoidance”. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. In South Africa, in S v. Mhlungu, 1995 (3) SA 867 (CC) the Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]:“I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.”

42. Further, in KKB v SCM & 5 others (Constitutional Petition 014 of 2020) [2022] KEHC 289 (KLR) (22 April 2022), the court was of the view that the doctrines of ripeness and constitutional avoidance shun to deal with a constitutional issue where there exists another legal course which can give the litigant the relief he seeks. In other words, a constitutional issue is not ripe for determination until the determination of the constitutional issue is the only course that can give the litigant the remedy he seeks. Both constitutional avoidance and ripeness avert the determination of the constitutional issues until it becomes very necessary to the extent that it is the only course available to assist the litigant’s cause.

43. Consequently, it is my finding, and I so hold, that the Petitioner has failed to persuade this court that his constitutional rights to information and property have been violated by the Respondents. The effect of this conclusion is that the reliefs sought in this Petition cannot issue. The Petition dated 5th September 2022 stands dismissed with costs to the 3rd Respondent who is the only Respondent who actively participated in these proceedings.

44. Orders shall issue accordingly.

Dated, signed and delivered this 2nd November 2023. S. N. MUTUKUJUDGE