https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11178

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NYERI** **HIGH COURT CONSTITUTIONAL PETITION NO. E003 OF 2022** **DAVID IRUNGU WOLLACE……………………………PETITIONER** **-VERSUS-** **EQUITY BANK LIMITED…………......................RESPONDENT** **JUDGEMENT** 1. The Petitioner herein **DAVID IRUNGU WOLLACE** filed in the High Court the Constitutional Petition dated **26th January 2022** seeking the following orders and declaration:- **“a) A declaration that in absence of any evidence that the petitioners motor vehicle registration KAK 209V was auctioned to recover any alleged loan or charges then the petitioner’s constitutional and fundamental rights to property ownership as envisioned in article 40(1) (a) (b) of the constitution was violated.** **b) A declaration that the decision of the respondent not to provide information expeditiously on when the motor vehicle was** **auctioned and the price it fetched despite the same information being sort [sic] violated the petitioner’s constitutional rights to fair administrative action and access to information as stipulated in articles 35(1) (B) and 47(1) of the constitution.** **c) A declaration that the unlawful decision of the respondent of taking away the petitioner’s motor vehicle KAK 209V which was his only constant source of livelihood led to the degradation of the petitioner’s dignity and this was in violation of article 28 of the constitution.** **d) General, exemplary and punitive damages against the respondent as may be assessed by this honorable court for gross violation of the petitioner’s fundamental right to dignity and not to be subjected to mental and psychological torture.** **e) Costs and interests.** **f) Any other relief that this honourable court may deem** **just and fit to grant in the interest of justice.”** 2. The petition was supported by the affidavit of even date and the supplementary Affidavit dated **18th November 2025** sworn by the Petitioner. 3. The Respondent **EQUITY BANK KENYA LIMTIED** opposed the petition through the Replying Affidavit dated **3rd June 2019** sworn by **SYLVESTER K. MACHARIA** the credit Manager of the Respondent Bank. The 2nd Respondent did not file any reply to the Petition. 4. The Petition was canvassed by way of written submissions. The Petitioner filed the written submissions dated **18th December 2025** whilst the Respondent did not file any submissions. **BACKGROUND** 5. The Petitioner stated that on **22nd March 2006** he secured a loan facility for an amount of **Kshs. 60,000/=** from the Respondent Bank. The Petitioner offered as security for said loan household items e.g coffee tables, sofa sets, beds and 4 cows. The Petitioner emphasizes that at no time did he surrender to the bank the logbook of his Nissan Matatu Registration No. **KAK 209V**. 6. That around **February 2007, HEATHWAY MERCHANDISE** Auctioneers acting upon the instructions of the Bank confiscated the Petitioners vehicle and auctioned said vehicle in order to recover an outstanding amount due to storage charges. The Petitioner states that he had cleared the entire loan of **Kshs. 60,000** and was not made aware of any outstanding storage charges. 7. The Petitioner complains that despite several making visits to the Bank and despite several letters written the Respondent has been unable to provide him with evidence of when the auction of his vehicle took place, how much was realised from the said auction, or who purchased the vehicle. The Petitioner further avers that upon checking with records held by **NTSA** there is no evidence of the transfer of this vehicle to a third party. 8. The Petitioner pleads that due to the confiscation of his vehicle which he was using as a matatu plying the Othaya-Nyeri route he has been financially destabilized and has had to struggle to meet his financial family obligations. 9. In their Replying Affidavit the Bank confirms having advanced a loan of **Kshs. 60,000/-** to the Petitioner. However it is averred that the records in respect of that loan were archived and cannot be traced. The Respondents state that the Petitioner failed to settle the auctioneer’s storage charges his motor vehicle Registration **KAK 209 V** was sold by the 2nd defendant to recover the monies due and owing to them. 10. The Respondents relied on a second Replying Affidavit dated **19th November 2025** sworn by **SAMUEL WAMAITHA** the Assistant Manager-legal services with Equity Bank in which it was averred that all issues relating to the subject vehicle Registration **KAK 209 V** were ventilated in **Nyeri CMCC No. 440 of 2007** a suit filed by the Petitioner against the Bank, which suit was dismissed vide the judgment delivered on **1st September 2010**. The Respondent submits that these issues are now Res Judicata. 11. That on **9th April 2010** the Petitioner seeking review of judgment of **1st September 2010**. That application for review was also dismissed vide a ruling delivered on **20th August 2019**. The Respondents argue that the issues now being raised by the petitioner ought to be ventilated in a civil suit and not by way of a constitutional petition. 12. The Respondents insist that there has been no violation of any of the petitioner’s constitutional rights and that the claim for damages cannot be made against the Bank. That this Petition is vexatious and amounts to an abuse of court process and should be dismissed. 13. The Petitioner stated that the conduct of the respondent not to provide any documentary evidence to prove that motor vehicle registration **KAK 209V** was auctioned to recover any loan that could have been advanced to the petitioners is the clear evidence that the vehicle was unlawful and illegally taken away from the petitioner and sold clandestinely thereby violating the petitioners constitutional right to property ownership as stipulated in **Article 40 of the constitution of Kenya 2010**. 14. That as a result of the unlawful action of the respondent the petitioner’s social and economic life as a small scale farmer who had saved for a long time in order to buy the second hand matatu has been turned upside down and he could not sustain his livelihood and that of his family which consisted of little school going children. Further that the decision of the respondent not to provide any information as from year **2007** when the motor vehicle was confiscated by the respondent and their failure to respond to the petitioner’s two letters of enquiry dated **30th November 2018** and **27th March 2019** was a violation of the petitioner’s and fair administration action as stipulated in **Articles 35** **and 47** of the constitution. 15. That the unlawful action of the respondent of taking away the petitioner’s motor vehicle which was the major source of his livelihood affected his dignity as a result of the abject poverty that the petitioner had been thrust into and causing the petitioner both mental and psychological torture. This action violated petitioners right to live in dignity and not to be subjected to any form of torture as envisaged by **Articles 28** and **29** of the constitution. Hence this petition. **ANALYSIS AND DETERMINATION** 16. I have carefully considered the Petition before this court, the reply filed thereto, as well as the written submissions filed by both parties. The three questions which emerge for determination are;- **(i) Has the Petition met the threshold for a constitutional** **petition.** **(ii) Were the Petitioner’s rights infringed.** **(iii) Is the Petitioner entitled to damages.** **(i) Threshold for a Constitutional Petition** 17. The threshold for a constitutional petition were set out in the case of **ANARITA NJERU -VS- REPUBLIC [1997] KLR**, where the Court held that:- **“We would however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed…..”** 18. Similarly in **COMMUNICATIONS COMMISSION OF KENYA & OTHERS -VS- ROYAL MEDIA SERVICES LIMITED & 5 OTHERS [2014] eKLR** the Court stated that **“Although article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this article has to show the rights said to be** **infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v Republic, (1979) KLR 154:** **The necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such principle plays a positive role as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.”** 19. The court while considering the elements of a sustainable Constitutional Petition in **Grays Jepkemoi Kiplagat v Zakayo Chepkoga Cheruiyot [2021] eKLR** stated that:- **“It is indisputable that a constitutional petition to be sustainable as such must at a minimum satisfy a basic threshold. It must with some reasonable degree of precision identify the constitutional provisions that are alleged to have been violated or threatened to be violated and the manner of the violation and/or threatened violation. I do not suppose it is enough to** **merely cite constitutional provisions. There has to be some particulars of the alleged infringements to enable the respondents to be able to respond to and/or answer to the allegations or complainants….. Although I have in my foregoing discussion adverted to grounds (c) and (d) of the preliminary objection that there are no Constitutional issues that warrant adjudication by the Court and that the Petition may very well** **constitute an abuse of the due process of the court, I need to observe that parties are increasingly filing matters that are essentially Civil matters and christening the same as Constitutional Petitions which is not proper. Where there is the alternative remedy of filing a suit in the ordinary civil Courts, a party ought to invoke the jurisdiction of the Constitutional Court.” [Own emphasis]** 20. **Rule 4(1)** of the **Constitution of Kenya (Protection of Rights** **and Fundamental Freedoms Practice and Procedure Rules** **2013 (the Mutunga Rules)** provides as follows:- **“Where any right or fundamental freedom provided for in the constitution is allegedly denied, violated, or infringed, or threatened a person so affected or likely to be affected, may make an application to the High Court in accordance to these rules.”** 21. **Rule 10** of the “**Mutunga Rules**” governs the form that a constitutional petition should take **Rule 10(2)** of the said Rules specifically provides as follows: “(2) The petitioner shall disclose the following - **a) The petitioner’s name and address;** **b) The facts relied upon;** **c) The constitutional provision violated;** **d) The nature of injury caused or likely to be caused to the petitioner or the person in whose name the petitioner has instituted the suit; or in a public interest case to the public, class of persons or community;** **e) Details regarding any civil or criminal case,** **involving the petitioner or any of the** **petitioner, which is related to the matters in issue in the petition;** **f) The petition shall be signed by the petitioner or the advocate of** **g) The petitioner; and** **h) The relief sought by the petitioner.”** 22. Guided by the above Rules I find that the Petitioner’s name and full address have been supplied as required. The petition clearly set out a factual background and the alleged contraventions of the constitution were enumerated in the petition. The petition was duly signed by counsel for the Petitioners and the reliefs being sought were clearly stated. I am satisfied that the petition as presented does meet the required threshold for a constitutional petition. 23. The question would arise as to whether the Petitioners right to information under **Article 35** of the Constitution has been violated. The Respondents admit that the Petitioners vehicle Registration No. **KAK 209V** was auctioned by the Auctioneer (2nd Respondent) in order to cover the Storage costs. 24. However it is important to note that this issue arose and was canvassed in a suit filed by the Petitioner Nyeri **CMCC No. 440 of 2007** which suit was eventually dismissed. Instead of filing an appeal against that dismissal the Petitioner files this constitutional petition seeking similar reliefs. This in my view amounts to abuse of court process. 25. **Section 44** of the **Civil Procedure Act** sets out the properties which are liable to attachment and sale in execution of a decree as follows:- **Property liable to attachment and sale in execution of a decree** 1. **All property belonging to a judgment debtor, including** **property over which or over the profits of which he has a disposing power which he may exercise for his own benefit, whether that property is held in his name or in the name of another but on his behalf, shall be liable to attachment and sale in execution of a decree: Provided that the following shall not be liable to attachment or sale -** 1. **the necessary wearing apparel, cooking vessels, beds and bedding of the judgment-debtor and of his wife and children, and those personal ornaments from which, in accordance with religious usage, a woman cannot be parted;** 2. **the tools and implements of a person necessary for the performance by him of his trade or profession;** 3. **where the judgment-debtor is an agriculturalist – (a) the first ten thousand shillings in value of all implements, tools, utensils, plant and machinery used in connection with stock or dairy farming or in the production of crops or plants; and (c) the first one thousand shillings in value of agricultural produce necessary to enable him to earn his livelihood;** **(iv) books of accounts;** 1. **a right to sue in damages** 2. **a right of personal service;** 3. **stipends and gratuities allowed to pensioners of the Government, or payable out of a service family pension fund notified in the Gazette by** **the Minister, and political pensions;** 1. **two thirds of the salary of public officer or other person in employment;** 2. **a contingent or possible right or interest,** **including an expectancy of succession by survivorship;** 1. **a right of future maintenance;** 2. **any fund or allowance declared by law to be** **exempt from attachment and sale in execution of a decree.”** 26. I have perused the copy of the Plaint annexed to the Petitioners Supporting affidavit (dated **26th January 2022**). In that plaint the Petitioner sought the following reliefs;- **“(a) A declaration that the repossession of motor vehicle Registration KAK 209 V by the Defendants was unlawful.** **(b) Damages for loss of income from the date of repossession until the same is restored back to the plaintiff.** **(c) Costs of the suit.** **(d) Interest.”** 27. As stated earlier that suit was dismissed in its entirety. A copy of the judgment dated **1st September 2010** appears as Annexture ‘**D1W5**’ to the Petitioners supporting Affidavit. In that judgment the learned trial magistrate found and held as follows:- **“……………..I therefore find that the plaintiff was aware that he owes the bank money hence the repossession of the Motor Vehicle Registration No. KAK 209 V is lawful…….”[Own emphasis]** 28. Therefore the question of the legality of the repossession and sale of the petitioners vehicle has already been determined by a court of competent jurisdiction. An application by the Petitioner seeking to review that judgment was also dismissed. It is mischievous and smacks of abuse of court process for the Petitioner to file a constitutional petition raising the very same issue instead of filing an appeal against the decision of the Lower Court. This petition is in effect a thinly disguised attempt to appeal and/or review the decision of the Lower Court. 29. Similarly the claim for damages now being raised by the Petitioner was raised and determined in the Civil Suit which he filed in the Lower Court. These matters are now Res Judicata and this court will not make pronouncements on the same issues again. 30. Finally I find no merit in this petition. The same is dismissed in its entirety. Costs to be met by the Petitioner. **Dated in Nyeri this 22nd day of July 2026** **…………………………..** **MAUREEN A. ODERO** **JUDGE**