[2017] KEHC 687 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

PETITION NO. 6 OF 2016

IN THE MATTER OF ARTICLES 10, 19, 20, 21, 22, 23, 73, 75,159,

165, 244 & 258 OF THE CONTITUTION OF KENYA, 2010

AND

IN THE MATTER OF ALLEGED CONTRAVENTION

OFRIGHTSUNDERARTICLES 27,31,40,47 &

50 OF THE CONSTITUTION OF KENYA 2010

BETWEEN

WYSS LOGISTICS LTD...................................................PETITIONER

AND

THE INSPECTOR OF GENERAL OF POLICE....1ST RESPONDENT

THE HONOURABLE ATTORNEY GENERAL.....2ND RESPONDENT

JOSHUA O. OMUGANDA

T/A ESHIKHONI AGENCY AUCTIONEERS......3RD RESPONDENT

KENJAP MOTORS LTD........................................4TH RESPONDENT

RULING

Before court is the Notice of the Preliminary Objection dated 16th July, 2016 filed on behalf of the 3rd and 4th Respondents in this matter. Following directions given by the court on 19/7/2016 the Preliminary Objection was to be determined first. The court further directed that the same be disposed of by way of written submissions. The parties did duly file their written submissions.

BACKGROUND

By way of an agreement dated 5/3/2013 KENJAP MOTORS LIMITED (the 4th respondent herein) agreed to sell to the Petitioner WYSS LOGISTICS LIMITED a motor vehicle Registration KBY 550H at a purchase price of Ksh 3,200,000/=. The Petitioner paid deposit of Ksh 1,500,000/= after which it was granted possession of the vehicle. The Petitioner was required to clear the balance of the purchase price by way of monthly installments of Ksh 340,000/=. The current outstanding balance on the purchase price is Ksh 800,000/=.

On 19/2/2016 ESHIKONI AGENCY AUCTIONEERS (the 3rd respondent), acting on the instructions of the 4th respondent attempted to forcibly repossess the motor vehicle due to unpaid arrears of Ksh 1,065,000/=. The Petitioner resisted this attempted repossession and instead surrendered the vehicle to Central police station Nakuru (represented by the 1st respondent herein) to enable the police conduct investigations and provide him with assistance. The 1st respondent declined to release the vehicle back to the Petitioner and instead detained it until 25/5/2016 without his consent.

The Petitioner then filed the petition dated 22/2/2016 (Amended on 15/3/2016) alleging that the refusal by the 1st respondent to release the vehicle to itself violated its right to own property under Article 40 of the Constitution of Kenya, 2010 and further the Petitioners alleged that the actions of the 1st respondent violated the orders made by this court on 27/2/2016.

The Petitioner further argued that the 3rd respondent could not lawfully seize the vehicle without proper instructions from the 4th respondent, and that the 3rd respondent could not execute orders in Nakuru where the vehicle was situated as this was outside their licensed area of operation. Finally it was argued that the 3rd respondent did not hold a valid licence.

Finally the Petitioner argued that the actions of the respondents infringed its right to property, is right to Fair Administrative action, and its right to have the dispute resolved in a fair manner through the application of law in a public hearing before a court. The acts of the respondents were said to be discriminatory and denied the Petitioner the right to equality before the law.

PRELIMINARY OBJECTION

The 3rd and 4th respondents in addition to their replying affidavits filed this preliminary objection dated 19/7/2016. They asked that the petition be struck out entirely on two main grounds

(i)That the petition raises purely civil matters which amount to a civil dispute governed by the Hire Purchase Act and the Civil Procedure Act

(ii) That the Petitioner has failed to provide in their petition the particulars of its complaint against the respondents and did not indicate the manner in which the 3rd and 4th respondents have infringed on its rights.

As stated earlier the matter was disposed of by way of written submissions. The respondents submitted that the petition offends the principle of substitution or avoidance in constitutional law. This principle provides that the constitution ought not be used as a general substitute for litigating ordinary civil disputes. In the case of UHURU MUIGAI KENYATTA Vs NAIROBI STAR PUBLICATION LTD [2013]eKLR, Hon, Justice Isaac Lenaola (as he then was) held that it is not every ill in society that should attract constitutional sanctions. Such sanctions ought only be reserved for appropriate and serious cases. Likewise the respondents relied on the decision in JOHN HARUM MWAU Vs PETER GASTRON & 3 OTHERS [2014]eKLR where it was held that a court will not ordinarily consider a constitutional question unless the existence of a remedy depends on it. Where a matter can be resolved without recourse to the Constitution, then the constitution ought not be involved at all.

They further contended that the petition has been disguised as a constitutional petition for redress of violation of fundamental rights when in fact it is an ordinary civil dispute elevated into constitutional issue. The Petitioner entered into a hire purchase agreement with the 4th respondent and when the Petitioner failed to honour the terms of the agreement, the 4th respondent tried to repossess the vehicle, a right which had accrued to it under the Hire Purchase Act. The dispute which emanates from the contract is private and commercial in nature and should be treated as such. The Petitioner has not alleged that the existing remedies are inadequate.

It is further submitted that this petition falls short of the requirements of a petition, it does not provide for the particulars by which the right has been infringed, in STEPHEN NYARANGI ONSUMA & ANOTHER Vs GEORGE MAGOHA & 7 OTHERS [2014] eKLR the court held that a petitioner must state the provision infringed and the manner in which it has been infringed. In addition, the petition is an abuse of the court process, intended to frustrate the efforts of the 4th respondent to repossess the motor vehicle. It was further contended that the petitioner is undeserving of the orders of the court because he has come with unclean hands. He had breached the contract and had issued bad cheques to the 4th respondents and therefore it cannot file a claim against the respondents under article 40 of the Constitution.

On their part the Petitioner submitted that the 3rd and 4th respondents have properly been enjoined in this petition. They relied on rule 5(b) of the Civil Procedure rules that provide that a suit shall not be defeated by reason only of a misjoinder or non-joinder of parties. They further submitted that rule 5(a) of the Constitution (Protection of Fundamental Rights and Freedoms) Practice and Procedure rulesallows a petitioner who is in doubt as to the person from whom redress should be sought to join 2 or more persons in order that the question of which respondent is liable and to what extent may be determined between the parties.

The Petitioner further submitted that the preliminary objection filed by the 3rd & 4th respondent did not raise points of law and thus did not meet the threshold set out in the case of MUKISA BUSCUIT CO. LTD Vs WESTEND DISTRIBUTORS LTD [1969] E. A 696.

The Petitioner submitted that it is not seeking to enforce merely a contractual or a civil right. It is seeking to enforce its right to property. The Petitioner therefore urges the court to dismiss this preliminary objection in its entirety.

ANALYSIS AND DETERMINATION

By this Preliminary Objection the respondents argue that what is before the court is purely a civil claim which ought to be litigated under the Civil Procedure Act and the Hire Purchase Act. They challenge the propriety of bringing such matters before the Constitutional court for determination.

The 3rd and 4th respondents rely on the principle of avoidance in support of their objection. This principle provides that courts ought to decline to exercise their constitutional jurisdiction in cases is here there exists other equally effective remedies to determine the dispute. Where a fundamental rights is regulated by legislation then it is that legislation and not the constitution that becomes the primarily means giving effect to that right (see GMV Vs Bank of AFRICA KENYA LIMITED [2012] eKLR). In such circumstances, the courts will normally decline to entertain the matter. Parties should only resort to the constitutional court of the existing means of redress would prove inadequate (FOUR FARMS LIMITED Vs AFC [2014] eKLR).

I do agree with the above position. The constitution is the bedrock and the foundation of all rights and duties and it is from this constitution that all other rights flow. Where there exist other avenues through which a night can be realized, then those avenues must be exhausted first. The constitution should only be resorted to in the absence of other effective remedies. The constitutional court ought not be used to displace other legal channels provided for redress. The Petitioner alleged that it had filed its petition in order to assert its right to property under Article 40 of the Constitution. This allegation has 2 distinct parts. Firstly the allegation against the 1st and 2nd respondents whose officers have continued to detain the vehicle in question without the consent of the Petitioner. When the 3rd respondent attempted to seize the vehicle the Petitioner went and surrendered it to the police who without any lawful justification have refused to release the vehicle back to the Petitioner. The question is whether the actions of the police were arbitrary and contrary to Article 40.

Secondly the Petitioner is challenging the intended repossession of the vehicle by the 4th respondent. It has argued that having paid over two-third of the purchase price the Petitioner has acquired a proprietary interest in the vehicle which interest cannot be arbitrarily taken away by the respondents.

The Petitioner argued that the 3rd respondent is not licenced to carry out operations within Nakuru County where the vehicle is situated. In attempting to repossess the vehicle the 3rd respondent exceeded its powers.

In opposing the preliminary objection the Petitioner argued that the 4th respondent in any event, had no right to repossess the vehicle as the Petitioner had honoured the terms of their sale agreement by paying the purchase price.

In addition having paid over three–quarters of the purchase price the Petitioner has acquired rights over the vehicle which supercede the rights of the 4th respondent. The Petitioner also disputed the amount claimed by the 4th respondent to be the outstanding balance due on the purchase price.

The Petitioner has admitted that in further attempts to repossess the vehicle, the 3rd respondent has filed suit before the Kisumu Magistrate’s Court, Miscellaneous Application No. 34 of 2016, seeking orders directed at the police compelling them to provide security to the 3rd respondent during the seizure and repossession of the motor vehicle or in the alternative, to compel the Petitioner to surrender the motor vehicle to the police who in turn shall investigate the matter.

In my own view the dispute over ownership and right to property and the question of whether the 3rd respondent can legally repossess the motor vehicle can be properly litigated relying on statutes provided in law. It is the ordinary courts and not the constitutional which are seized with the matter concerning the forceful repossession of the vehicle and are best suited to determine the second limb of the petition being the dispute between the petitioner and the 3rd and 4th respondents.

This court sitting as a constitutional court has jurisdiction to determine the dispute as between the petitioner and the 1st and 2nd respondent, which touches on the question of whether the police have acted arbitrarily and infringed on the petitioners right to property.

CONCLUSION

Based on the foregoing, I find that this preliminary objection only succeeds partially. This court is only properly seized of the dispute between the petitioner and the 1st and 2nd respondents. The petitioner’s dispute with the 3rd and 4th respondent, should be presented for determination in the lower court where the 3rd respondent had filed a claim seeking orders to enable it to repossess the vehicle as instructed by the 4th respondent. As such this latter limb of the petition is hereby struck out. Costs are awarded to the 3rd and 4th respondents.

Dated in Nakuru this 18th Day of July, 2017.

Maureen A. Odero

Judge