Skip to content
JudgmentJames Maina Mugo VS The Attorney General AND The Inspector General Of Police AND 1 Others10 min read

James Maina Mugo VS The Attorney General AND The Inspector General Of Police AND 1 Others

High Court at Nyeri High Court · · Maureen Odero


CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. E010 OF 2022

JAMES MAINA MUGO…………………………………….…..PETITIONER

VERSUS

THE ATTORNEY GENERAL………………………………1ST RESPONDENT

THE INSPECTOR GENERAL OF POLICE……………2ND RESPONDENT

MAJOR GEORGE MURIITHI MUTHEE ………………3RD RESPONDENT

JUDGEMENT

  1. Before this court is the Petition dated 16th November, 2022 by which the petitioner JAMES MAINA MUGO seeks the following orders:-
  2. A declaration be issued that the actions of the 2nd and 3rd Respondents as averred are unconstitutional and infringe on the Petitioner’s rights and freedom being:
  • Right to equal protection and equal benefit of the law.
  • Right to protection of right to property.
  • Freedom from discrimination.
  1. Damages for breach of the petitioner’s constitutional rights and freedoms.
  2. An injunction directed to the 2nd and 3rd Respondents to return the motor vehicle to the Petitioner, in default whereof the said Respondents do compensate the petitioner with the value of the motor vehicle at an estimate of Kshs. 700,000/=
  3. An Order that the Respondents do compensate the petitioner for loss of user of the motor vehicle at the rate of Kshs. 3,000 per day from 28th January, 2022 to the date of return of the motor vehicle or compensation for the value thereof as prayed in (c) above.
  4. Damages for the tortious acts of defamation, misfeasance in Public Office and conversion of property.

         (f)    Costs and interest.”

(2)  The petition was premised upon Articles 2(1), 3, 10, 20, 21, 22, 23,

       27, 40, 50 and 159 of the Constitution of Kenya 2010 and was

      supported by the Affidavit of even date and the Further Affidavit dated

29th March, 2023 both sworn by the Petitioner.  The 1st Respondent   

      the Hon. Attorney – General opposed the Petition through the

      Replying Affidavit dated 17th February, 2023, sworn by ERICKSON

      NYAMWEGA a police officer attached to Kieni East Sub-County DCI

Office.

(3)  The 3rd Respondent GEORGE MURIITHI MUTHEE filed a Replying

      Affidavit dated 18th January, 2023 whilst the Auctioneer PETER

MUCHUME GACHIE an Auctioneer practicing under the name and

      style of REGENT AUCTIONEER (N) LIMITED filed a Replying

      Affidavit dated 27th March, 2023.

(4)  The matter was canvassed by way of written submissions.  The Petitioner

      filed the written submissions dated 18th March, 2024 whilst the 1st and

      2nd Respondents relied upon their written submissions dated 22nd

      March, 2024.

BACKGROUND

(5)   The Petitioner avers that on or about 18th August, 2014 he lawfully

        purchased a Motor vehicle Registration Number KCH 743 B Toyota

        Station Wagon DX (herein after referred to as ‘the motor vehicle’)

        following an auction conducted by Regent Auctioneers upon

        instructions from the National Police Service.

(6)  That following the auction and payment of the requisite purchase price

       the petitioner was on 31st May, 2016 issued with the log book for the

       vehicle and took possession of the said motor vehicle.

(7)  The Petitioner states that on or about 28th January 2022 at about

8.00pm, he was driving the said motor vehicle along the Nyeri-

Nyahururu Highway when he noticed, that another vehicle was

       suspiciously following him.  The Petitioner being apprehensive drove

       into Naro Moru Police Station and the vehicle which had been

       trailing him also drove into the police.

(8)  Inside the police station, the five (5) occupants of the second vehicle  

      alighted and claimed that they had been pursuing the Petitioner because  

      they believed that the vehicle which the Petitioner was driving had been

      stolen from the 3rd Respondent Major George Muriithi Muthee.

(9)  The 3rd Respondent narrated sometime in the year 2010 that, he had

       purchased a motor vehicle Registration Number KAW 366J from one

CALEB OPIYO ODHIAMBO.

10.   That on 27th October, 2013 the 3rd Respondent parked his motor

        vehicle at Kibirichia Market in Meru County.  Upon returning he

        found the vehicle missing and reported the theft at Kiirwa Police

        Station, Githongo Police Station and Timau Police Station. 

        However despite efforts by the police the vehicle was never traced.

11.  On 28th January 2022, nine (9) years after the theft of his vehicle

       the 3rd Respondent was driving to Meru when near Brookside -

       Chaka he noticed a car which looked similar to his stolen vehicle but

       which vehicle bore Registration Number KCH 743B.  The 3rd

       Respondent attempted to flag down the vehicle but the driver sped off

       towards Naro Moru Police Station.

12.  At the police station after hearing the parties police seized the Petitioners

      Motor vehicle pending investigations.  On 29th January, 2022 the  

      Petitioner went to the police station and presented his ownership  

      documents for the vehicle.  However the police concluded that the

      vehicle belonged to the 3rd Respondent and on 31st January, 2022

       released the motor vehicle to the 3rd Respondent.

13.   The Petitioner was ordered to report regularly at the police station until

25th March, 2022 when he was informed that investigations into the  

       matter had been closed.  The Petitioner requested that his vehicle be

        released back to him but this was not done.

14.   The Petitioner contends that the actions of the Respondents amounted

        to a denial of his constitutional rights to ownership and use of his motor

        vehicle.  That as a result of denial of his vehicle he was forced to hire

        alternative transport at the rate of Kshs. 3,000/= per day.  The

        petitioner also claims for a reimbursement of the value of his motor

         vehicle being Kshs. 700,000.  The Petitioner alleged that the

         Respondents violated, breached and infringed his constitutional rights

         and freedoms in the following manner;-

  1. The seizure of the motor vehicle was unlawful in the circumstances the motor vehicle having been legally acquired from the same 2nd Respondent who had sold the same to the Petitioner as averred.
  2. The seizure of the motor vehicle was unlawfully seized for lacking any factual or legal basis.
  3. The seizure of the motor vehicle was apparently done with improper and ulterior motives of unjustly enriching the 3rd Respondent, while denying the Petitioner his property.
  4. The seizure of the motor vehicle was maliciously done as the 2nd Respondent was aware of the Petitioner’s ownership thereof having sold the same to him.
  5. The seizure of the motor vehicle and disposal thereof to the 3rd Respondent denied the Petitioner the right of possessing enjoying and owing the motor vehicle, thus infringing on the Petitioner’s right to protection of right to property.
  6. The act of the 3rd Respondent of using police powers to unlawfully obtain the motor vehicle, and the 2nd Respondent allowing itself to be so used infringed on the Petitioner’s right to equal benefit and protection of the law.
  7. The acts of the 2nd Respondent of citing the Petitioner for a criminal offence and subjecting him to the criminal process were in breach of the duty to respect, protect, promote and fulfill the Petitioner’s rights and freedoms by the 2nd Respondent.

15.  On their part the police represented by the 1st Respondent avers that

      he was instructed by his OCS KELLER MAKAU to conduct

      investigations in order to establish the genuine owner of the motor

      vehicle in question.  He noted that the chassis number of the vehicle

      had been tampered with.  That however before concluding

      investigations he was instructed by the OCS to release the vehicle to the

      3rd Respondent.

ANALYSIS AND DETERMINATION

16.  I have carefully considered this petition, the replies filed thereto as well

      as the written submissions filed by the parties.  The first question is

      whether the petition as framed meets the threshold of a constitutional

      Petition.

17.  The courts jurisdiction on constitutional Petitions is pegged upon Article

      165 (3) (b) as read together with Articles 22(3) and 3(b) and 23 of the

constitution of Kenya 2010 which govern the power, process,

      procedure and remedies for a person seeking to enforce the Bill of

      Rights.

18.  In the case of ANARITA KARIMI NJERU -VS- REPUBLIC [1979]

       eKLR the court stated this;-

“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”

19.  The crux of the Petitioners complaint is the question of ownership of

       the motor vehicle Registration KCH 743 B.  The Petitioner insists that

       the vehicle belongs to him whilst the 3rd Respondents asserts that this

       is the same vehicle which was stolen from him way back in the year

2010.

20.  The Petitioner alleges that the Respondents violated and infringed his

       rights by unlawfully seizing his motor vehicle.  That the actions of the

       2nd Respondent denied him his right to equal protection and equal

       benefit of the law as well as his right to own property and amounted

       to discrimination against the petitioner.

21.  The National Police Service is created under Article 243 of the

Constitution of Kenya 2010.  Section 26 (1) (c) of the Criminal

        Procedure Code gives the Police power to detain and search aircraft,

       vessels, vehicles and persons.  It provides as follows:-

       “26 (1) (c) a police officer or other person authorized in writing

        in that behalf by the Commissioner of Police may stop search

        and detain any person who may be reasonably suspected of

    having in his possession or conveying in any manner anything

    stolen or unlawfully obtained.

22.  Further section 26 (2) of the Criminal procedure Code provides

       as follows:-

No person shall be entitled to damages or compensation

               for loss or damage suffered by him in respect of the

               detention under this section of an aircraft, vessel or

               vehicle.

23. Therefore the seizure of the motor vehicle done was in accordance with

      the power bestowed to the 2nd Respondent for it to conduct

      investigations. 

24. In Kipoki Oreu Tasur vs Inspector General of Police & 5 others

      (2014) eKLR held as follows:-

“………..The Criminal Justice system is a critical pillar of our society. It is underpinned by the Constitution, and its proper functioning is at the core of the rule of law and administration of justice.  It is imperative, in order to strengthen the rule of law and good order in society, that it be allowed to function as it should, with no interference from any quarter, or restraint from the superior courts, except in the clearest of circumstances in which violation of the fundamental rights of individuals facing trial is demonstrated.”

25.  Accordingly I opine that in seizing the vehicle pending investigations the

      police were merely carrying out their mandate as provided for in law. 

      As such the police cannot be said to have acted unlawfully.

26.  As stated earlier the substratum of this Petition is the Petitioners claim

      to ownership of the motor vehicle.  The Petitioner insists that he

      legitimately acquired the said motor vehicle through a sale by auction. 

      Following police investigations the Petitioner was charged with the

       offence of Being in Possession of a stolen Motor vehicle contrary

       to Section 324 of the Penal Code.  This court has not been told of the

        outcome of that case.

27.  It is further revealed that there were two different opinions regarding

      the vehicle.  The Investigating officer opined that the chassis number of

      the motor vehicle had been interfered with whilst the Forensic Expert

      held the view that the Chassis number had not been interfered with.

28.  There are not issues which this court can comment and/or decide on. 

       There are issues which can only be determined under the ambit of a

       criminal trial.

29.  The petitioner also seeks orders of reimbursement for the vehicle at

Kshs. 700,000 and he also prays that the Respondents be ordered to

       reimburse him for the costs incurred in hiring alternative transport at

       the rate of Kshs. 3,000/= per day.

30.  Once again there are not issues to be determined under a

      constitutional petition.  These are Civil Claims which the Petitioner ought

      to pursue by filing a civil suit against the Respondents.

31.  The petitioners allegation that he has been subjected to discrimination

       has also not been proved. 

32.  In Mohammed Abduba Dida v Debate Media Limited & another

       [2018] eKLR the court stated on proof of discrimination as follows:-

“……unless it can be demonstrated that such selection or differentiation is unreasonable or arbitrary and created for an illegitimate or surreptitious purpose.  And the second is that, whether or not there has been a violation of the Constitution should be determined by applying a three-stage enquiry to the circumstances of each case.  The three stage enquiries are; firstly, whether the differentiation created by the provision or rules has a rational or logical connection to a legitimate purpose; if so, a violation of article 27 will not have been established.  If not, a second enquiry would be undertaken to determine whether the differentiation gives rise to unfair discrimination. If it does not, there is no violation of the constitution.  But if the selection or differentiation gives rise to unfair discrimination, then the third enquiry would be necessary to determine whether it can be justified within the limitation provisions of the constitution.” [own emphasis]

33.  There is nothing to show that the actions of the police in detaining the    

       vehicle and investigating the matter were unreasonable and /or

arbitrary.  The police were acting on complaints (report) made by the 3rd Respondent Based on the above I find that this petition does not meet the threshold for a constitutional petition.  The same is hereby dismissed in its entirety.  Costs will be met by the Petitioner.

Dated in Nyeri this 4th day of July, 2024.

…………………………………………