The applicant by way of a notice on motion dated 23rd July 2024 has come to court seeking the following orders against the respondent:-
THAT this application be certified as urgent.
THAT the DCIO Parliament Police Station be summoned to explain why he is holding M/V Registration Number KAW 141B TOYOTA STATION WAGON at Parliament Police Station.
THAT the 1st interested party do produce all documents in his possession confirming the purchase by way of Public Auction and subsequent legal transfer to the applicant herein.
THAT the said Motor Vehicle Registration Number KAW 141B be released to NICHOLAS JENNESON TAYLOR the applicant herein upon production of ownership documents.
THAT the complainant one NGIKOLONG NICHOLAS NGIKOR do provide ownership documents for the said Motor Vehicle Registration Number KAW 141B for veracity.
The application is supported by an affidavit sworn by Nicholas Jenneson Taylor the applicant.
The application is expressed to be brought under Section 357 of the Criminal Procedure Code and all other enabling provisions of the law. It is clear from the body of the application that the dispute is about the detention of motor vehicle registration number KAW 141B which is currently held by the Directorate of Criminal Investigations.
The applicant has expressly stated that he owns motor vehicle KAW 141B having bought it from the first interested party in the year 2022 a fact that has not be denied by either the respondent or the second interested party.
At the hearing of this application Mr. Ayiro Advocate appearing for the applicant informed this court that the first interested party has since died and at the time of his death he had not filed a response to the application thus given that dead men tell no tales, this court could not benefit from his side of the story regarding the transfer of ownership of the motor vehicle to the applicant. The court is therefore left to deal with the matter based on the information provided by the applicant, the investigating officer and the second interested party.
Mr. Chebii appeared for the respondent and all that he told the court was that the respondent had filed an affidavit in response which he relied on entirely and went further to inform the court that the file was before the DPP for directions and he therefore pleaded with this court for time to allow the DPP issue directions regarding the results of the investigations. Counsel for the respondent did not however tell the court how much time he would require to enable his office review the file and give directions.
I must say that his request was therefore omnibus and came in a form that would leave the matter open to the risk of delay in the determination of the rights of the applicant in relation to the motor vehicle.
There was no denial in the respondents replying affidavit and through submissions by counsel that the motor vehicle is owned by the applicant. The second interested party was represented in these proceedings by Mr. Mwachofi Advocate who informed the court that the second interested party filed a replying affidavit dated 3rd October 2024 and counsel submitted that at the time of seizure of the motor vehicle it was in the hands of the second interested party.9.
Mr Mwachofi was emphatic that his client does not claim ownership of the motor vehicle but he was the one who made a report to the police in the connection in this matter. 10.
Counsel went further to state that his client the second interested party was holding the motor vehicle for a friend but counsel did not divulge who the said friend was despite this court having asked him to specifically name the individual.
Mr Mwachofi maintained that the second interested party does not lay claim to the ownership of the motor vehicle.
The respondent alleged that they were investigating alleged theft of the motor vehicle and according to them the theft occurred between November 2019 and May 2022. The respondent was however clear that the incident was reported vide OB 29/6/5/2024 the reportee being the second interested party.
The factual matrix summarizes the case for the parties.
ANALYSIS AND DETERMINATION.
The application by the applicant is clearly brought under the wrong provision of the law. Section 357 of the Criminal Procedure Code provides:-
Admission to bail or suspension of sentence pending appeal
(1) After the entering of an appeal by a person entitled to appeal, the High Court, or the subordinate court which convicted or sentenced that person, may order that he be released on bail with or without sureties, or, if that person is not released on bail, shall at his request order that the execution of the sentence or order appealed against shall be suspended pending the hearing of his appeal:
Provided that, where an application for bail is made to the subordinate court and is refused by that court, no further application for bail shall lie to the High Court, but a person so refused bail by a subordinate court may appeal against refusal to the High Court and, notwithstanding anything to the contrary in sections 352 and 359, the appeal shall not be summarily rejected and shall be heard, in accordance with such procedure as may be prescribed, before one judge of the High Court sitting in chambers.
(2) If the appeal is ultimately dismissed and the original sentence confirmed, or some other sentence of imprisonment substituted therefor, the time during which the appellant has been released on bail or during which the sentence has been suspended shall be excluded in computing the term of imprisonment to which he is finally sentenced.
(3) The Chief Justice may make rules of court to regulate the procedure in cases under this section.
The section deals with post-conviction orders as opposed to the order that the applicant seeks before this court. The applicant is extremely lucky that he has come to court under a constitutional dispensation that emphasizes on substantive justice as opposed to procedural technicalities whenever a question dealing with enforcement of rights is presented to court.
This court entertained the application on the basis of the provisions of Article 20 of the Constitution which provides:-
(1) The Bill of Rights applies to all law and binds all State
organs and all persons.
(2) Every person shall enjoy the rights and fundamental freedoms
in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom.
(3) In applying a provision of the Bill of Rights, a court shall—
(a) develop the law to the extent that it does not give effect to a
right or fundamental freedom; and
(b) adopt the interpretation that most favours the enforcement of
a right or fundamental freedom.
(4) In interpreting the Bill of Rights, a court, tribunal or other
authority shall promote—
(a) the values that underlie an open and democratic society
based on human dignity, equality, equity and freedom; and
(b) the spirit, purport and objects of the Bill of Rights.
(5) In applying any right under Article 43, if the State claims that it
does not have the resources to implement the right, a court, tribunal or other authority shall be guided by the following principles—
(a) it is the responsibility of the State to show that the resources
are not available;
(b) in allocating resources, the State shall give priority to ensuring
the widest possible enjoyment of the right or fundamental
freedom having regard to prevailing circumstances, including
the vulnerability of particular groups or individuals; and
(c) the court, tribunal or other authority may not interfere with a
decision by a State organ concerning the allocation of
available resources, solely on the basis that it would have
reached a different conclusion.
A reading of this article enjoins this court to ensure that the enforcement of fundamental rights is given great significance whenever an individual approaches the court against a back drop of allegations of gross violation of rights. The court before whom such a party appears, must be prepared to adopt the interpretation that most favors the enforcement of a right or fundamental freedom and ensure that in determining the rights of a person all state organs and persons are held to account whenever a person alleges the contravention of their rights.
Article 40 protects the right to property and allows any person who has an interest in or right over that property a right of access to a court of law, it therefore follows that the High Court being the court that is vested with the jurisdiction to determine the question whether a right of a fundamental rights has been denied , violated, infringed or threatened should never shut its doors to such a litigant once he has approached the court for redress, no matter the form.
The omission by counsel for the applicant to cite the appropriate provisions of the law under which he seeks reprieve is an excusable mistake and since a matter of violations of rights is so fundamental, it cannot be sacrificed at the altar of procedural technicalities which Article 159 of the Constitution expressly forbids such action.
Having said so I now turn to the question; should counsel for the respondent be granted time to allow the office of the DPP an opportunity to review the investigation file and give directions ad infinitum?
The respondent needs to know that under the present constitutional dispensation it is no longer tenable to allow state organs the luxury to drag their feet in the discharge of their function. It is completely unacceptable that an investigation touching on the theft of a motor vehicle reported way back on 6th May 2024 has not been concluded and directions given by the DPP to date.
The respondent does not deny that all along the motor vehicle has been in their custody thus denying the applicant the use thereof. It is even more intriguing that the second interested party who reported the alleged theft of the motor vehicle did so but has not been able to tell this court on whose behalf he was holding the motor vehicle at the time of seizure.
The second interested party was less than candid with this court when the court sought to know from counsel, who the mysterious friend on whose behalf the motor vehicle was being held.
In the circumstances this court is minded to find that the applicant has been denied his right under Section 4 of the Fair Administrative Act No.4 of 2015 by the respondent.
The Section provides:- “every person has the right to administrative action which is expeditious, efficient, lawful , reasonable and proceduraly fair” the continued detention of the motor vehicle bears the foul oduor of procedural unfairness.
The applicant’s counsel in his submission undertook before this court to ensure that in the event this court agrees to have the motor vehicle released to the applicant the same shall be held by the applicant who will be willing to avail it to the respondent or the court if at all the results of the investigations result into a direction by the DPP for prosecution.
In the premises, balancing the applicant’s right to property against the constitutional authority of the National Police Service to investigate crimes as well as the DPP’s independence to make prosecutorial decisions, I have come to the irresistible conclusion that it is only fair to order the release of the motor vehicle to the applicant on condition that he shall hold the same in his name until such time that the DPP shall have made the final decision on the matter and in any event since the DPP is not under the direction or control of anybody or authority under Article 157 (10) of the Constitution this court will not venture into giving timelines as to when that decision should be taken but of course hold that it should be within a reasonable time.
The applicant shall remain at liberty, should he desire to dispose off the ,motor vehicle before a decision is made by the DPP, to apply to the court for the discharge of the order requiring him to continue holding the motor vehicle in his name.
The applicant’s application is therefore allowed.
It is so ordered.