Paul Njung'e Gikaru VS National Transport And Safety Authority Paul Njung'e Gikaru VS National Transport And Safety Authority

INTRODUCTION

The applicant by way of a Notice of Motion dated 8th March 2023 sought the following orders from this court.

a) Spent
b. THAT the 1st Respondent be directed to produce to this Honorable court the investigation file involving motor vehicle registration seized while bearing registration number KCL 498P Toyota FIELDER detained at EMBAKASI police station since 2020.
c. THAT this Honorable court be pleased to issue an interim order directed to the Respondents compelling them to unconditionally facilitate and issue fresh registration numbers, log book and release to the applicant his motor vehicle, Toyota FIELDER impounded by 1st Respondent while bearing registration number KCL 498P (Chassis number NO. NZE141-9183118 & Engine No 1NZ-D844789) and currently being held at EMBAKASI Police Station.
d. THAT this Honorable court be pleased to declare that the conduct of the 1st Respondent in instructing its officers to seize and detain the subject motor vehicle indefinitely without a complainant and failure to arrest or prefer any charges against anyone was punitive, wrongful, unlawful and a violation of the Applicant's Constitutional right to enjoyment of private property.
e. THAT the loss and or costs occasioned by the seizure and detention of the subject motor vehicle since seizure by the 1st Respondent be met by the Respondents and the applicant be compensated for the same together with interest.
f. THAT this Honorable court be pleased to make such other order as will guarantee the applicant's right to the subject motor vehicle or as may meet the ends of justice.
g. THAT in the alternative, the Respondents be ordered to finalize any pending investigations and/ or prosecution within 3 months or any other set timeline failure to which order 3 above shall automatically apply.
h. THAT cost of this Application be in the cause.

The application is premised on the grounds on the face of the application and the supporting affidavit sworn by the applicant.

APPLICANT’S CASE

According to the applicant,

a. He lawfully purchased motor vehicle bearing registration number KCL 498P (Chassis number NO. NZE141-9183118 & Engine No INZ-D844789) with a genuine log book duly registered in the 2nd respondent's online system.
b. The Applicant bought the said motor vehicle from TIMOTHY MUIGA MWANGI of ID No.22406432 of 0727087233 and 0722698611.
c. The Applicant had secured a loan using the said motor vehicle as collateral whose ownership and registration was confirmed by the 2nd Respondent to facilitate the registration of charge.
d. The subject motor vehicle was registered jointly between the applicant and Musoni Microfinance upon the remittance of the loan to the applicant.
e. Around March 2020, the Applicant presented the motor vehicle for a trade-in at a motor vehicle yard where the 1st Respondent's officers impounded the subject motor vehicle on the grounds that it had same registration numbers with another motor vehicle thus, they needed to ascertain the authenticity of both registration numbers.
f. The applicant upon being summoned presented the 1st Respondent's officers with the original log book. Sale agreement, copies of identity cards and contacts of the seller to facilitate investigations.
g. The Applicant accompanied the 1st Respondent's officers to the seller's rural home in Nyeri in the course of investigations. The seller was later apprehended in a different case involving the 2^nd Respondent and the information was communicated to the 1^st Respondent.
h. The impounded motor vehicle has remained in the police station yard, under the custody of the 1st Respondent. The applicant has not been updated on the progress of any investigation or charges against the seller since 2020 despite the Applicant providing the 1st Respondent with all the necessary information. The main suspect despite being arrested on a similar allegation was not charged with the offence related to the applicant's motor vehicle.
i. The Applicant is apprehensive that the investigation has apparently stalled and there was no justification for the 1st Respondent to continue holding the subject motor vehicle. The applicant contends that the investigations has taken too long, it has caused him tremendous losses and led to wastage and depreciation of the motor vehicle. The applicant has maintained that the Respondents will not be prejudiced since the motor vehicle was impounded in 2020 and has had sufficient time to carry out any investigations.
RESPONDENT’S CASE

In response to the application, the 1st respondent through a replying affidavit sworn by NO.235567 C.I Simalo Dorcas on 18th April 2023 deposed that there existed two vehicles registered as KCL 498P.they had the same chassis number NZE141-9183118 and engine number INZ-D844789. They were both grey and silver in color and are of the same make. TOYOTA FIELDER
The deponent at paragraph 8 of the affidavit stated that one RAHAMA HAJ OSMAN SHEIKH SAID was the initial owner of the subject motor vehicle and had sold it to the applicant. She deposed that they had established that there were records showing one RAHAMA HAJ OSMAN SHEIKH SAID as the owner and that of the motor vehicle and that her records were found to be authentic and genuine as opposed to the ones held by the applicant
The applicant was arrested and upon investigations exonerated from any criminal culpability, however, the subject vehicle was detained after plucking off its registration number plates and the log book impounded.
The deponent went further and deposed that as such conducted at NTSA indicated that RAHAMA HAJ OSMAN SHEIKH SAID was the owner of the motor vehicle had sold it to PAUL NJOROGE GIKAU the applicant.
The alleged sale was however disputed by the husband of Rahama Hussein, Dr. Abdulrahman Said who made a report at Embakasi Police Station indicating that he had learned of a motor vehicle bearing trhe same registration number being sold at a motor vehicle yard along Kiambu road.
The officer went further to depone that upon conducting a forensic restoration of the engine and chassis numbers in the presence of Raham Haj Osman Sheikh and Paul Njoroge Gikaru they were able to determine log book number K1496521A held by Rahama Haj Osman Sheikh Said was the genuine document for motor vehicle KCL 498P.
The Forensic restoration report revealed that the vehicle allegedly owned by the applicant bore no readable chassis number and engine number since the numbers inserted were similar to those of the motor vehicle owned by Rahama Haj Osman Sheikh Said.
The forensic report further indicated that the numbers inserted on the motor vehicle recovered from the yard and allegedly owned by the applicant shed off after the application of the restoration chemical.
The 1^st respondent further contended through Chief Inspector Simalo Dorcas that they have repeatedly mad effort to arrest one Timothy Muigawho is said to have sold the motor vehicle to the applicant in order to have him charged in connection with the motor vehicle but the efforts have not borne fruit.
It is on that basis that the 1^st respondent explains that the motor vehicle continues to be held.
The respondents are still awaiting directions on the matter from the Director of Public Prosecutions office Makadara according to the deponent who annexed a letter showing that the file was sent to ODPP Makadara on 7^th August 2022.

ISSUES FOR DETERMINATION

Whether the police have a right to seize and detain property pending investigations.
Whether the Motor vehicle in issue should be released to the applicant

ANALYSIS AND DETERMINATION

The applicant submits that the 2nd defendant is the custodian of motor vehicle ownership records. It issued and confirmed the authenticity of the log book issued to the applicant. It also facilitated the transfer of ownership of motor vehicle from the seller to the applicant.
The applicant submits that if the log book of the subject motor vehicle was not authentic, the online system of the 2nd defendant would have indicated it during the motor vehicle search which was conducted prior to the transfer. The subsequent online transfer would have failed.
The applicant further submits that the 2nd respondent system could not have maintained two motor vehicles with identical registration numbers and other identification details without complacence on their part. The applicant submits that he ought not be subjected to suffering on account of 2nd respondent's indolence and complacence.
Further, the applicant submitted that it was the 2nd defendant who facilitated the applicant to obtain a good log book through its system and should not be allowed to subject the applicant to further losses.
The applicant further submits that he followed the due process and was issued with a good log book by the 2nd Respondent. The applicant therefore contends that it would be hypocritical for the 1st respondent in collusion with the 2nd respondent to disown an official document they issued in a lawful process to the applicant.
According to the applicant, both respondents were culpable in double registration of motor vehicle documents in a conspiracy to defraud innocent buyers. It is his contention that the 1st Respondent has failed to apprehend and prosecute the person who sold the motor vehicle to him thus the respondents should not be allowed to continue holding on to the motor vehicle.
The applicant further submitted that it is incredible that the police have taken over two years without effecting arrest of Timothy Muigawho sold the motor vehicle to him despite him having provide overwhelming leads on the whereabouts of the suspect. It is equally astonishing that an investigative file is alleged to have been forwarded to the D.P.P offices in Makadara and no response has been made within over one year.
The applicant submits that he was not implicated in any wrong doing with regard to the documentation of the subject motor vehicle. The 1^st and 2^nd respondents have not pursued any investigations as to how the 2^nd respondent approved the ownership of the subject motor vehicle and facilitated the transfer of the same to the applicant.
The applicant submits that the refusal by the 1^st Respondents to fully investigate the matter or charge the suspect while retaining the subject motor vehicle amounts to an infringement of his rights and an abuse of the criminal procedure process.
The applicant further submitted that he was not implicated in any offence. The 1st Respondent has not addressed the issue as to how their systems cleared the sale and transfer of the subject motor vehicle to the applicant. It was through the said system that the applicant was able to charge the subject motor vehicle to a microfinance. This was only possible upon authentication of ownership documents by the 2nd Respondent.
The applicant maintains that he was an innocent purchaser for value and that he followed the due process and paid the money for purchase of the subject motor vehicle. The 2^nd respondent authenticated and approved the entire process. No officer of the 2nd Respondent was apprehended in the purported investigations. failure to conduct a comprehensive investigation by the 1st respondent implies malice aimed at dispossessing the applicant of the subject motor vehicle.
The 1^st Respondent admitted that it had prepared its prosecution file and handed it to the office of the D.P.P, the said office did not act on the file as no charges were preferred against any of the suspects. No warrants were issued. The applicant urges the court not to allow the further detention of the motor vehicle if no charges are being preferred against the seller or officials of the 2^nd Respondent.
The applicant submits that the respondents should be called upon to demonstrate their effort in apprehending any suspect or to close the matter and release the applicant's motor vehicle.
The applicant submits that the 1st respondent had an opportunity to apprehend and charge the suspect, the applicant shared information that the accused was already in custody on an allegation, the 1st respondent declined to appropriate action on account either laxity or a hidden agenda to dispossess the applicant of the subject moto vehicle.
The applicant contends that equity cannot suffer a loss without a remedy.

Article 23 (3) of the Constitution of Kenya sets out the type of reliefs that a litigant with a matter touching on violation of rights may grant. These include among others, (e) an order for compensation

The applicant submits that the 1st and 2nd respondents ought to operate within the law, their claim over the ownership of the subject motor vehicle should have either been pursued or terminated. The applicant as an innocent purchaser for value to the tune of ksh 720,000 ought to be compensated or have the subject motor vehicle returned to him.
The Respondents on their part maintain that investigations in the case at hand are still underway since the police file has been forwarded to the office of the Directorate of Public Prosecutions for directions.
The respondents further submit that the SCCIO EMBAKASI is pursuing to arrest one TIMOTHY MUIGA who is suspected to have sold unregistered motor Vehicle to the applicant.
The respondents therefore hold the view that the prayers sought by the Applicant are pre- mature and are only meant to circumvent the just due process of law.
It is on that basis that the respondents urge that the application by the applicant be dismissed.
The applicant has certainly made a very strong case that he is an Innocent purchaser for value of the motor vehicle KCL 498P from one Timothy Muiga thus he ought to be allowed to keep the subject motor vehicle as his.
However, the applicant appears not to recognize the fact that one can only acquire good title from a person who holds a good title to the property under the principle nemo dat quod non habet .The applicant therefore in order to persuade the court to release the subject motor vehicle to him from the custody of the 1^st respondent he must be able to prove beyond para adventure that Timothy Muiga the alleged seller held a good title to the motor vehicle.
The respondents by way of the affidavit sworn by Chief Inspector Simalo Dorcas have informed this court that they have investigated the ownership of motor vehicle KCL 498P and established that the same was registered under the name Rahama Haj Osman Sheikh Said.
It follows therefore the person who held good title over the motor vehicle is the same Rahama Haj Osman Sheikh Said who is said to have in her custody a motor vehicle bearing the same registration number.
In the considered view of this court the motor vehicle held by the 1^st respondent cannot therefore be the motor vehicle registered by the 2^nd respondent as motor vehicle KCL 498P.
The affidavit of Chief Inspector Simalo has detailed the investigation conducted by the forensic motor vehicle examiner and based on the report by the forensic expert there is no doubt that the motor vehicle in issue cannot be motor vehicle KCL 498P. The Chief inspector has annexed to her affidavit a report of the scene of crimes section marked PKN 5 which states that the motor vehicle in issue was examined physically and checked chemically and was found to have been interfered with thus rendering it as suspect motor vehicle thus necessitating further investigations to be carried out with the 2^nd respondent.
Further, the chief inspector also provided a document marked PKN4 indicating that the motor vehicle KCL 498P was established to be that of Rahama Haj Osman Sheikh Said.
That being the situation it follows therefore that Timothy Muiga did not possess a legitimate title over motor vehicle KCL 498P and therefore could not pass good title to the applicant. See Niblett ltd vs. Confectioners’ Materials Co. Ltd {1921}3 KB 387 :- The claimant purchased 1,000 tins of condensed milk from the defendant. The tins were labelled 'Nissly'. Nestle told the claimant that if they attempted to sell these on, they would apply for an injunction to prevent the sale as the label was very similar to Nestle's labels for their condensed milk. The claimants agreed not to sell them and brought an action against the sellers. The Court held that the sellers did not have the right to sell the goods and therefore the buyers were entitled to repudiate the contract.
Similarly, whereas it may be true that the applicant bought a motor vehicle disguised as KCL 498P, no doubt that transaction was marred with fraud and material misrepresentation to the applicant. The applicants recourse therefore lies in a civil suit against Timothy Muiga to recover the money paid to him as a result of the fraudulent sale.
As to whether the police should be allowed to continue holding the motor vehicle seized from the yard bearing the registration number KCL 498P, this court has no hesitation in finding and holding that indeed the motor vehicle should not be released to the applicant in the circumstances.
It is important for the court to mention that, where seized property is established to be stolen or suspected to be stolen property, courts of law should never allow those that are found to be in possession of such property to regain control of the same and continue drawing benefit thereof since to do so would be to encourage crime in society thus defeating the efforts by law enforcement agencies in comparting crimes.
In this case this court is not in doubt that the motor vehicle held by the police is not motor vehicle KCL 498P since one Rahama Haj Osman Sheikh Said has that vehicle in her possession. The applicant must have been duped into purchasing a motor vehicle that bore a false number plate and which remains the subject of investigations to date.
The applicant in this application has posed the question, should investigators be allowed to investigate the matter indefinitely? The question is legitimate but unhelpful to the applicant because if he held good title to the vehicle this court would have been called upon to determine the issue of delay in arresting and charging the culpable persons or order the release of the motor vehicle in protection of the applicants right to property under Article 40 of the Constitution.
The matter has also brought to the fore the issue of the integrity of the data held by the National Transport Safety Authority. The respondents must address that issue in the course of investigations for it points to a very worrisome situation that it is possible for one’s vehicle to be transferred to a third party without their knowledge. That is a grave matter touching not only on the protection of the interests of motor vehicles owners but also the safety of persons driving motor vehicles on our roads. The respondents must therefore be allowed to exhaust all aspects of investigations into the registration of the suspect motor vehicle and the circumstances surrounding the issuance of a number plate identical to that held by the lawful owner of motor vehicle KCL 498P and bring all the persons responsible to justice.
It is the considered view of this court that to order the police and the Director of Public Prosecutions to hastily conclude the investigations and make a decision whether or not to prosecute the applicant or any other person would be against the express provisions of Articles 157(10) and 245 of the Constitution of Kenya. The two institutions must be allowed to discharge their respective mandates without interference.
However, considering the gravity of the matter the issue must be brought to the immediate personal attention of the Director of Public Prosecutions foe appropriate action taking into account the period that has lapsed since the seizure of the motor vehicle.
In the end, the applicant’s application dated 8^th March 2023 is hereby dismissed with no orders as to costs. A copy of the Ruling of this court to be transmitted to the Director of Public Prosecutions by the Deputy Registrar of this court for his perusal and necessary action.
It is so ordered.