Introduction
1. The Petition dated 16/2/2024 is supported by the affidavit of the 1st Petitioner, Peter Macharia Thiongo of even date.
2. The Petitioner challenges the seizure of the Petitioner’s motor vehicle registration number KCJ 267S and its subsequent detention at Ruaraka Police Station by the agents of the 1 st Respondent on 23/10/2023. The Petitioners aver that the 1 st Respondent’s action was carried out arbitrarily and without any valid notice, in fragrant disregard of Section 44 (1) of the Tax Procedures Act and in violation of the Petitioner’s constitutional rights under guaranteed under Articles 31 (b) and 40 (3) of the Constitution .
3. The Petitioner thus seeks the following reliefs against the Respondents:
a) A declaration that the 1st Petitioner's Constitutional rights of having his property arbitrary seized as guaranteed under Article 31(b) of the Constitution has been Violated and infringed by the 1st Respondent.
b) A declaration that the 1st Petitioners Constitution right to acquire and own property of any description and in any part of Kenya as guaranteed by 40 (3) of the Constitution has been infringed and or violated by the 1st Respondents.
c) A declaration that the seizure by the 1st Respondent of the Petitioners Motor Vehicle without his consent and without giving any notice to that effect is contrary to section 44 (1) of the Tax Procedures Act and the Constitution off Kenya 2010.
d) Reinstitution of the 1st Petitioners Motor Vehicle and prohibitory order to the 1st respondent from seizing and or detaining without following the due process of the law.
e) General damages and Compensation for illegal seizure and detention of the motor vehicle to a tune of Kshs. 5 million.
f) Cost and interests of this Petition.
Petitioner’s Case
4. The Petitioner deposed that he has been the registered owner of Motor vehicle Registration number KCF 267S, make Subaru, since the 6th of June 2023, having purchased it from the 2nd Petitioner. In support of this assertion, the Petitioner annexed a copy of the log-book and the sale agreement, marked as exhibits PM1 and PMT-2.
5. On 23rd October 2023 while using his said motor vehicle in Nairobi, it was seized and detained at the Ruaraka police station by the officers/agents of the 1st Respondent without any prior notices or explanation contrary to the provisions of Section 44 of the Tax Procedure Act and the right to acquire and own property as guaranteed under Article 40 (3) of the Constitution of Kenya.
6. Further, the 1st Petitioner contended that the 1st Respondent violated his rights under Article 31 (b) of the Constitution of Kenya in view of the arbitrary act of seizure and detention of his Motor vehicle.
7. As a result, the petitioner stated he has suffered and continues to suffer inconveniences and loss as he is forced to hire Ubers or use public transport because of the 1st Respondent’s action which, despite repeated demands for the release of the Motor Vehicle, the 1st Respondent has ignored, neglected and/or refused to release.
8. In the supplementary affidavit filed on 22/2/2024, the Petitioner urged this Court disregard the Respondent’s Replying affidavit on grounds that it had not been commissioned by an authorised person as required by the Oaths and Statutory Declarations Act, Order 19 of the Civil Procedure Rules. The Petitioner contended that the defect is fundamental hence not curable under Article 159 (2) (d) of the Constitution.
1st Respondent’s Case
9. The 1st Respondent filed its replying affidavit through Ibrahim Abdi Hassan sworn on 19th March, 2024 who stated he is an officer of the 1st Respondent based in the Investigations and Enforcement Department.
10. The 1st Respondent deponed that it is creature of the Statute, the Kenya Revenue Authority Act (KRA Act) which Section 5 (1), establishes it an agency of the Government for the collection and receipt of all revenue whereas Section 5(2) of KRA Act requires it to administer and enforce all provisions of the written laws set out in Part I & II of the First Schedule to the KRA Act for the purposes of assessing, collecting and accounting for all revenues in accordance with those laws.
11. It was deposed on behalf of the 1st Respondent that under Part I of the First Schedule to the KRA Act, the 1st Respondent is mandated to enforce the East African Community Customs Management Act, 2004 (“EACCMA, 2004”).
12. The deponent stated that 1st Respondent has for many years been experiencing problems in effectively assessing, collecting and accounting for all tax/revenues due to various acts, omissions and/or vices perpetrated by some traders perpetrated through among others dumping of transit goods in Kenya hence evading payment of import duties which would have been payable had they been procedurally imported or declared.
13. The 1 st Respondent swore that it was involved in a intergovernmental multi-agency taskforce comprising of Directorate of Criminal Investigation (DCI), National Intelligence Service (NIS) and National Transport and Safety Authority (NTSA) in an operation to impound civilian motor vehicles with security plates which was spearheaded by the National Transport and Safety Authority (NTSA) and that through this operation it was discovered that not only did the civilian's vehicles have security plates allocated to NIS but also taxes on the said civilian vehicles had not been paid as most of the vehicles had been cleared as transit goods meant for neighbouring countries.
14. It was deposed on behalf of the 1st Respondent that in the year 2023 the NTSA had flagged over fifty (50) civilian vehicles as having been assigned with security plates allocated to the (NIS) and in an operation that ensued, NTSA was able to impound nine (9) vehicles with the rest being at large. Motor vehicle registration KCF 267S registered under the 1st Petitioner's name on the 2nd October 2023 was among those impounded in the operation in which the 1st Petitioner was arrested and booked at the Ruaraka Police station where he recorded a statement . ( Annexure "IAH- 1").
15. The 1st Respondent stated that said motor vehicle was then delivered to the customs control of the 1st Respondent who issued to the Officer in Charge Ruaraka Police Station a notice of goods deposited in Customs Warehouse (F89 Form) No.088790 dated 23rd October 2023. The original copy was served on the 1st Petitioner by the 1st Respondent and the same was signed for by the 1st Petitioner. (Annexure “IAH- 2").
16. The 1st Respondent swore that it subsequently requested the Directorate of Criminal Investigation to conduct a physical verification of the vehicle which was done on the 25th October 2023 and it confirmed that the vehicle was among those which custom duty had not been paid (Annexure "IAH- 3"- copy of the Verification Report).
17. The 1st Respondent averred that the Investigations further established that the motor vehicle was imported vide Customs Transit Entry Number 2020MSA7567150 and Road Manifest Number T812 No. 2020MSA7567404 both lodged and registered on the 1st Respondent Simba system on 30th June 2020. The motor vehicle was in transit to South Sudan through Malaba frontier office and was imported by one Deng Garang Deng of Juba . ( Annexure "IAH- 4" and "IAH-5" copy of the Customs Transit- Entry Number and Road Manifest Number respectively)
18. The 1st Respondent stated that upon discovering that the motor vehicle was diverted into Kenyan market, a search of the registration number was carried out in the Transport Integrated Management System (TIMS) at NTSA which confirmed that the current owner is the 1st Petitioner. ( per exhibit "IAH- 6" -copy of the TIMS Report).
19. As a result, the 1st Petitioner was interrogated and he stated he had bought the said vehicle from the 2nd Petitioner who was also also questioned as to the ownership of the vehicle and recorded a statement with the KRA Investigation officers on the 1st November 2023 indicating that he had bought the same from one Eric Ntaga Mukunya and later sold it to the 1st Petitioner. (per exhibit "IAH- 7" is a copy of the 2nd Petitioners Statement)
20. The 1st Respondent asserted that Section 44 of the Tax Procedures Act authorizes the 1st Respondent to seize goods, and further that constitutionality of the said section that confers the 1st Respondent with the powers of seizure has not been challenged neither has the same been declared unconstitutional.
21. Further, the 1st Respondent explained that the Constitutional rights available to the 1st and 2nd Petitioner under Article 31 (b) and 40 (3) of the Constitution are not absolute and the same may be limited by an Act of Parliament and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors.
22. The 1st Respondent affirmed that it duly issued to the 1st Petitioner a notice giving reasons why the motor vehicle was impounded and why the same is still being held.
23. The 1st Respondent contended that the seizure and detention of the motor vehicle was carried out lawfully pursuant to Section 213 of EACCMA, 2004 gives the 1st Respondent power to seize and detain any aircraft, vessel, vehicle, goods, animal or other thing liable to forfeiture under the Act where there is reasonable ground to believe it is liable to forfeiture.
24. Furthermore, the 1st Respondent contended that Section 214 of EACCMA, 2004 has an elaborate procedure on how to deal with anything that has been seized under the EACCMA, 2004 as Section 214 (4)(a) provides that where such thing has been seized, the owner may, within one month of the date of the seizure claim such thing by notice in writing to the Commissioner yet the Petitioner did not present any demand or notice to the 1st Respondent concerning the release of motor vehicle KCF 267S. As such, the 1st Respondent contended that the Petition is founded on a fundamental misapprehension of the jurisdiction of this Honorable Court.
25. Further that the Petition fails to meet the threshold for constitutional petition as particulars of the manner of alleged infringement on the Petitioners constitutional rights are not supplied and that the Petition does not raise any constitutional issues.
26. The 1st Respondent filed a 3 a further replying affidavit through Ibrahim Abdi Hassan which confirmed the subject motor vehicle was knowingly diverted into the local market hence customed duty was evaded and remains unpaid and its registration had been effected manually in NTSA TIMS as there was no data showing its transfer from ICMS to TIMS.
27. He stated that based on the market value of the motor vehicle KCF 267S unpaid taxes stand at Kshs.466,657/-. He also confirmed that from the findings of the investigation, the 1st and 2nd Petitioners were innocent purchasers of an uncustomed motor vehicle KCF 267S.
28. The 1st Respondent stated that prosecution of the persons involved in the diversion, sale and irregular registration of the motor vehicle has been recommended as evidenced in the exhibit marked "IAH- 2” ( copy of the letter addressed to the Director of Public Prosecution dated the 2nd December 2024 ).
29. He stated the 1st Respondent is ready to release the said motor vehicle KCF 267S subject to the approval by the relevant authorities and payment of unpaid duties and taxes.
2nd Respondent’s Case
30. In response to the Petition, the 1st Respondent filed grounds of opposition dated 22/3/2024 in which it opposed the Petition on the following grounds:
1. THAT this Petition does not meet the test of a constitutional petition laid down in the case of Anarita Karimi Njeru v Republic (No.1) [1979] KLR 154 and emphasized in the case of Mumo Matemu v Trusted Society of Human Rights Alliance [2014] eKLR , and on that ground alone, we urge that this petition should fail. That apart from citing omnibus provisions of the Constitution, the petition has provided neither particulars of the alleged complaints, nor the manner of alleged infringements.
2. THAT the Petitioner is unable to sufficiently prove the nature and manner in which the 2nd Respondent have allegedly violated his rights or any of the provisions of the Constitution.
3. THAT the Petition and the Supporting Affidavit have not specified any wrongdoing on the part of the 2nd Respondent or at all and only mentions the Hon. Attorney General in the description of parties at paragraph 3 of the Petition.
4. THAT this Petition is an abuse of the Court Process and ought to be dismissed as against the 2nd and 3rd Respondents.
Petitioners’ submissions
31. J & J Advocates filed submissions written submissions dated 26/3/2024 on behalf of the both Petitioners.
32. Counsel submitted that the 1st Respondent filed an incurable and defective Replying Affidavit which was not commissioned and thus not in compliance with the provisions of the Oaths and Statutory Declarations Act hence urged this Honourable Court to disregard said replying affidavit and strike it out, proceed and allow the Petitioner's Petition as prayed with an award of costs and interest to the petitioner.
33. Counsel reiterated that the 1st petitioner was using his motor vehicle within Nairobi (on 23rd October 2023) when it was seized and detained at Ruaraka police station by the 1st Respondent without any requisite notice nor a valid reason hence the action was a violation of the 1st Petitioner’s Constitutional Right as enshrined in Article 40 (3) of the Constitution.
34. That since October 2023, the 1st Respondent' agents, employees and or servants have not given any good reason for impounding the 1s1 petitioner's motor vehicle nor did they charge the 1st Petitioner with any offence in relation to the motor-vehicle.
35. Counsel argued that the 1st Petitioner does not have control on issuance of number plates in regards to any motor vehicle hence any allegation that the 1st Petitioner's motor vehicle had security plates allocated to it, (NIS), is not his fault nor should his vehicle be impounded because he conducted his due diligence and the Motor Vehicle was clean as per NTSA records.
36. According to Counsel, 1st Petitioner disputes that he owes any tax obligation to occasion the seizure of his motor vehicle as and urged this Honourable Court to find that his dignity was violated plus the loss of his motor vehicle and prayed for an award of Kshs 5million as he is forced to always book Ubers for his mobility.
37. Counsel identified and submitted on four issues, namely
(i) Whether this Court is well seized of this matter?
(ii) Whether the seizure of the 1st Petitioner Motor Vehicle contravened his Constitutional Rights?
(iii) Whether the Court should strike out the 1st Respondent Replying Affidavit and accompanying documents dated 19th March 2024?
(iv) Whether the Petitioner is entitled to damages prayed?
(v) Who should bear the cost of this Petition?
38. As to the issue of whether this court is well seized of this matter ; Counsel submitted this Court has jurisdiction under Article 165 (3) b of the Constitution to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened". Further, that Article 258 (1) Every person has the Right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention. The Petitioner further contends that he fully complied with all tax obligation as he had conducted his due diligence before purchasing the motor vehicle. He unequivocally states that this dispute or seizure of his motor vehicle has nothing to do with tax obligation by the Respondent and that the 1st Respondent has failed to demonstrate that the Petitioner had any ta obligation in respect of the motor vehicle he owned. Further the 1st Petitioner clearly states that no valid reasons nor notice has ever been issued to him to date. Counsel thus argued that this Petition raises purely constitutional issues hence this Court is well placed to entertain and determine the Petition as the Petitioners do not have any other venue to air their grievances.
39. The Petitioners placed reliance on the case of Samura Engineering Limited & 10 Others vs. Kenya Revenue Authority [2012] eKLR where it was held
" The duty of the court is to determine, on the facts as pleaded and presented, whether or not there has been a violation of the petitioner's rights. It is not to decide whether, in fact, there is another suitable remedy or whether the matter could have been resolved in another forum or whether the matter is merely a civil matter.”
40. On the question of whether the seizure of the 1st Petitioner Motor Vehicle contravenes his Constitutional Rights; Counsel for the Petitioners submitted that the seizure of the 1st Petitioner's Motor Vehicle was done without any Notices to the 1s Petitioner, an action that is arbitrary and unconstitutional. Counsel cited and relied on Articles 31 (b) of the Constitution " Every person has the right to privacy which includes the right to have -b) their possessions seized and Article 40 (3) The state shall not deprive a person of property of any description, or of any interest in, or right over, property of any description . He argued that to the extent that sections 44(1) & (2) and 60(1)-(3) of the Tax Procedures Act, 2015 empowers the 1st Respondent to unilaterally and arbitrarily exercise the power search, seizure and forfeiture of goods, the same are unconstitutional considering that Article 31(b) of the Constitution is unequivocal both in wording and spirit hence this Court should not depart from the same because any provision which allows the 1st Respondent to unilaterally and arbitrary seize the tax payers possessions demeans the dignity and the spirit of the Petitioner's Right and freedom as enshrined in the Constitution.
41. According to Counsel, a statute such as the provisions of the Tax Procedure Act cannot retract from clear Constitutional stipulation Right ad was affirmed by the Court of Appeal of Tanzania in the celebrated case of Ndyanabo vs. Attorney General [2001] EA 495 which while restating the law in the English case of Pearlberg vs. Varty [1972] 1 WLR 534 held that:
"Until the contrary is proved, a legislation is presumed to be constitutional. It is a sound principle of constitutional construction that, if possible, a legislation should receive such a construction as will make it operative and not inoperative"
42. Counsel argued that any statute that limits or intends to limit Fundamental Rights and Freedom is null and Void citing the decision of the Supreme Court in The Matter of the Principle of Gender Representation in the National Assembly and the Senate, SC Advisory Opinion No. 2 of 2012 where it was held that:
"A consideration of different constitutions shows that they are often written in different styles and modes of expression. Some Constitutions are highly legalistic and minimalist, as regards express safeguards and public commitment. But the Kenyan Constitution fuses this approach with declarations of general principles and statements of policy. Such principles or policy declarations signify a value system, an ethos, a culture, or a political environment within which the citizens aspire to conduct their affairs and interact among themselves and with their public Scanned with OKEN Scanner a institutions. Where a Constitution takes such a fused form in terms, we believe Court of law ought to keep an open mind while interpreting its provisions. In such circumstances, we are inclined in favour of an interpretation that contributes to the development of both the prescribed norm and the declared principle or policy: and care should be taken not to substitute one for the other."
43. Counsel further relied on Article 20(2)(3) and (4) of the Constitution which provides as follows:
(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.
44. Counsel placed further reliance on the cases of The Senate & Another vs. Hon. AttorneyGeneral & Another & 3 Others Advisory Opinion Reference No. 2 of 2013 [2013] eKLR and Njoya & 6 Others vs. Attorney General & Others (No. 2) [2004] 1 KLR 261; [2004] 1 EA 194: [2008] 2 KLR , to buttress the submission that the Constitution should be given a broad, liberal and purposive interpretation to give effect to its fundamental values and principles.
45. Submitting on Section 44(1) & (2) of the Tax Procedures Act, Counsel cited it reproduced it as follows:
(1) This section shall apply to-
(a) any goods in respect of which the Commissioner or authorized officer reasonably believes that the value added tax or excise duty payable in respect of the supply, removal, or import of the goods has not been or will not be paid; or
(b) goods for which excise duty has not been paid, unless the owner of the goods has made arrangements that have satisfied the Commissioner for the payment of the excise duty, which may include the giving of a security:
(c) excisable goods subject to excise control that have been moved, altered, or in any way interfered with, except with the permission of the Commissioner; to
(d) excisable goods in respect of which, any person, in any matter relating excise, makes or produces a declaration, certificate, application or other document, answer, statement or representation, that is false or incorrect in any particular; or
(e) excisable goods in respect of which a refund of excise duty has been unlawfully obtained.
(2) The Commissioner or an authorized officer may seize any goods to which this section applies
46. According to the Petitioner, these provisions are inconsistent with and violate Article 31 (b) of the Constitution which provides as follows:
Every person has the right to privacy, which includes the right not to have- (a)...
31 (b) their possessions seized;
47. Counsel argued that any limitation is required to comply with Article 24 of the Constitution which provides as follows:
(1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including-
(a) the nature of the right or fundamental freedom;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and
(e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.
(2) Despite clause (1), a provision in legislation limiting a right or fundamental freedom-
(a) in the case of a provision enacted or amended on or after the effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation:
(b) shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and
(c) shall not limit the right or fundamental freedom so far as to derogate from its core or essential content.
(3) The State or a person seeking to justify a particular limitation shall demonstrate to the court, tribunal or other authority that the requirements of this Article have been satisfied.
48. Counsel for the Petitioners submitted that the 1st Respondent has not even attempted to show that the requirements of Article 24 aforesaid were satisfied in the enactment of the said sections. That the Respondent was required to satisfy this Court that the said provisions specifically express the intention to limit the Article 31(b) right or fundamental freedom. Counsel contended that the same do not indicate the nature and extent of the limitation, hence pursuant to Article 24 of the Constitution, such provisions are invalid and cannot have the effect of limiting the rights conferred by Article 31 (b) of the Constitution.
49. Urging for the declaration of unconstitutionality of sections 44(1) and (2) and 60(1) and (3) of the Tax Procedures Act, 2015, relied on the case of Kennedy vs. Ireland [1987] IR 587 cited in Coalition for Reform and Democracy (CORD) & 2 Others vs. Republic & 10 Others [205] KLR where it was held that:
"The dignity and freedom of an individual in a democratic society cannot be ensured if his communication of a private nature, be they written or telephonic, are deliberately, consciously and unjustifiably intruded upon and interfered with."
50. As to whether the Court should strike out the 1st Respondent Replying Affidavit and accompanying documents dated 19th March 2024; Counsel submitted that the 1st Respondent’s Replying Affidavit was not been commissioned and argued that it should be struck out as the defect is incurable. Reliance was placed on the case of Pius Njogu Kathuri v Joseph Kiragu Muthura & 3 others [2018] eKLR and Hosea Mundui Kiplagał -V- Sammy Komen Mwaita & 2 Others (2013) eKLR .
51. As to whether the Petitioner is entitled to damages ; Counsel submitted that since the 1st Petitioner's Motor vehicle KCF 267S was arbitrarily seized and detained, it was almost an year of being deprived of its use. He argued that the Petitioner was entitled to compensation and cited the case of Rawal, J (as she then was) in Otieno Mak'onyango vs. Attorney General & Another [2012] eKLR the Court held that it was bound to award be fair and reasonable in awarding damages in view of the unique circumstances of that case. 196. Counsel submitted that the Petitioner seeks an award of Kshs. 5,000,000 for violation of his rights and being a senior citizen who runs business all over the Country has been forced to hire and or use Uber for him to conduct business.
1 st Respondent’s written submissions
52. The 1st Respondent filed its written submissions through its Advocate Andambi Chabala . Counsel adopted the facts in the replying affidavit of the 1st Respondent sworn by Ibrahim Abdi Hassan.
53. On behalf of the 1st Respondent, Counsel identified and submitted on the following issues:
a) Whether the Court should strike out the 1st Respondent Replying affidavit and accompanying documents dated 19th March 2024?
b) Whether the 1st Respondent action of seizing and impounding the 131 Petitioners motor vehicle KCF 267S pending confirmation of payment of customs duty and investigation infringes on the Petitioners Constitutional rights secured under Articles 31 and 40 of the Constitution?
c) Whether the seizure and continued detention of motor vehicle KCF 267S was lawfully done?
d) Whether the jurisdiction of this Court has been properly invoked?
e) Whether the Petitioners are entitled to damages and orders sought?
54. On the question of whether the Court should strike out the 1st Respondent Replying affidavit and accompanying documents dated 19th March 2024; Counsel submitted at the onset that the Replying affidavit sworn on the 19th March 2024 by Ibrahim Abdi Hassan was properly commissioned except that the one served on the Petitioner was faint. He explained that the defect arose purely from oversight of the 1st Respondent’s registry officer and having the documents scanned in black and white format. Counsel thus urged the Court not to strike the Replying affidavit and the annexures thereof submitting that the defect was a mere technicality which by dint of Article 159 (2) (d) of the Constitution should not be allowed to defeat the ends of substantive justice for the parties.
55. The 1st Respondent further cited Article 22 (3)(b) which provides that; The Chief Justice shall make rules providing for the court proceedings referred to in this Article, which shall satisfy the criteria that-
(b) formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of informal documentation;
56. The 1st Respondent argued that since the suit raises constitutional issues, the justice of the case would best be served if the parties are heard on merit. Counsel submitted that striking out the 1st Respondent replying affidavit and annexures would deny the 1st Respondent an opportunity to defend the suit in contravention of Article 159(2)(d) of the Constitution.
57. On the question of whether the 1st Respondent's action of impounding and detaining the 1st Petitioners motor vehicle KCF 267S pending confirmation of payment of customs duty and investigation infringes on the Petitioners Constitutional rights guaranteed under Articles 31 and 40 of the Constitution; The 1st Respondent submitted that the seizure and detention of the motor vehicle KCF 267S a
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1. The Petition dated 16/2/2024 is supported by the affidavit of the 1st Petitioner, Peter Macharia Thiongo of even date.
2. The Petitioner challenges the seizure of the Petitioner’s motor vehicle registration number KCJ 267S and its subsequent detention at Ruaraka Police Station by the agents of the 1 st Respondent on 23/10/2023. The Petitioners aver that the 1 st Respondent’s action was carried out arbitrarily and without any valid notice, in fragrant disregard of Section 44 (1) of the Tax Procedures Act and in violation of the Petitioner’s constitutional rights under guaranteed under Articles 31 (b) and 40 (3) of the Constitution .
3. The Petitioner thus seeks the following reliefs against the Respondents:
a) A declaration that the 1st Petitioner's Constitutional rights of having his property arbitrary seized as guaranteed under Article 31(b) of the Constitution has been Violated and infringed by the 1st Respondent.
b) A declaration that the 1st Petitioners Constitution right to acquire and own property of any description and in any part of Kenya as guaranteed by 40 (3) of the Constitution has been infringed and or violated by the 1st Respondents.
c) A declaration that the seizure by the 1st Respondent of the Petitioners Motor Vehicle without his consent and without giving any notice to that effect is contrary to section 44 (1) of the Tax Procedures Act and the Constitution off Kenya 2010.
d) Reinstitution of the 1st Petitioners Motor Vehicle and prohibitory order to the 1st respondent from seizing and or detaining without following the due process of the law.
e) General damages and Compensation for illegal seizure and detention of the motor vehicle to a tune of Kshs. 5 million.
f) Cost and interests of this Petition.
Petitioner’s Case
4. The Petitioner deposed that he has been the registered owner of Motor vehicle Registration number KCF 267S, make Subaru, since the 6th of June 2023, having purchased it from the 2nd Petitioner. In support of this assertion, the Petitioner annexed a copy of the log-book and the sale agreement, marked as exhibits PM1 and PMT-2.
5. On 23rd October 2023 while using his said motor vehicle in Nairobi, it was seized and detained at the Ruaraka police station by the officers/agents of the 1st Respondent without any prior notices or explanation contrary to the provisions of Section 44 of the Tax Procedure Act and the right to acquire and own property as guaranteed under Article 40 (3) of the Constitution of Kenya.
6. Further, the 1st Petitioner contended that the 1st Respondent violated his rights under Article 31 (b) of the Constitution of Kenya in view of the arbitrary act of seizure and detention of his Motor vehicle.
7. As a result, the petitioner stated he has suffered and continues to suffer inconveniences and loss as he is forced to hire Ubers or use public transport because of the 1st Respondent’s action which, despite repeated demands for the release of the Motor Vehicle, the 1st Respondent has ignored, neglected and/or refused to release.
8. In the supplementary affidavit filed on 22/2/2024, the Petitioner urged this Court disregard the Respondent’s Replying affidavit on grounds that it had not been commissioned by an authorised person as required by the Oaths and Statutory Declarations Act, Order 19 of the Civil Procedure Rules. The Petitioner contended that the defect is fundamental hence not curable under Article 159 (2) (d) of the Constitution.
1st Respondent’s Case
9. The 1st Respondent filed its replying affidavit through Ibrahim Abdi Hassan sworn on 19th March, 2024 who stated he is an officer of the 1st Respondent based in the Investigations and Enforcement Department.
10. The 1st Respondent deponed that it is creature of the Statute, the Kenya Revenue Authority Act (KRA Act) which Section 5 (1), establishes it an agency of the Government for the collection and receipt of all revenue whereas Section 5(2) of KRA Act requires it to administer and enforce all provisions of the written laws set out in Part I & II of the First Schedule to the KRA Act for the purposes of assessing, collecting and accounting for all revenues in accordance with those laws.
11. It was deposed on behalf of the 1st Respondent that under Part I of the First Schedule to the KRA Act, the 1st Respondent is mandated to enforce the East African Community Customs Management Act, 2004 (“EACCMA, 2004”).
12. The deponent stated that 1st Respondent has for many years been experiencing problems in effectively assessing, collecting and accounting for all tax/revenues due to various acts, omissions and/or vices perpetrated by some traders perpetrated through among others dumping of transit goods in Kenya hence evading payment of import duties which would have been payable had they been procedurally imported or declared.
13. The 1 st Respondent swore that it was involved in a intergovernmental multi-agency taskforce comprising of Directorate of Criminal Investigation (DCI), National Intelligence Service (NIS) and National Transport and Safety Authority (NTSA) in an operation to impound civilian motor vehicles with security plates which was spearheaded by the National Transport and Safety Authority (NTSA) and that through this operation it was discovered that not only did the civilian's vehicles have security plates allocated to NIS but also taxes on the said civilian vehicles had not been paid as most of the vehicles had been cleared as transit goods meant for neighbouring countries.
14. It was deposed on behalf of the 1st Respondent that in the year 2023 the NTSA had flagged over fifty (50) civilian vehicles as having been assigned with security plates allocated to the (NIS) and in an operation that ensued, NTSA was able to impound nine (9) vehicles with the rest being at large. Motor vehicle registration KCF 267S registered under the 1st Petitioner's name on the 2nd October 2023 was among those impounded in the operation in which the 1st Petitioner was arrested and booked at the Ruaraka Police station where he recorded a statement . ( Annexure "IAH- 1").
15. The 1st Respondent stated that said motor vehicle was then delivered to the customs control of the 1st Respondent who issued to the Officer in Charge Ruaraka Police Station a notice of goods deposited in Customs Warehouse (F89 Form) No.088790 dated 23rd October 2023. The original copy was served on the 1st Petitioner by the 1st Respondent and the same was signed for by the 1st Petitioner. (Annexure “IAH- 2").
16. The 1st Respondent swore that it subsequently requested the Directorate of Criminal Investigation to conduct a physical verification of the vehicle which was done on the 25th October 2023 and it confirmed that the vehicle was among those which custom duty had not been paid (Annexure "IAH- 3"- copy of the Verification Report).
17. The 1st Respondent averred that the Investigations further established that the motor vehicle was imported vide Customs Transit Entry Number 2020MSA7567150 and Road Manifest Number T812 No. 2020MSA7567404 both lodged and registered on the 1st Respondent Simba system on 30th June 2020. The motor vehicle was in transit to South Sudan through Malaba frontier office and was imported by one Deng Garang Deng of Juba . ( Annexure "IAH- 4" and "IAH-5" copy of the Customs Transit- Entry Number and Road Manifest Number respectively)
18. The 1st Respondent stated that upon discovering that the motor vehicle was diverted into Kenyan market, a search of the registration number was carried out in the Transport Integrated Management System (TIMS) at NTSA which confirmed that the current owner is the 1st Petitioner. ( per exhibit "IAH- 6" -copy of the TIMS Report).
19. As a result, the 1st Petitioner was interrogated and he stated he had bought the said vehicle from the 2nd Petitioner who was also also questioned as to the ownership of the vehicle and recorded a statement with the KRA Investigation officers on the 1st November 2023 indicating that he had bought the same from one Eric Ntaga Mukunya and later sold it to the 1st Petitioner. (per exhibit "IAH- 7" is a copy of the 2nd Petitioners Statement)
20. The 1st Respondent asserted that Section 44 of the Tax Procedures Act authorizes the 1st Respondent to seize goods, and further that constitutionality of the said section that confers the 1st Respondent with the powers of seizure has not been challenged neither has the same been declared unconstitutional.
21. Further, the 1st Respondent explained that the Constitutional rights available to the 1st and 2nd Petitioner under Article 31 (b) and 40 (3) of the Constitution are not absolute and the same may be limited by an Act of Parliament and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors.
22. The 1st Respondent affirmed that it duly issued to the 1st Petitioner a notice giving reasons why the motor vehicle was impounded and why the same is still being held.
23. The 1st Respondent contended that the seizure and detention of the motor vehicle was carried out lawfully pursuant to Section 213 of EACCMA, 2004 gives the 1st Respondent power to seize and detain any aircraft, vessel, vehicle, goods, animal or other thing liable to forfeiture under the Act where there is reasonable ground to believe it is liable to forfeiture.
24. Furthermore, the 1st Respondent contended that Section 214 of EACCMA, 2004 has an elaborate procedure on how to deal with anything that has been seized under the EACCMA, 2004 as Section 214 (4)(a) provides that where such thing has been seized, the owner may, within one month of the date of the seizure claim such thing by notice in writing to the Commissioner yet the Petitioner did not present any demand or notice to the 1st Respondent concerning the release of motor vehicle KCF 267S. As such, the 1st Respondent contended that the Petition is founded on a fundamental misapprehension of the jurisdiction of this Honorable Court.
25. Further that the Petition fails to meet the threshold for constitutional petition as particulars of the manner of alleged infringement on the Petitioners constitutional rights are not supplied and that the Petition does not raise any constitutional issues.
26. The 1st Respondent filed a 3 a further replying affidavit through Ibrahim Abdi Hassan which confirmed the subject motor vehicle was knowingly diverted into the local market hence customed duty was evaded and remains unpaid and its registration had been effected manually in NTSA TIMS as there was no data showing its transfer from ICMS to TIMS.
27. He stated that based on the market value of the motor vehicle KCF 267S unpaid taxes stand at Kshs.466,657/-. He also confirmed that from the findings of the investigation, the 1st and 2nd Petitioners were innocent purchasers of an uncustomed motor vehicle KCF 267S.
28. The 1st Respondent stated that prosecution of the persons involved in the diversion, sale and irregular registration of the motor vehicle has been recommended as evidenced in the exhibit marked "IAH- 2” ( copy of the letter addressed to the Director of Public Prosecution dated the 2nd December 2024 ).
29. He stated the 1st Respondent is ready to release the said motor vehicle KCF 267S subject to the approval by the relevant authorities and payment of unpaid duties and taxes.
2nd Respondent’s Case
30. In response to the Petition, the 1st Respondent filed grounds of opposition dated 22/3/2024 in which it opposed the Petition on the following grounds:
1. THAT this Petition does not meet the test of a constitutional petition laid down in the case of Anarita Karimi Njeru v Republic (No.1) [1979] KLR 154 and emphasized in the case of Mumo Matemu v Trusted Society of Human Rights Alliance [2014] eKLR , and on that ground alone, we urge that this petition should fail. That apart from citing omnibus provisions of the Constitution, the petition has provided neither particulars of the alleged complaints, nor the manner of alleged infringements.
2. THAT the Petitioner is unable to sufficiently prove the nature and manner in which the 2nd Respondent have allegedly violated his rights or any of the provisions of the Constitution.
3. THAT the Petition and the Supporting Affidavit have not specified any wrongdoing on the part of the 2nd Respondent or at all and only mentions the Hon. Attorney General in the description of parties at paragraph 3 of the Petition.
4. THAT this Petition is an abuse of the Court Process and ought to be dismissed as against the 2nd and 3rd Respondents.
Petitioners’ submissions
31. J & J Advocates filed submissions written submissions dated 26/3/2024 on behalf of the both Petitioners.
32. Counsel submitted that the 1st Respondent filed an incurable and defective Replying Affidavit which was not commissioned and thus not in compliance with the provisions of the Oaths and Statutory Declarations Act hence urged this Honourable Court to disregard said replying affidavit and strike it out, proceed and allow the Petitioner's Petition as prayed with an award of costs and interest to the petitioner.
33. Counsel reiterated that the 1st petitioner was using his motor vehicle within Nairobi (on 23rd October 2023) when it was seized and detained at Ruaraka police station by the 1st Respondent without any requisite notice nor a valid reason hence the action was a violation of the 1st Petitioner’s Constitutional Right as enshrined in Article 40 (3) of the Constitution.
34. That since October 2023, the 1st Respondent' agents, employees and or servants have not given any good reason for impounding the 1s1 petitioner's motor vehicle nor did they charge the 1st Petitioner with any offence in relation to the motor-vehicle.
35. Counsel argued that the 1st Petitioner does not have control on issuance of number plates in regards to any motor vehicle hence any allegation that the 1st Petitioner's motor vehicle had security plates allocated to it, (NIS), is not his fault nor should his vehicle be impounded because he conducted his due diligence and the Motor Vehicle was clean as per NTSA records.
36. According to Counsel, 1st Petitioner disputes that he owes any tax obligation to occasion the seizure of his motor vehicle as and urged this Honourable Court to find that his dignity was violated plus the loss of his motor vehicle and prayed for an award of Kshs 5million as he is forced to always book Ubers for his mobility.
37. Counsel identified and submitted on four issues, namely
(i) Whether this Court is well seized of this matter?
(ii) Whether the seizure of the 1st Petitioner Motor Vehicle contravened his Constitutional Rights?
(iii) Whether the Court should strike out the 1st Respondent Replying Affidavit and accompanying documents dated 19th March 2024?
(iv) Whether the Petitioner is entitled to damages prayed?
(v) Who should bear the cost of this Petition?
38. As to the issue of whether this court is well seized of this matter ; Counsel submitted this Court has jurisdiction under Article 165 (3) b of the Constitution to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened". Further, that Article 258 (1) Every person has the Right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention. The Petitioner further contends that he fully complied with all tax obligation as he had conducted his due diligence before purchasing the motor vehicle. He unequivocally states that this dispute or seizure of his motor vehicle has nothing to do with tax obligation by the Respondent and that the 1st Respondent has failed to demonstrate that the Petitioner had any ta obligation in respect of the motor vehicle he owned. Further the 1st Petitioner clearly states that no valid reasons nor notice has ever been issued to him to date. Counsel thus argued that this Petition raises purely constitutional issues hence this Court is well placed to entertain and determine the Petition as the Petitioners do not have any other venue to air their grievances.
39. The Petitioners placed reliance on the case of Samura Engineering Limited & 10 Others vs. Kenya Revenue Authority [2012] eKLR where it was held
" The duty of the court is to determine, on the facts as pleaded and presented, whether or not there has been a violation of the petitioner's rights. It is not to decide whether, in fact, there is another suitable remedy or whether the matter could have been resolved in another forum or whether the matter is merely a civil matter.”
40. On the question of whether the seizure of the 1st Petitioner Motor Vehicle contravenes his Constitutional Rights; Counsel for the Petitioners submitted that the seizure of the 1st Petitioner's Motor Vehicle was done without any Notices to the 1s Petitioner, an action that is arbitrary and unconstitutional. Counsel cited and relied on Articles 31 (b) of the Constitution " Every person has the right to privacy which includes the right to have -b) their possessions seized and Article 40 (3) The state shall not deprive a person of property of any description, or of any interest in, or right over, property of any description . He argued that to the extent that sections 44(1) & (2) and 60(1)-(3) of the Tax Procedures Act, 2015 empowers the 1st Respondent to unilaterally and arbitrarily exercise the power search, seizure and forfeiture of goods, the same are unconstitutional considering that Article 31(b) of the Constitution is unequivocal both in wording and spirit hence this Court should not depart from the same because any provision which allows the 1st Respondent to unilaterally and arbitrary seize the tax payers possessions demeans the dignity and the spirit of the Petitioner's Right and freedom as enshrined in the Constitution.
41. According to Counsel, a statute such as the provisions of the Tax Procedure Act cannot retract from clear Constitutional stipulation Right ad was affirmed by the Court of Appeal of Tanzania in the celebrated case of Ndyanabo vs. Attorney General [2001] EA 495 which while restating the law in the English case of Pearlberg vs. Varty [1972] 1 WLR 534 held that:
"Until the contrary is proved, a legislation is presumed to be constitutional. It is a sound principle of constitutional construction that, if possible, a legislation should receive such a construction as will make it operative and not inoperative"
42. Counsel argued that any statute that limits or intends to limit Fundamental Rights and Freedom is null and Void citing the decision of the Supreme Court in The Matter of the Principle of Gender Representation in the National Assembly and the Senate, SC Advisory Opinion No. 2 of 2012 where it was held that:
"A consideration of different constitutions shows that they are often written in different styles and modes of expression. Some Constitutions are highly legalistic and minimalist, as regards express safeguards and public commitment. But the Kenyan Constitution fuses this approach with declarations of general principles and statements of policy. Such principles or policy declarations signify a value system, an ethos, a culture, or a political environment within which the citizens aspire to conduct their affairs and interact among themselves and with their public Scanned with OKEN Scanner a institutions. Where a Constitution takes such a fused form in terms, we believe Court of law ought to keep an open mind while interpreting its provisions. In such circumstances, we are inclined in favour of an interpretation that contributes to the development of both the prescribed norm and the declared principle or policy: and care should be taken not to substitute one for the other."
43. Counsel further relied on Article 20(2)(3) and (4) of the Constitution which provides as follows:
(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.
44. Counsel placed further reliance on the cases of The Senate & Another vs. Hon. AttorneyGeneral & Another & 3 Others Advisory Opinion Reference No. 2 of 2013 [2013] eKLR and Njoya & 6 Others vs. Attorney General & Others (No. 2) [2004] 1 KLR 261; [2004] 1 EA 194: [2008] 2 KLR , to buttress the submission that the Constitution should be given a broad, liberal and purposive interpretation to give effect to its fundamental values and principles.
45. Submitting on Section 44(1) & (2) of the Tax Procedures Act, Counsel cited it reproduced it as follows:
(1) This section shall apply to-
(a) any goods in respect of which the Commissioner or authorized officer reasonably believes that the value added tax or excise duty payable in respect of the supply, removal, or import of the goods has not been or will not be paid; or
(b) goods for which excise duty has not been paid, unless the owner of the goods has made arrangements that have satisfied the Commissioner for the payment of the excise duty, which may include the giving of a security:
(c) excisable goods subject to excise control that have been moved, altered, or in any way interfered with, except with the permission of the Commissioner; to
(d) excisable goods in respect of which, any person, in any matter relating excise, makes or produces a declaration, certificate, application or other document, answer, statement or representation, that is false or incorrect in any particular; or
(e) excisable goods in respect of which a refund of excise duty has been unlawfully obtained.
(2) The Commissioner or an authorized officer may seize any goods to which this section applies
46. According to the Petitioner, these provisions are inconsistent with and violate Article 31 (b) of the Constitution which provides as follows:
Every person has the right to privacy, which includes the right not to have- (a)...
31 (b) their possessions seized;
47. Counsel argued that any limitation is required to comply with Article 24 of the Constitution which provides as follows:
(1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including-
(a) the nature of the right or fundamental freedom;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and
(e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.
(2) Despite clause (1), a provision in legislation limiting a right or fundamental freedom-
(a) in the case of a provision enacted or amended on or after the effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation:
(b) shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and
(c) shall not limit the right or fundamental freedom so far as to derogate from its core or essential content.
(3) The State or a person seeking to justify a particular limitation shall demonstrate to the court, tribunal or other authority that the requirements of this Article have been satisfied.
48. Counsel for the Petitioners submitted that the 1st Respondent has not even attempted to show that the requirements of Article 24 aforesaid were satisfied in the enactment of the said sections. That the Respondent was required to satisfy this Court that the said provisions specifically express the intention to limit the Article 31(b) right or fundamental freedom. Counsel contended that the same do not indicate the nature and extent of the limitation, hence pursuant to Article 24 of the Constitution, such provisions are invalid and cannot have the effect of limiting the rights conferred by Article 31 (b) of the Constitution.
49. Urging for the declaration of unconstitutionality of sections 44(1) and (2) and 60(1) and (3) of the Tax Procedures Act, 2015, relied on the case of Kennedy vs. Ireland [1987] IR 587 cited in Coalition for Reform and Democracy (CORD) & 2 Others vs. Republic & 10 Others [205] KLR where it was held that:
"The dignity and freedom of an individual in a democratic society cannot be ensured if his communication of a private nature, be they written or telephonic, are deliberately, consciously and unjustifiably intruded upon and interfered with."
50. As to whether the Court should strike out the 1st Respondent Replying Affidavit and accompanying documents dated 19th March 2024; Counsel submitted that the 1st Respondent’s Replying Affidavit was not been commissioned and argued that it should be struck out as the defect is incurable. Reliance was placed on the case of Pius Njogu Kathuri v Joseph Kiragu Muthura & 3 others [2018] eKLR and Hosea Mundui Kiplagał -V- Sammy Komen Mwaita & 2 Others (2013) eKLR .
51. As to whether the Petitioner is entitled to damages ; Counsel submitted that since the 1st Petitioner's Motor vehicle KCF 267S was arbitrarily seized and detained, it was almost an year of being deprived of its use. He argued that the Petitioner was entitled to compensation and cited the case of Rawal, J (as she then was) in Otieno Mak'onyango vs. Attorney General & Another [2012] eKLR the Court held that it was bound to award be fair and reasonable in awarding damages in view of the unique circumstances of that case. 196. Counsel submitted that the Petitioner seeks an award of Kshs. 5,000,000 for violation of his rights and being a senior citizen who runs business all over the Country has been forced to hire and or use Uber for him to conduct business.
1 st Respondent’s written submissions
52. The 1st Respondent filed its written submissions through its Advocate Andambi Chabala . Counsel adopted the facts in the replying affidavit of the 1st Respondent sworn by Ibrahim Abdi Hassan.
53. On behalf of the 1st Respondent, Counsel identified and submitted on the following issues:
a) Whether the Court should strike out the 1st Respondent Replying affidavit and accompanying documents dated 19th March 2024?
b) Whether the 1st Respondent action of seizing and impounding the 131 Petitioners motor vehicle KCF 267S pending confirmation of payment of customs duty and investigation infringes on the Petitioners Constitutional rights secured under Articles 31 and 40 of the Constitution?
c) Whether the seizure and continued detention of motor vehicle KCF 267S was lawfully done?
d) Whether the jurisdiction of this Court has been properly invoked?
e) Whether the Petitioners are entitled to damages and orders sought?
54. On the question of whether the Court should strike out the 1st Respondent Replying affidavit and accompanying documents dated 19th March 2024; Counsel submitted at the onset that the Replying affidavit sworn on the 19th March 2024 by Ibrahim Abdi Hassan was properly commissioned except that the one served on the Petitioner was faint. He explained that the defect arose purely from oversight of the 1st Respondent’s registry officer and having the documents scanned in black and white format. Counsel thus urged the Court not to strike the Replying affidavit and the annexures thereof submitting that the defect was a mere technicality which by dint of Article 159 (2) (d) of the Constitution should not be allowed to defeat the ends of substantive justice for the parties.
55. The 1st Respondent further cited Article 22 (3)(b) which provides that; The Chief Justice shall make rules providing for the court proceedings referred to in this Article, which shall satisfy the criteria that-
(b) formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of informal documentation;
56. The 1st Respondent argued that since the suit raises constitutional issues, the justice of the case would best be served if the parties are heard on merit. Counsel submitted that striking out the 1st Respondent replying affidavit and annexures would deny the 1st Respondent an opportunity to defend the suit in contravention of Article 159(2)(d) of the Constitution.
57. On the question of whether the 1st Respondent's action of impounding and detaining the 1st Petitioners motor vehicle KCF 267S pending confirmation of payment of customs duty and investigation infringes on the Petitioners Constitutional rights guaranteed under Articles 31 and 40 of the Constitution; The 1st Respondent submitted that the seizure and detention of the motor vehicle KCF 267S a
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