Davis Gatobu M’Ndegwa v Divisional Criminal Investigations Officer (DCIO) Kiambu, Inspector General of Police & Josphat Kabaki Njoroge [2022] KEHC 1982 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

MISCELLANEOUS CIVIL APPLICATION NO. 269 OF 2019

DAVIS GATOBU M’NDEGWA.......................................................................APPLICANT

-VERSUS-

1. THE DIVISIONAL CRIMINAL INVESTIGATIONS OFFICER (DCIO) KIAMBU

2. INSPECTOR GENERAL OF POLICE

3. JOSPHAT KABAKI NJOROGE.........................................................RESPONDENTS

RULING

1. I shall begin this Ruling by stating the definition of a “suit” in the Civil Procedure Act Cap 21 as follows:-

“Suit” means all civil proceedings commenced in any manner prescribed.”

2. Order 3 of the Civil Procedure Rules (the Rules) provides that a civil case is commenced/instituted by presenting a plaint to the court. The other way of instituting civil action under the Civil Procedure Act is by Originating Summons: See Order 37 of the Rules.

3. DAVID GATOBU M’NDEGWA (Gatobu) approached this Court through a miscellaneous action and by a Notice of Motion. In other words Gatobu seeks final order to be made by this Court on an interlocutory application of Notice of Motion.

4. At the heart of this matter is the dispute on ownership of motor vehicle Reg. No. KBX 694 N.

BACKGROUND

5. JOSPHAT KABAKI NJOROGE (Njoroge) filed a Miscellaneous Case Misc. Civil Application No. 46 of 2019 before the Kiambu Chief Magistrates (CM) Court. The respondents in that case were the Divisional Criminal Investigation Officer (DCIO) Kiambu, Inspector General of Police (I.G.) and Gatobu as the interested party.

6. Njoroge, before the CM Court filed an application seeking orders to compel DCIO Kiambu to retrieve the motor vehicle KBX 694N.

7. That application before CM court relied on Njoroge’s affidavit dated 4th July, 2019. He deponed as follows: -

(1) THAT I am the registered owner of a motor vehicle registration number KBX 694N a Toyota Dyna truck. (Appended hereto and marked JKN 1 is a copy of the Logbook).

(2) THAT on the 18th February, 2019, I entered into an agreement with one PETER KAGOKO MUHINDI to sell the lorry to him at a purchase price of Kshs.1,200,000. 00 only. (Appended hereto and marked JKN 2 is a copy of the Agreement).

(3) THAT on date of execution of the Agreement, I gave the purchaser possession of the vehicle and the logbook in exchange for two cheques in the amount of Kshs.600,000. 00 each drawn in my favour. (Appended hereto and marked JKN 3(a) and 3(a) are copies of the cheques).

(4) THATI deposited the said cheques in my bank account on the 19th February, 2019, the cheques were on the 20th February, 2019 returned dishonoured for the reason that the cheque was not genuine (Appended hereto and marked JKN 4(a) and 4(b) are copies of the Return Cheque Advice).

(5) THATI attempted to contact the purchaser through the telephone number 0724xxxx which he had indicated in the agreement to no avail because the line was switched off.

(6) THATwhen I could not raise him, I immediately reported to the Divisional Criminal Investigating Officer (DCIO) Kiambu who recorded the incident in the Occurrence Book as OB/32/20/2/2019. (Appended hereto and marked JKN 5).

8. Njoroge further deponed that, later on after he reported to the police of the loss of his vehicle, Gatobu telephoned him requesting assistance from him, Njoroge to get a booking for the inspection of the vehicle in order to obtain the motor Vehicle Inspection Certificate.

9. On Njoroge informing DCIO Kiambu that Gatobu was in Meru County and was in possession of the vehicle, the vehicle was seized by DCIO Timau. Njoroge’s request that either that vehicle be released to him or be retained at Kiambu police station was not acted upon by DCIO Kiambu, hence the prayers sought before Kiambu CM’s court.

10. Gatobu, after obtaining an order to be joined as an interested party in the CM’s court case an order was issued by that court on 7th August, 2019 ordering Gatobu to avail the motor vehicle within two days.

11. On 8th August, 2019, Gatobu filed this Miscellaneous Civil Application before this Court. As stated above he filed this action by way of Notice of Motion dated the same date. He sought the following orders:-

3. That pending the hearing and determination of this application interpartes this honourable court be pleased to call for the file and proceedings in Kiambu Chief Magistrates Miscellaneous Civil Application Number 46 of 2019 JOSEPHAT KABAKI NJOROGE VS. DICIO KIAMBU, INSPECTOR GENERAL OF POLICE & DAVIS GATOBU M’NDEGWAand set aside all orders therein and declare the proceedings as an abuse of court process.

4. THAT this honourable court be pleased to stay all proceedings in Kiambu Chief Magistrates (sic) Miscellaneous Civil Application Number 46 of 2019 JOSEPHAT KABAKI NJOROGE VS. DCIO KIAMBU, INSPECTOR GENERAL OF POICE & DAVIS GATOBU M’NDEGWA.

5. THAT this honourable Court be pleased to call for the file and proceedings in Kiambu Chief Magistrates (sic) Miscellaneous Civil Application Number 46 of 2019 JOSEPHAT KABAKI NJOROGE VS. DCIO KIAMBU, INSPECTOR GENERAL OF POICE & DAVIS GATOBU M’NDEGWA and set aside all orders therein and declare the proceedings as an abuse of court process.

12. Gatobu in support of the above prayers deponed in his affidavit sworn on 8th August, 2019 that on 11th March, 2019 he purchased the subject motor vehicle from Pamellah Karegi (Pamellah)for Kshs.700,000/=. That the said Pamellah was confirmed by Njoroge to be his wife and that Njoroge confirmed to have sold the vehicle to Pamellah his wife though he had not effected transfers to her name. Gatobu deponed that in filing the case before CM court Kiambu, Njoroge was using court process to get back the vehicle.

13. Gatobu in moving this Court has relied on Article 165(6) of the Constitution. That Article provides:-

“The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.”

ANALYSIS AND DETERMINATION

14. The tenor of Gatobu’s application before this Court is that he alleges to be the genuine owner of the subject motor vehicle and he alleges that Njoroge is using the court to get possession of that vehicle from him. Such allegations in my view do not require the invocation of this Court’s supervisory power.

15. Supervisory control is defined in the Black’s Law Dictionary Tenth Edition as:-

“The control exercised by a higher court over a lower court as by prohibiting the lower court from acting extra-jurisdictionally and by reversing its extra-jurisdictional acts.”

16. Article 165(6) of the Constitution provides to the High Court supervisory power, which is exercised by summary process to prevent extra-jurisdictional act of the subordinate court or to aid such a court in the proper administration of justice. The High Court is therefore given that oversight power to check excesses of subordinate court. The High Court where it finds it necessary to do so it has gatekeeping power.

17. From the background set out above, Gatobu has failed to show what actions of the Kiambu CM court can attract this Court to invoke its supervisory power over that court.

18. Gatobu erred to move to this Court seeking to invoke the supervisory power when indeed the CM court is not shown to have acted in excess or extra-jurisdictional. Gatobu if aggrieved by that CM court’s order ought to have either sought that court to review its order or ought to have filed an appeal before this Court. He did neither of the two.

19. Gatobu also erred and indeed, I do find this matter is misconceived because he seeks this Court to determine ownership of the subject motor vehicle on an interlocutory application under a miscellaneous file. I am indeed disturbed by a practice that is creeping into our courts where more often than not a party files a miscellaneous application seeking final orders. That is erroneous. A party ought to institute a suit for final orders as provided under the Civil Procedure Act and/or Rules.

20. In view of the above discussion, I find that the Notice of Motion application dated 17th May, 2021 filed by Njoroge seeking to temporarily injunct Gatobu from using the subject vehicle is not available. Such injunctions are granted under interlocutory application where a permanent injunction is sought in the main suit. Not otherwise.

21. Having found that there is no merit to the two applications hereof it is necessary to reverse interlocutory orders made in this matter on 20th November, 2019 whereby the motor vehicle was released to Gatobu on the professional undertaking of the law firm Kinyanjui Kirimi.

CONCLUSION

22. In the end, I make the following orders:-

(a) The Notice of Motion dated 8th August, 2019 and dated 17th May, 2021 are dismissed with each party bearing their own costs.

(b) The motor vehicle registration NO. KBX 694N shall be surrendered by DAVID GATOBU M’NDEGWA to DCIO Kiambu within 7 days from today’s date.

(c) In default of such surrender, the law firm Kinyanjui Kirimi will be required to show cause why action should not be taken against them.

(d) The Chief Magistrate Court Kiambu file of Misc. Application No. 46 of 2019 shall be returned to that court and shall be mentioned before the Chief Magistrate on a date to be fixed by this Court.

(e) A date will be given to the parties to report to this Court whether today’s order has been obeyed and if no further action will be required this file shall be closed.

RULING DATED AND DELIVERED AT KIAMBU THIS 3RD DAY OF MARCH, 2022.

MARY KASANGO

JUDGE

Coram:

Court Assistant : Maurice

For applicant DAVIS GATOBU M’NDEGWA : - Mr. Kirimi

For 1st Respondent DCIO KIAMBU : - N/A

For 2nd Respondent IG OF POLICE: -N/A

For 3rd Respondent JOSPHAT KABAKI NJOROGE: -N/A

RULING DELIVERED VIRTUALLY.

MARY KASANGO

JUDGE