Gitundu & another v ODPP & another [2023] KEHC 27305 (KLR)

Gitundu & another v ODPP & another (Miscellaneous Criminal Application 024 of 2022) [2023] KEHC 27305 (KLR) (21 November 2023) (Ruling)

Neutral citation: [2023] KEHC 27305 (KLR)

Republic of Kenya

In the High Court at Kajiado

Miscellaneous Criminal Application 024 of 2022

SN Mutuku, J

November 21, 2023

Between

Paul Ngonjo Gitundu

1st Applicant

Stanley Karuba

2nd Applicant

and

ODPP

1st Respondent

DCI

2nd Respondent

Ruling

1. By a Notice of Motion (the Application) dated 25th July 2022, Paul Ngonjo Gitundu and Stanley Karuba, the applicants herein, have come to court seeking to have the application certified urgent and release of motor vehicle registration number KAE 497p Isuzu released to them and costs of the application.

2. The grounds in support of the application are found on the face of it and on the Supporting Affidavit sworn by Paul Ngonjo Gitundu to the effect that the 1st Applicant is the legal and beneficial owner of motor vehicle registration number KAE 497p Isuzu Lorry make NKR 575 blue in colour and that he had bought it from one David Mbuthia Mbugua through a sale agreement dated 12th September 2007 who in turn had bought it from one T. H Owino and Jamnadass Company Ltd.

3. It seems that before he transferred the lorry to his name, the 1st Applicant sold the lorry to the 2nd Applicant in November 2018 through a sale agreement. The 1st Applicant released the motor vehicle to the 2nd Applicant to use. They became aware that another person had obtained a duplicate logbook for the same motor vehicle. They reported the matter to the police at Ongata Rongai Police Station through OB No. 37/15/07/2020 to lodge investigations.

4. The Respondents are relying on the Replying Affidavit sworn by IP Martin Mbae, as he then was. He has deposed that the Applicants reported on 15th July 2020 that motor vehicle registration number KAE 497P belonging to the 1st Applicant had been transferred to one Julius Kamau Maina without consent, knowledge or approval; that he summoned Julius Kamau Maina who told him that he had purchased the motor vehicle from the 2nd Applicant and showed him a logbook S/N 2648583P; that police wrote to National Transport and Safety Authority seeking to authenticate the two logbooks and seeking certified copies of transfer documents to aid in investigation but no response has been received to date and that investigations are still ongoing.

5. This court directed that the matter proceeds to hearing by way of oral evidence by adoption of affidavits and cross examination.

Applicants’ Evidence 6. The 1st Applicant adopted his Supporting Affidavit as his evidence. He reiterated that he sold the motor vehicle in issue to the 2nd Applicant but Julius Kamau who was their witness in the sale agreement claimed that the motor vehicle was sold to him and acquired a second logbook for the said motor vehicle.

7. On cross examination, the 1st Applicant told the court that he retained the logbook when he released the motor vehicle to the 2nd Applicant because the 2nd Applicant had not paid in full the purchase price. He told the court that after discovering that the motor vehicle had two logbooks, he reported the matter to the police who took possession of the motor vehicle to await the outcome of investigations.

8. The 2nd Applicant testified that he bought the disputed motor vehicle from the 1st Applicant on 24th November 2018 but their witness, Julius Kamau, registered in the logbook as the owner of the motor vehicle. He testified that after reporting the matter to the police, they were told to take the motor vehicle to the police station where it has been parked ever since pending investigations.

9. In his further evidence to court, the 2nd Applicant confirmed that Julius Kamau had given him some money to pay school fees but he denied selling the motor vehicle or transferring it to Julius Kamau.

10. CIP Martin Mbae testified for the Respondents. He told the court that the disputed motor vehicle has two logbooks. He identified the two logbooks to the court. He told the court that he has not concluded investigations and that he was still awaiting information from the NTSA about the two logbooks in order to determine which logbook is genuine.

11. He testified that the procedure is to surrender the old logbook before a new logbook is issued in case of sale and transfer of the motor vehicle and that it is unprocedural to have two logbooks in respect of the same motor vehicle.

Analysis and Determination 12. I have considered the evidence by the two applicants and that of the respondents. It is clear to my mind, from the evidence adduced, that the 1st Applicant bought motor vehicle registration number KAE 497P from David Mbuthia Mbugua after the two entered into a sale agreement dated 12th September 2007. The documents produced in court including logbook S/N 241144, the vehicle remained in the registered name of Jamnadass & T. H Owino. There is no evidence to prove that Jamnadass & T.H Owino sold the motor vehicle to David Mbuthia Mbugua. None of these people testified in court. David Mbuthia Mbugua did not testify either to confirm selling motor vehicle to the 1st Applicant.

13. The old logbook shows that the colour of the motor vehicle is white and it is a diesel propelled vehicle. The logbook is the old type that used to fold three times.

14. It seems that the 1st Applicant did not pursue transfer of the motor vehicle to his name. It remained in the names of Jamnadass and T.H Owino. The logbook attributed to Julius Kamau Maina is the new model. It shows the motor vehicle is blue in colour and is petrol propelled although the registration number is the same and the year of manufacture is the same as in the old logbook.

15. It does not require an expert to notice that something is amiss in this matter. No vehicle bears two logbooks under Kenyan law. Once a person buys a motor vehicle, in order to transfer ownership, the logbook bearing the name of the selling owner is surrendered to NTSA in order to generate a new logbook in the name of the new owner. A new logbook is issued in the name of the new owner.

16. The law places the burden to prove a fact on the one who alleges. It is for the applicants to adduce evidence to prove that the 1st Applicant was the owner of the motor vehicle before he allegedly sold it to the 2nd Applicant. To prove this, there was need to call as witness David Mbuthia Mbugua who would have shed light to the fact that indeed he was the owner of the motor vehicle and not Jamnadass & T.H Owino and that he had sold it to the 1st Applicant. Secondly, Julius Kamau Maina ought to have been called as a witness to testify. There is also need for evidence from an officer from the NTSA to confirm the circumstances surrounding the existence of the two logbooks.

17. As the evidence stands, there are serious gaps and shortcomings in it. This court was not given sufficient material to aid it in determining who the owner of this lorry is. All this court can determine is that something is amiss in regard to the existence of the two logbooks. Both logbooks cannot be genuine. If both logbooks are genuine, then this court has not been given evidence to support that. But this court is not able to pronounce itself as to whether both or either of the two logbooks are genuine or fake without evidence. That evidence ought to have come from the NTSA, the government agency mandated to issue logbooks.

18. Has the 1st Applicant proved his case that he is the owner of motor vehicle KAE 497P? The answer is a clear “NO”. Therefore, without evidence to prove that the 1st Applicant owns the disputed motor vehicle this court is not able to find that he sold the said motor vehicle to the 2nd Applicant and therefore order release of the said motor vehicle from the police.

19. As testified by CIP Martin Mbae, investigations ought to conclude before it can be concluded who owns the motor vehicle in dispute. As far as the evidence adduced stands, this court is not able to rely on it to order release of the same to the 1st and 2nd applicants herein. The answer to this riddle lies with NTSA.

20. Consequently, the Notice of Motion dated 25th July 2022 cannot stand as this court is not able to grant the prayers sought. It is hereby dismissed for lack of evidence. Each party shall bear its own costs.

21. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 21STNOVEMBER 2023. S. N. MUTUKUJUDGE