Republic v Inspector General of Police Exparte Kennedy Ngeru Irungu [2016] KEHC 2895 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW MISC.CIVIL  APPLICATION NO.  329 OF 2015

IN THE MATTER OF AN APPLICATION BY KENNEDY NGERU IRUNGU FOR ORDERS OF MANDAMUS

AND

IN THE MATTER OF THE INSPECTOR GENERAL OF POLICE THROUGH THE ACTIONS OF THE OFFICER COMMANDING   KIAMUMBI POLICE STATION KIAMBU COUNTY

AND

IN THE MATTER OF ILLEGAL IMPOUNDING OF PRIVATE MOTOR VEHICLE   KAT 165M AND EXERCISE OF FAIR ADMINISTRATIVE ACTION

BETWEEN

REPUBLIC ……………………………………………………........APPLICANT

VERSUS

INSPECTOR GENERAL OF POLICE …………...…………......RESPONDENT

EXPARTE

KENNEDY NGERU IRUNGU

JUDGMENT

1. On  19th October  2015,  Honourable Justice  Weldon Korir  granted  to the Exparte applicant   herein Kennedy Ngeru Irungu leave  to  apply  for an  order of Judicial  Review  remedy of Mandamus  to issue to  compel the respondent, the Inspector  General of Police, to release   motor vehicle  registration No.  KAT 165M registered   in the names of the applicant, from the custody of the Officer Commanding Kiamumbi Police Station or wherever else it was being withheld.

2. The Learned   Judge also  ordered that  costs of the chamber  summons   dated  1st  October  2015  do abide  by the outcome  of the substantive  motion  which  was  to be filed  within  21 days  from  19th October  2015.  The  substantive  motion  was filed on  26th October  2015   within the stipulated  21 days, it  was served  upon the  respondent  Inspector  General of  Police, the Officer Commanding Police Station (OCPS)  Kiamumbi Police  Station and the Attorney  General  on 7th June  2016, the  court also  granted  leave to Everlyne  Ayumah  Oyale  to file  replying  affidavit  as an interested  party  in this  matter and she did file  her reply  on  4th July 2016. The Attorney General fled grounds of opposition on 11th July 2016.

3. The parties had been directed to  file  submissions but as  at the  time of  reserving  this  matter for  judgment  on 12th July  2016, only the  exparte applicant had filed his skeletal submissions on 7th December 2015  dated  4th December  2016.  The respondents filed their submissions  on 15th July, 2016 while the interested  party Evelyne  Ayumah Oyale , after filing   her replying affidavit on     4th July 2016   did not  serve the other parties  with the same  and neither  did she  attend court  on 12th July 2016 to argue her grounds. The court has nonetheless taken into account her opposition to the application by the exparte applicant.

4. I am now  called upon to determine  the merits  of the Notice of Motion  dated  23rd October  2015  filed on  26th October  2015 filed  by the exparte applicant. The Notice of Motion which is s  brought  under the provisions of Order  53 Rules of the Civil Procedure  Rules, Sections   7,11 of the Fair  Administrative Actions Act and pursuant  to the leave of court granted  on 19th October  2015  to apply  seeks for  the following  Judicial Review   order of Mandamus  to be issued and directed at the inspector General and OCPS  Kiamumbi Police Station to release  the motor vehicle   registration No.KAT 165M registered  in the Exparte  applicant’s  names as detained by the  OCPS Kiamumbi Police Station  or wherever else  that the vehicle  is withheld;   The exparte applicant   also prays that the Inspector General of Police be directed  and compelled to  pay such costs  as of loss of user  as shall be assessed, by the parties   or taxing master of the court, accruing  to the  applicant as losses s of non-user, since the date of  impounding  of the  suit motor  vehicle  KAT  165M till its  lawful release; and   that costs of the  Notice of Motion  be met by the respondent.

5. The notice of motion is predicated upon the grounds that, on 2nd September 2015, the OCPS at Kiamumbi Police Station in Kiambu County impounded motor vehicle registration No.  KAT  165M on false and unsubstantiated  allegations that border  on a non recorded  and non factual  claim by  a third  party: that the suit  motor vehicle  is a van  used for  matatu business  on a daily basis  and an economic  engine of the exparte applicant; that  the exparte  applicant is bona fide  registered  owner of the suit  motor vehicle having  purchased it  at a public auction   advertised in the Daily Newspapers  in 2012; That the police  were  irrational  and unreasonable  by criminalizing  an  otherwise  civil dispute through  hopeless claims by a third party thus  occasioning  business losses.

6. That  the police had refused  or otherwise were  unable  to conduct  its own investigations  expeditiously and had  instead  demanded of the  exparte applicant to produce  certain  witnesses  while  the  subject  motor vehicle  continues  to  waste away; that the Occurrence  Book for  Kiamumbi Police Station wherein  the said  motor vehicle  was recorded  went missing  hence the exparte  applicant could not peruse   it; That   the respondent’s  actions  were purely unfair  and punitive  to the exparte  applicant who has  suffered financial losses   for  non-user  of the motor vehicle; that  no criminal charges   were preferred on the exparte  applicant who had  visited  the Kiamumbi police station tirelessly on almost  a daily basis  and that  the exparte applicant  had demonstrated  proof of ownership  of the motor vehicle though a genuine registration book and auction  documents but that the police officers  had remained  adamant  on holding  onto  the vehicle  indefinitely  contrary to the principles of  legitimate  expectation and fair  administrative  action.

7. The Notice of Motion was further supported by the affidavit sworn by Kennedy Ngeru Irungu and the statutory statement filed with the application for leave. In the  statement  filed under  Order  53 Rule 4(1) of the Civil  Procedure  Rules, the Exparte  applicant  exposes the facts  relied  upon. In the said  statutory statement, the exparte  applicant avers that on 15th  February  2013 he  saw  a newspaper  advertisement  in the Daily  Star  notifying  the public  of an intended  public  auction to be held on 23rd February  2013  pursuant  to  repossession  of motor  vehicle KAT  165M and  that  the sale   was to be at the fall of the hammer  as shown by copy  of the said  advert  KN1 and  repossession notice  of  11th February  2013.

8. That the exparte applicant  developed  interest  in the motor vehicle   and purchased  it and a transfer  of the  ownership was effected  in his favour  as per  annexture  exhibit KN2  No K 663961 U issued  on 10th October  2014.  That to  his dismay, the police  were claiming  that the previous  owner of the said motor vehicle,   one Mrs  Everlyne  Ayumah Oyale  had reported  a theft  of the said  motor vehicle  leading  to its impounding  on 2nd September  2015; that the  previous  owner  lost ownership of the said  motor vehicle through  repossession of her property  occasioned by a debt  she owed  Opportunity Kenya  Limited. He exhibited KN3(a)and (b) copies of loan recovery instructions letter to the  auctioneer  dated  11th February  2013  and  auctioneer’s   letter  dared  12th February 2013.

9. Further, that on 21st  September  2015  the Auctioneers  assured him of  good   title  to the vehicle   as per  KN4  but  that the police   were still adamant  on holding  onto  the subject  motor  vehicle  without   legal basis; That he  had lost  shs  3,000/- daily and shs  350/- on  weekends ; that the  exparte applicant  was suffering  losses  due to the  arbitrary excesses of the  respondent  who had  been unwilling  to surrender  the logbook.

10. The verifying affidavit repeats the statements of facts and grounds.

11. In the replying affidavit  sworn by the interested party Evelyne  Ayumah Oyale  on 27th  June  2016  and filed  in court   on 4th July  2016, she  contends  that  the applicant   should have  sued  all parties  involved   in the matter  in order for the  court to hear  and determine  the matter expeditiously.  That the  applicant  was aware  of what  had transpired  between  her and  her group chairman one  Mr Peter Waithaka  of Opportunity  Kenya Micro Loans   who conspired  with Peter M. Gathogo.  That she had been advanced   a loan of shs 566,854 which she repaid leaving a balance of shs 127,478. 40 and that the process of selling her motor vehicle was not legally proper.  That she never consented to her motor vehicle being sold to recover the balance of unpaid loan.  That the   advertisement    was done  in the Star  Newspaper   which is not  convenient  to the people   as opposed to  the Daily Newspaper and  the Standard  Newspaper  hence it  was done  to ensure  the applicant  does not see it; that when the applicant  herein  was  summoned to go to the police  station to record  a statement, he  instead  send his life.  That even after  selling   the said  motor vehicle, the auctioneer did not  settle  her outstanding  loan and neither  did he  disclose to her the price  for which her  motor vehicle  was  sold yet the  said balance  continues to earn interest.  That the applicant took long before filling this claim and after refusing to record a statement with the police.

12. The interested party contended that the application is   defective because it never involved all parties hence it should be dismissed with costs.  She annexed   an undated note from Kiamumbi Police Station and a schedule of her loan repayment.

13. In the grounds of opposition dated 8th July and filed in court on 11th July  2016, the respondent  through  Ms Odhiambo a Leah Litigation  Counsel of  the Office of Attorney General contends that: The officers of  Kiamumbi police  station acted  within the law  without  any irregularity, illegality  and with  fairness; That  the officers  had the authority to detain  the said  motor vehicle  for further  investigations to establish  the truth  of the matter   with regard  to the subject motor vehicle; that  the  granting  of the orders sought  would be  interfering  with  the powers and authority of the respondents.  That the  applicant had not demonstrated   sufficient  cause for  grounds upon which the  court can grant  the orders sought; the application  has no legal basis hence  the prayers by  the respondent  should be dismissed with costs; and  that the application  was  abuse  of court process  and lacks merit, baseless, misconceived.

14. The applicant and respondent filed written submissions. In the skeletal submissions of the  exparte applicant  filed on    7th December   2015   the exparte  applicant reiterated  the  grounds and facts upon the Judicial Review  Orders  of Mandamus  was being  sought.

15. On the other hand, the respondent filed submissions dated 14th July, 2016 reiterating the grounds of opposition as filed and reproduced in this judgment and maintaining that the applicant does not deserve the orders sought.she relied on the cases of R V Kenya Power and Lightning Co. Ltd & another [2013] EKLR wherein it was stated that:

“It is not enough for the applicant in judicial review proceedings to claim that a tribunal has acted illegally, unreasonably or in breach of the rules of natural Justice. The actual sins of Tribunal must be exhibited for judicial review remedies to be granted.”

16. Further reliance was placed on Pastoli v Kabale District Local Government Council and others [2005]2 EA 300 on the requirements for judicial review remedies. Counsel further relied on Anthony John Dickson and others v Municipal Council of Mombasa HCMA 96 OF 2000 where the court held that where there is delay then the court will not issue judicial review orders which are discretionary. And in Riachand Khimji and Co. v AG CA49 OF 1972[1972] EA 536 where the East African Court of Appeal held that Judicial Review orders being discretionary would only issue in exceptional cases like where there was failure of justice or for want of good faith. The respondents urged the court to dismiss the application with costs.

Determination

17. I have carefully considered the exparte applicant’s Notice of Motion application seeking for Judicial Review Orders of Mandamus to issue, compelling the Inspector General of Police to release   motor vehicle registration No.  KAT 165M impounded   and held by the OCPS Kiamumbi Police Station or held in any other place.  I have also considered the grounds, affidavit, statement and exhibits annexed thereto. I have   given equal consideration to the replying affidavit   filed by the interested party Evelyne Ayumah Oyale   and the grounds of opposition filed by the respondent and skeletal submissions filed by the exparte applicant and the respondents’ submissions as well as the authorities elide on.

18. In my humble view, the issue  for  determination  are:

i. Whether the police, in impounding the suit motor vehicle   acted irrationally, illegally and or unreasonably or whether   the police actions violated the principles of fair administrative action.

ii. What orders should this court make?

iii. Who should bear the costs of these Judicial Review proceedings?

19. On the first issue, it is critical to appreciate   what mandamus it and what is the purpose it serves. Mandamus  is defined by theBlack’s  Law Dictionary  Ninth Edition as:

“ A  writ issued  by a court  to compel  performance of a particular  act by  lower court  or a governmental officer  or body, to  correct   a prior  action or failure  to act.”

20. The writ of Mandamus lies to secure the performance a public or statutory duty.  Its origin is traceable from England where it was generally made available through the King’s Bench Division.  The remedy was  issued to enforce  public  duties of  all kinds such  as against  inferior  tribunals  which refused  to exercise  their jurisdiction  or against   municipal  corporations which failed to hold elections or  meetings. At present mandamus is issued to enforce  performance of statutory  duties   of public bodies  and the  court retains  the power to withhold  the remedy where it   would not  meet the interests of justice  as  was held in Binny Ltd  & Another  V Sadasivan  & Others  SC India CA  4839/2005.

21. InHalsburys  Laws  of England  4th Edition  Volume 1 page  111 paragraphs 89 and 90states that:

“ The Order of Mandamus  is of  a most  remedial  nature, and is, in form, a command  issuing  from the  High Court  of  justice  directed to any person, corporation or inferior tribunal, requiring  him or then to do  some  particular  thing therein specified  which appertains to  his or their office and is in the  nature  of a public  duty.  Its  purpose is to  remedy the defects of justice  and  accordingly it  will issue, to the  end  that justice   may be  done, to the end  that justice  may be done, in all cases  where there is a specific legal right and  no specific  remedy  for enforcing  that right, and it may issue  in cases  where, although there is  an alternative  legal remedy, yet  that  mode of redress is less convenient, beneficial  and effectual.  The order must command  no more that the  party against  whom  the application is made is legally bound  to perform  where a general duty is  imposed, a mandamus  cannot  require  it to be  at once where  a statute , which  imposes a duty  leaves  a discretion as to the  mode of   performing the duty in the  hands of  the party  on whom the  obligation is laid, a mandamus  cannot  command  the duty in question to be  carried out  in a specific way.”

22. The above principles   were adopted in Kenya National Examinations Council Vs the Republic Exparte Geoffrey Gathenji Njoroge & Others [1997] e KLR.From  the above, it is clear that  to issue   a mandamus  order is  a matter  in the discretion of the court  and  that a party  who seeks  Judicial Review  Orders  of Mandamus must  demonstrate  existence of  a legal  right  to the performance  of a legal duty;  that  the legal duty must be  of a public  nature; that the party against  whom  a mandamus  is sought  must have  failed, despite  the demand, to perform  the legal  duty to the detriment  of the  party who has the legal  right  to expect  the performance.

23. In SI Syndicate V Union of India Air [1975] SC 460, the Supreme Court of   Indiastated that:

“ As a general rule, the orders  would  not be  granted  unless the  party complained   of has known what  it  was  required to do, so that  he had the means of  considering  whether  or no  he should  comply, and it must be shown by evidence that  there  was  a distinct  demand of that which  the  party seeking the mandamus desires to enforce, and that  the demand  was met  with refusal.”

24. Thus, mandamus will not be granted where to do or not to do an act is left to the discretion of the authority.  The duty must be   imperative and should not be discretionary. Further, it is clear that mandamus will issue where there is a legal right and there is no specific legal remedy for enforcing it. Nonetheless, mandamus may issue in cases where there is an alternative legal remedy but that mode of redress is less convenient, less beneficial and less effective.

25. In the instant case, the exparte applicant is the legal and registered owner of motor vehicle registration No.  KAT 165 Minibus matatu as shown by the title registration documents exhibited in court.  He purchased  it at public  auction from Daystar Auctioneers  who had repossessed  it from the interested party herein Evelyne  Ayumah Oyale  who had  defaulted  to repay an SME loan  owed to Opportunity Kenya  Limited.

26. The  instructions  to confiscate  the  vehicle/property  of Evelyne   Ayumah  Oyale  were  given to Daystar  Auctioneers  on  11th February 2013  by Opportunity  Kenya  (micro loans) for  an outstanding sum of shs  370,000.  The remarks on the loan recovery confiscation letter were that the Auctioneers should attach property/movable goods   belonging to Mrs Oyale Evelyne Ayumah.  The Opportunity  Kenya Limited undertook to indemnify  the Auctioneers against  any complaint  from the debtor  who had  a motor vehicle  KAT  165M Nissan  Matatu  plying the Kahawa West  route.

27. In the  letter dated  12th February 2013 by Daystar Auctioneers to Opportunity  Kenya  Limited the Auctioneer  states that  upon  receiving  instructions  to confiscate  the property  of Evelyne Oyale  Ayumah, she voluntarily decided to give her  motor vehicle  KAT  165M instead  of her household  goods  being attached which  she claimed  would affect her  children.  Further, that the debtor/interested party herein signed  to that effect and gave  the Auctioneers  her National  identity card copy, a motor vehicle transfer form, Pin Number  and  that she had promised  to hand over  the original log book later which she  claimed was with  her friend  Serah Wambui.

28. Further, that the interested party had promised to pay the outstanding debt with opportunity Kenya Limited in three days failure to which the vehicle   should be auctioned on 23th July 2015.

29. Annexture  KNA(b)  is the repossession/ attachment   dated 11th February 2013  showing  the list of  items  attached from the interested party’s house  for recovery of shs  370,000 and with a note  that the debtor   had voluntarily  given  out her  Motor vehicle  KAT  165M as security  to repay the loan and in default it should be sold  on 23rd February 2013.

30. From February 2013, the vehicle   was transferred to the exparte  applicant on  10th October  2014  after a  public auction as advertised  in the Star Newspaper   by Daystar Auctioneers  on  15th February 2013 in the classified  section.

31. The interested party Everyone    Ayumah  Oyale in her replying  affidavit alleges that she never  consented  to the sale of  her motor vehicle  to recover the debt  which debt she claims  was  less than the amount  claimed;  and that   there  was a conspiracy  between the Chairman of Opportunity Kenya Ltd   and the Auctioneers  to dispose of  her vehicle without  her consent since the outstanding  loan had not  even  been repaid  and neither  had the Auctioneer accounted to her the proceeds of sale.

32. The interested party annexed to her replying affidavit   a note from Kiamumbi Police Station “ to whom it may concern” to the  effect that  the bearer  thereof  had reported  to the police station the theft  of her motor vehicle  KAT  165M white in colour  in early 2013  but that  she lost  the OB Number  which  was still  being looked  for.  Further, that she  had spotted the said   motor vehicle  plying route  Ruiru- Ruaka Route  and that she had  all the documents  hence she  should be assisted and  the station informed for further  action.  The note is stamped and signed by officer in charge Kiamumbi Police Station.  However, that note is undated.

33. The  interested party also annexed a  statement  of account  from 3rd  January 2012  to  31st December  2014  for Somesha savings.  The name of the bank or SME is not indicated but only the Eastlands Brach is indicated.

34. On the other hand, the respondent   filed grounds of opposition stating that the police had acted within the law   without any irregularity, illegality and with fairness.  Further,  that the  officers had the  authority  to detain the  said  motor vehicle  for further  investigations to establish  the truth of the matter  with regard  to the  motor vehicle in question.  In  addition, the respondent contends   that granting  the orders sought  would be  in ordinary circumstances  be  interfering  with the powers and authority  of the respondent; that  there is no sufficient   cause for issuing  the orders sought  and that  the application is baseless  and lacks  merit  hence it   should be   dismissed.

35. From  the above  scenario, the question  is  whether  the exparte  applicant  deserves  the Judicial Review  remedy  of Mandamus to compel the Inspector  General to release  motor vehicle registration KAT 165M Nissan matatu.

36. On  the facts  of this case, I am satisfied  that the exparte  applicant  has shown that he is  the legally  registered  owner of the subject  motor vehicle  KAT 165M from 10th October  2014. I am  equally satisfied that the said  motor vehicle  was  advertised  for sale  at a public  auction on 15th  February 2013  in the Star Newspaper  by Daystar  Auctioneers. As to whether  there  was a conspiracy  between  the Auctioneers  and the  Opportunity Kenya Limited  from whom  the interested party  Evelyne Ayumah  Oyale  obtained a loan  and  defaulted  and as to  whether  or not theAauctioneers had  not accounted   to her of the  sale  price  or even settled  the  outstanding  loan  is matter for determination  is civil proceedings  which Everlyne  Ayumah  Oyale is free to institute  against  the offending  parties.  Everlyne Ayumah Oyale is also free to file a complaint   against   the Auctioneers before the Auctioneers Licensing Board for appropriate action.

37. But to allege that the interested party had in early 2013 reported  the  theft  of her motor vehicle  to the police but  that the  same police  who  received   her report could not take the Occurrence Book  number is  fallacious  and dishonest of her. This court  does not believe the interested party’s version that since   early 2013 despite   her allegedly  reporting  to the  police that her motor vehicle  had been  stolen, and in the absence of an  Occurrence Book number, the police  had never traced  the said motor vehicle  until  2015  when she saw   it and   reported  back to the  police  to take  action.

38. For the  police  to justify he impounding   and or detaining  of  the subject motor vehicle, they must  demonstrate   that they   had received  and booked a report of the loss  of the said motor vehicle  and that  they had  been making  efforts  to tract it  without  success from early 2013  to 2015 when they  traced it.  The police never swore any affidavit to justify their actions.  They did not produce in evidence any Occurrence Book report of theft of the subject motor vehicle.  The police, in my humble view, are not authorized to impound property and detain it without cause as they did in this case.  The police are law enforcement officers and are charged with the duty of maintaining law and order and protection of life and property of all persons.  They  are not debt collectors   and neither  are they  authorized  to attach property  but to provide  security, where  necessary, to enforce  court orders or any statutory  and enforcement  process.

39. In the instant case, it is clear in the absence of any affidavit  justifying  impounding of the  subject motor vehicle  KAT  165M, I find that the  actions by the police  at Kiamumbi  police station  are not  only illegal, irregular  and irrational and without  any fairness or at all.  It was arbitrary and without justification.

40. Albeit  the respondent’s legal counsel  the Attorney General in his statements on grounds of opposition and submissions claims that  the police action  was authorized in order to  investigate  to establish the  truth  of the matter regarding  the  matter   with regard  to the subject  motor vehicle, there is  no evidence  by way of affidavit  to show that the police  were investigating the loss of  the subject  motor vehicle  or at all  from the time  of the impoundment  to the  time of  writing  and delivery of this  judgment.

41. The respondent’s mere statements do not amount to evidence or justification to act the way they did.  There is no absolute   authority  granted  to the  police  to impound  motor vehicles which are not even suspected of being stolen property and whose registered owners go about  their ordinary  cause of  business  and detaining   them  indefinitely. In this case, there is even no evidence that the police were contemplating bringing any criminal charges against the exparte applicant for being in illegal possession of the suit motor vehicle.

42. The police, in my humble view,  abused  their  power and authority  in impounding  the exparte  applicant’s  motor vehicle  which is  registered  in his name  and detaining   it without  any justifiable  reason.  There is  every  evidence   on record that  the police  were provided  with documents of  ownership  of the subject motor  vehicle  and  they have not  bothered  to investigate  whether   those documents  are genuine  or not yet  they have   continued for over one year, to  detain the subject  motor vehicle  which  as correctly submitted by  the  exparte  applicant, must be  wasting  away as there is no guarantee that it is  detained  in an environment  which is safe and  or free from destruction  due to  prolonged  immobility  or even vandalisms.

43. Article 40 of the Constitution guarantees every person the right to own and have property of any description in any part of Kenya.  The subject motor vehicle, it has been established, legally belonged to the exparte applicant.  If for  any other  reason, the police  believe that the said motor vehicle was illegally  acquired  by the exparte  applicant, they are  under a statutory duty to investigate  and present  evidence  and recommendations to the Director  of Public Prosecution to prefer criminal  charges  against the  exparte applicant.  Todate, which is nearly one year, no such intention to charge the exparte applicant with any offence related to the suit motor vehicle has been demonstrated.  There is  also no  evidence that  the  exparte  applicant , being the  legally  registered  owner of  motor vehicle KAT 165M  was ever   given a hearing concerning  ownership and  or possession of the subject  motor vehicle  before it   was impounded  and  detained  by the police.

44. The police have no discretionary power to impound or detain or not   to impound or detain or release an illegally impounded and or detained motor vehicle. The   function of the court in Judicial Review proceedings is to ensure that lawful power and or authority is not abused by unfair treatment.  The court has no power to usurp any power granted or conferred on another public entity or body.

45. In the present case, I find that the police   had no powers or authority to impound and detain the exparte applicant’s motor vehicle KAT 165M.  They therefore acted ultra vires and therefore acted illegally in violation of the rules of natural justice.  I also find that the actions by the police, which they have not attempted to justify, were actuated by malice.  They acted high handedly and unconstitutionally in depriving the applicant of his property in the suit motor vehicle without any lawful or justifiable excuse.  The police must be stopped. The police had no power to resolve civil dispute as to ownership of motor vehicles. Where a public  body  or officer   exceeds  its mandate in law and  operates   outside  its legal jurisdiction, as was done by the police in this case, then this  court has   the power  to call  forth the decision leading to  such action  and  quash it. I find without hesitation that the decision to impound and detain the suit motor vehicle was and remains illegal. There is no reason put forth that can be called lawful   for the continued detention of the suit motor vehicle.

46. Consequently, I find that  the notice of motion is  meritorious and I proceed to grant  and issue  Judicial Review  Orders of Mandamus directed  at the Inspector  General   of Police  and his subordinates  represented by the Officer Commanding Police Station, Kiamumbi  Police Station to forthwith   release  to the exparte  applicant Kennedy Ngeru Irungu  motor vehicle  registration No.  KAT 165M from wherever it is detained or held without any conditions.

47. On  the prayer  for loss  of user, no proper  evidence  was  laid before  the court  in an appropriate  manner  for assessment  of damages  for loss user.  Accordingly, I reject  to make a finding  on that prayer  and direct the  exparte  applicant to  file an  appropriate  claim before the court  exercising civil jurisdiction  if he so  desires.

48. I award costs of the application for leave   and this Notice of Motion to the exparte applicant   to be paid by the office of Inspector General of Police.

Dated, signed and delivered in open court at Nairobi this 7th day of September 2016.

R.E. ABURILI

JUDGE