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High CourtDismissedPetition (amended 21st November 2017) - High Court, Nairobi

Andrew Okoth Onanda v Officer Commanding Central Police Station, Nairobi & Attorney General

High Court of Kenya
28 March 2019
3,485 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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If your vehicle is evidence in a criminal case, the court will likely wait until that case is finished before deciding if the police detained it illegally.

What this practically means

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Executive summary

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The petitioner, a registered owner of motor vehicle KBV 440H and an insurance broker, petitioned the High Court alleging that his arrest on 20th July 2017 and the police's continued detention of his vehicle at Central Police Station, Nairobi violated his rights under Articles 27, 28, 40 and 47 of the Constitution and international instruments. He sought declarations, an order for unconditional release of the vehicle, and damages for loss of user. The respondents opposed, contending the vehicle was an exhibit in pending Criminal Case No. 1349 of 2017 (obtaining money by false pretence and forgery) and that the petition was res judicata given Petition No. 402 of 2017, in which the petitioner had challenged his arrest, detention and prosecution, dismissed on 30th October 2018. The court first disposed of res judicata: following John Florence Maritime Services, it accepted the doctrine applies to constitutional petitions but held it could not apply here because both petitions were filed days apart and neither was filed after the other's determination; consolidation would have been the proper course. On the merits, the court held the Articles 27 and 28 claims were already conclusively determined in Petition No. 402 of 2017 and were moot. On the property claim, since the vehicle was an exhibit in a live criminal case with no evidence to the contrary, the court found it imprudent to determine the lawfulness of detention before that case concluded, leaving the petitioner liberty to seek redress thereafter. The amended petition was dismissed with each party bearing own costs.

Key legal issues

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01

Whether res judicata bars a constitutional petition filed before determination of a related petition

Holding

Res judicata does not apply because both petitions were filed days apart and neither was filed after the other's determination; consolidation, not res judicata, would have been appropriate

Reasoning

The court accepted that res judicata applies to constitutional litigation per John Florence Maritime Services, but found the two petitions were filed almost simultaneously. Had the present petition been filed after Petition 402 of 2017 was determined, it would have been res judicata. Since neither preceded the other's determination, the doctrine could not properly apply.

p. 4
02

Whether Articles 27 and 28 rights were violated by the arrest and detention

Holding

Not open for determination; already conclusively addressed in Petition No. 402 of 2017

Reasoning

The court held there was no novel issue regarding Articles 27 and 28 because the earlier petition sufficiently addressed and conclusively determined violations arising from the same arrest, detention and sequence of events on the same day. Any similar issue in the present petition was moot and should not consume judicial time.

p. 4
03

Whether detention of the motor vehicle violated the right to property under Article 40

Holding

Undeterminable at this stage; the vehicle is an exhibit in a pending criminal case and the court deferred the question

Reasoning

The respondents asserted the vehicle is an exhibit in Criminal Case No. 1349 of 2017 and there was no evidence to the contrary. The court reasoned that only upon conclusion of the criminal case would it be clear whether there was reasonable cause to detain the vehicle, and the petitioner would be at liberty to seek redress thereafter.

p. 4

Legal principles established

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  • Res judicata applies to constitutional petitions but must be sparingly invoked and only in the clearest of cases
  • Res judicata cannot apply where two petitions were filed almost simultaneously, before determination of either; consolidation would have been the proper course
  • Where a vehicle is an exhibit in a live criminal case, the High Court should defer determining the lawfulness of its detention until that case is concluded

Court orders

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  1. 1.The amended petition is declined and dismissed
  2. 2.Each party to bear own costs
Jurisdiction invoked
Articles 27, 28, 40 and 47 of the Constitution of Kenya, 2010 (Bill of Rights enforcement petition)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Andrew Okoth Onanda v Officer Commanding Central Police Station, Nairobi & Attorney General", Case Analysis (2019). Petition (amended 21st November 2017) - High Court, Nairobi. Source: 

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.