Benjamin Maingi Makau & 1 other v Hon. Attorney General of The Republic of Kenya & 5 others

BETWEEN BENJAMIN MAINGI MAKAU ....................................................... 1ST PETITIONER MITA SAVINGS & CREDIT CO-OPERATIVE SOCIETY LIMITED ........................................................................................... 2ND PETITIONER AND HON. ATTORNEY GENERAL OF THE REPUBLIC OF KENYA ............................................................................................. 1ST RESPONDENT THE DIRECTOR OF PUBLIC PROSECUTIONS .................... 2ND RESPONDENT THE INSPECTOR GENERAL OF POLICE ............................... 3RD RESPONDENT THE OFFICER COMMANDING POLICE DIVISION (OCPD), KAYOLE .......................................................................................... 4TH RESPONDENT THE BASE COMMANDER KAYOLE TRAFFIC BASE ............ 5TH RESPONDENT THE OFFICER COMMANDING POLICE STATION, KAYOLE .... 6TH RESPONDENT JUDGMENT Introduction 1. This Petition arises from the seizure and detention of motor vehicles registration numbers KDG XXXX and KDN XXXX (“the motor vehicles”) by police officers attached to Kayole Police Station. The Petitioners allege violation of their constitutional rights to property and fair administrative action under Articles 40 and 47 of the Constitution. The Petitioners therefore seeks the following reliefs from this Honourable Court: a. A declaration that action(s) of the respondents in seizing and continuing to detain motor vehicles KDG XXXX and KDN XXXX belonging to the 1st petitioner but operated through the 2nd petitioner is a violation of the petitioners ‘right to property under Article 40 of the Constitution and the Right to fair administrative action under Article 47 of the constitution as well as all the other substantive rights provided under the various other Articles of the constitution disclosed in the heading of the petition. b. An order directing the respondents, either by themselves, their servants, agents and/or any person howsoever acting through them to forthwith release motor vehicles KDG XXXX and KDN XXXX. c. An order permanently barring the respondents, either by themselves, their servants, agents and/or any person howsoever acting through from in any manner whatsoever interfering with the petitioners’’ enjoyment and possession of motor vehicles KDG XXXX and KDN XXXX. d. Damages for breach of constitutional rights. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19339/eng@2025-12-17 2

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e. Any other appropriate order(s), directions and/or reliefs as the Honourable Court may deem just and expedient to defend, uphold and protect the Constitution of Kenya 2010. f. Costs of the Petition. The Petitioners’ Case 2. The Petitioners case as set out in the Petition and the supporting affidavit sworn by Benjamin Maingi Makau (the 1st Petitioner) is that the 1st Petitioner is the registered owner of the two motor vehicles which were acquired through bank financing and are used for public service transport. It is averred that the vehicles are central to the 1st Petitioner’s livelihood and income generation. 3. It is their case that the 1st Petitioner operates the vehicles under the umbrella of the 2nd Petitioner, a transport association, to meet regulatory requirements imposed by the National Transport and Safety Authority (NTSA). The vehicles were allegedly operating lawfully at the time of seizure. 4. It is averred that on 8th February 2024, police officers seized the motor vehicles without explanation and without arresting the drivers. The vehicles were detained at Kayole Police Station. 5. According to the Petitioners, subsequent inquiries revealed that the seizure was allegedly based on warrants from Makadara Law Courts. They assert that no such warrants were shown to them and that the notices to attend court relied upon by the Respondents were inconsistent and defective. 6. The Petitioners maintain that the traffic cases cited by the Respondents were either withdrawn or unrelated to the vehicles. They argue that the continued detention is arbitrary, unlawful, and exposes the 1st Petitioner to imminent financial loss and urged this Honourable Court to grant the orders sought. 7. It is worth noting that the Petitioners did not file any written submissions. The Respondents’ Case 8. In response, the 2nd to 6th Respondents filed their Grounds of Opposition dated 24th February 2025 and written submissions dated 11th November, 2025. The Respondents contend that the Petition is premature, incompetent, and an abuse of the court process. They argue that investigations relating to the motor vehicles were ongoing and that the police acted within their lawful mandate under the Traffic Act. 9. It is further the Respondents’ position that the Petitioners failed to meet the evidentiary burden under section 107 of the Evidence Act. The Respondents argue that no cogent evidence was tendered to demonstrate violation of constitutional rights. The Petition is said to rest on allegations unsupported by documentation. 10. The Respondents maintain that the Petition lacks precision and does not meet the threshold for a constitutional petition as the Petitioners failed to plead with precision the manner in which their constitutional rights were violated. Reliance is placed on the principle in Anarita Karimi Njeru v Republic (No.1) [1979] KLR 154 emphasizing precisions in constitutional pleadings. 11. On the right to property, the Respondents submitted that Article 40 rights are not absolute and may be lawfully limited under Article 24 of the Constitution. They argue that the seizure was reasonable and justifiable. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19339/eng@2025-12-17 3

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12. The Respondents further argued that police officers acted within their statutory mandate under sections 106 and 107 of the Traffic Act. They contend that the law expressly authorizes detention of vehicles pending necessary inquiries and that no compensation is payable for such detention. 13. Regarding the 2nd Respondent, the Director of Public Prosecutions (DPP), it is submitted that no cause of action has been disclosed against him. It is argued that prosecutorial powers are constitutionally insulated and that no directions or actions attributable to the DPP have been demonstrated. 14. The Respondents thus urged this Honourable Court to dismiss the instant Petition with Costs as the same is frivolous, vexatious, incompetent and an abuse of the court process. Analysis and Determination 15. Having carefully considered the Pleadings, the supporting affidavit, written submissions and the authorities relied upon, it is my view that the primary issues for determination are: a. Whether the Petition meets the threshold of a constitutional petition. b. Whether the seizure and detention of the motor vehicles was lawful and within the 3rd to 6th Respondents’ statutory mandate. c. Whether the Petitioners’ constitutional rights under Articles 40 and 47 were violated and what remedies, if any, is he entitled to. Whether the Petition meets the threshold of a constitutional petition 16. It is settled law that not every dispute should be elevated to a constitutional petition. A party invoking the Constitution must plead with reasonable precision the specific rights violated and the manner of violation. 17. The threshold for a constitutional petition was set out in the case of Anarita Karimi Njeru v Republic (supra), where the Court held that: “ if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed…..” 18. Similarly in Communications Commission of Kenya & Others -vs- Royal Media Services Limited & 5 Others [2014] eKLR the Court stated that: “Although article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v Republic, (1979) KLR 154: The necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19339/eng@2025-12-17 4

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19. The court while considering the elements of a sustainable Constitutional Petition in Grays Jepkemoi Kilplagat v Zakayo Chepkoga Cheruiyot [2021] eKLR stated that: “ It is indisputable that a constitutional petition to be sustainable as such must at a minimum satisfy a basic threshold. It must with some reasonable degree of precision identify the constitutional provisions that are alleged to have been violated or threatened to be violated and the manner of the violation and/or threatened violation. I do not suppose it is enough to merely cite constitutional provisions. There has to be some particulars of the alleged infringements to enable the respondents to be able to respond to and/or answer to the allegations or complaints……Although I have in my foregoing discussion adverted to grounds (c) and (d) of the preliminary objection that there are no Constitutional issues that warrant adjudication by the Court and that the Petition may very well Constitute an abuse of the due process of the court, I need to observe that parties are increasingly filing matters that are essentially Civil matters and christening the same as Constitutional Petitions which is not proper. Where there is the alternative remedy of filing a suit in the ordinary Civil Courts, a party ought to invoke the jurisdiction of the Constitutional Court.” [Own emphasis] 20. Rule 4(1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 (the Mutunga Rules) provides as follows: “ Where any right of fundamental freedom provided for in the Constitution is allegedly denied, violated, or infringed or threatened a person so affected or likely to be affected may make an application to the High Court in accordance to these rules.” 21. In the present Petition, the Petitioners largely set out factual grievances relating to seizure of motor vehicles. These grievances are predominantly grounded in statutory traffic enforcement and administrative processes. 22. The Petitioners merely cited Articles 47, 48, and 50 of the Constitution without demonstrating, through specific acts or omissions, how each Article was violated save for Article 40 on the right to property which he demonstrated that the seizure and detention of the motor vehicles violated that right. 23. This Court therefore finds that the Petition partially meets the threshold of a constitutional petition. That notwithstanding, this court will determine the other issues for consideration. Whether the seizure and detention of the motor vehicles was lawful and within the Respondents’ statutory mandate 24. It is the Petitioners’ argument that the seizure and detention of the motor vehicles by the police was unlawful, unreasonable and without justification. They argued that there are material inconsistencies between the notices to attend court, the dates of institution of the traffic cases, and the dates of withdrawal of those cases and such inconsistencies undermine the factual basis of the seizure. On the other hand, the Respondents argued that the police acted within their scope under Sections 106 and 107 of the Traffic Act. 25. Sections 106 and 107 of the Traffic Act expressly empower police officers to remove and detain motor vehicles pending inquiries. This power is statutory and necessary for effective traffic enforcement. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19339/eng@2025-12-17 5

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26. Section 106(3) protects a police officer who has ordered removal of a vehicle from the road under Section 106 (2) from being held liable for any damage to or loss of any item from such vehicle during its removal to or detention at a police station or other place of safety. 27. Section 107, on the other hand, makes it lawful for a police officer to detain a vehicle which has been removed from a road or other public place under Section 106 at a police station or other place of safety until such inquiries have been made by the police as they may think necessary in the circumstances of the case. This section offers protection to a police officer who acts within the limit of the power conferred on him by the law. He must also act in good faith in exercising that power. 28. In the instant case, the Petitioners conceded that notices to attend court were issued in respect of the subject vehicles. Whether such notices were procedurally perfect is a matter for the traffic court, not a constitutional forum. Alleged procedural irregularities in traffic enforcement do not automatically translate into constitutional violations. In Rispa Akeyo Oginga v DCIO Kamagambo Police Station & another [2016] KEHC 1881 (KLR) the court stated that: “ The Petitioner should not come to court under the guise of a Constitutional Petition in order to circumvent the requirements that she complies with the provisions of the Traffic Act and puts her vehicle in a road worthy state. Needless to say this court takes judicial notice of the fact that most accidents that take place on our roads occur as a result of the unroadworhty state of most of the vehicles especially the public service vehicles. This court cannot therefore interfere with the police in the lawful execution of their duties as to do so will be a sure recipe for chaos on our roads.” 29. The Respondents explained that the vehicles were detained pending inquiries. The Petitioners did not demonstrate malice, bad faith, or abuse of power on the part of the police officers. 30. The mere fact that a traffic case was later withdrawn does not render the initial enforcement action unlawful. Investigative and prosecutorial processes are dynamic by nature. 31. The Petitioners had alternative remedies, including applying for release of exhibits before the traffic court or pursuing statutory review mechanisms. 32. The Court finds that the Respondents acted within their lawful mandate under the Traffic Act. Whether the Petitioners’ constitutional rights under Articles 40 and 47 were violated and what remedies, if any, is he entitled to. 33. The 1st Petitioner’s case is that his right to property under Article 40 of the Constitution was violated by the action taken by the police. Article 40(3) of the Constitution prohibits the state from depriving a person of his property of any description, or of any interest in the property, right over the property unless the deprivation meets the exceptions in that article. 34. Article 40 protects property rights but does not shield property from lawful regulatory action. Article 24 permits limitation of rights where such limitation is reasonable and justifiable. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19339/eng@2025-12-17 6

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35. Temporary deprivation of property pursuant to lawful investigations does not amount to unconstitutional deprivation. In Waithera Kamau v Attorney General & 4 others [2014] KEHC 4822 (KLR) the court held that: “ I therefore find and hold that the impounding of vehicle based on reasonable suspicion that it has been involved in the commission of an offence is a reasonable limitation on the right to property based on the law.” 36. The Petitioners did not demonstrate that the detention was indefinite, punitive, or actuated by improper motive. Financial inconvenience alone does not amount to a constitutional violation. 37. On fair administrative action, the Petitioners were aware of the reasons for seizure and the legal framework under which it occurred. They engaged the police and accessed court files. 38. Section 4 of the Fair Administrative Action Act does not outlaw all administrative inconvenience. It targets arbitrariness and illegality, neither of which was established. This Court therefore finds that no violation of Articles 40 or 47 has been proved. 39. In view of the foregoing, the Court finds that the Petition is incompetent and devoid of merit. The Petitioners failed to prove any violation of constitutional rights. 40. Consequently, the Petition dated 15th February 2024 is hereby dismissed in its entirety with no orders as to costs. Orders accordingly. File Closed Accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 17TH DAY OF DECEMBER 2025. BAHATI MWAMUYE MBS JUDGE In the presence of: Counsel for the Petitioners – Mr. Mulanga Counsel for the 1st Respondent – Ms. Were h/b Mr. Weche Counsel for the 2nd to 6th t Respondents- Ms. Ntabo Court Assistant – Ms. Lwambia HCCHRPET. NO. E094OF 2024 JDT Page 6 | 6 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19339/eng@2025-12-17 7

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