Khalef Hamed Ahmed Al-ghafiry v Mohamad Aboud Bwana & 3 others

declarations of violations of the petitioner's rights under articles 28, 29, 31, 33, 47 and 49 of the constitution and misuse of police powers by officers of the 2nd and 3rd respondents and instigated by the 1st respondent and compensation in the form of damages for the alleged violations of his constitutional rights. 2. The petitioner's complaint arises from what he terms as a purely civil dispute between himself and the 1st respondent. He alleges that he entered into a private arrangement with the 1st respondent, who boasts of being a retired police officer and now an employee of the Kenya Ports Authority (KPA), regarding motor vehicle registration number KDP 6820 Toyota Vitz, whereby the petitioner says he voluntarily supported repayment, maintenance and operational costs on an entirely personal, informal, non-commercial nature devoid of a car hire contract, lease agreement or PSV licensing. He thereafter returned the said vehicle to the 1st respondent on 26th May 2025 without any incident or objection. However, on 31st May 2025, the 1st respondent with a group of men, among them one who claimed to be a senior officer of the Anti-Terror Police Unit (ATPU) in Malindi and a brother-in- law of the 1st respondent went to his residence at Kinondo and amid harassment of his wife, minor daughter and farm worker, arrested and took him to Kiembeni police station. At the time, the man was armed and issued violent threats demanding that the petitioner pays some money purportedly owed to the 1st respondent. 3. The petitioner was forcibly taken to Kiembeni police station where his finger prints were taken under protest as, according to him the matter was civil and without any criminal element. He was released upon posting a personal bond of KShs 20,000/=. He was informed that he would be charged at Shanzu Law Courts on 3rd June 2025 should the 1st respondent present credible evidence but no charge was ever filed against him nor called in open court. 4. He thus contends that his rights under Article 29(c) of the constitution - freedom from psychological torture) and article 31(c) right to privacy of his home were violated. Further that the 1st respondent has embarked on a campaign of public defamation labelling him as a super conman, fraudster and flight risk, thereby injuring his personal and professional reputation in violation of article 33(3) of the constitution. 5. Alongside the petition the petitioner filed a notice of motion dated 9th June 2025 praying for conservatory orders restraining the 2nd and 3rd respondents, their agents, officers or assigns from arresting detaining, summoning, harassing or otherwise interfering with his liberty and security. That prayer was granted as an interim measure at the first mention of the matter for directions on the hearing of the application, in the absence of the respondents, upon the court being satisfied that they had been duly served. 6. The petitioner also prays for an order that pending the hearing and determination of the petition, an interim injunctive and conservatory order be issued restraining the 1st respondent whether by himself or through his agents, proxies or police officers from publishing, uttering or circulating defamatory statements against the petitioner; from misusing state security agents to intimidate, harass or interfere with the petitioner's rights, liberty or of his family and for a declaration that the actions and conduct of the respondents as set out in the petition and supporting affidavit of the petitioner violate his rights under articles 28, 29, 31, 33, 47, and 49 of the constitution. 7. The application is filed under articles 22, 23 and 165 of the constitution, sections 24 & 52 of the National Police Service Act (Cap. 84) Laws of Kenya, Rule 23 of the constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 and all other enabling provisions of the law. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19710/eng@2025-12-17 2

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8. The grounds in support of the application are laid out on the face thereof and expounded in the supporting affidavit sworn on 9th June 2025 and supplementary affidavit sworn on 30th June 2025 by the petitioner. It is the petitioner's contention that the 1st respondent is abusing his connections to the police to settle personal grievances while the 2nd and 3rd respondents have been used as instruments of harassment by way of unlawful arrest, threats and intimidation of the petitioner in a matter that is purely civil in nature, thereby violating the petitioner's constitutional rights. That the applicant is under imminent danger of further arrest and damage to his reputation. 9. The application is opposed by the 1st respondent through his replying affidavit sworn on 19th June 2025. 10. He deposes that the petitioner is well known to him and he had let to him his motor vehicle a Toyota Vitz, registration number KDP 6820. The latest hiring leading to the present dispute was on 3rd January 2025, at their usual monthly rate of KShs. 60,000/=. The respondent handed over the vehicle to the petitioner with full tank of fuel, serviced and cleaned, and without any physical damage. The petitioner paid the hire charges upto March 2025. He did not make full payment for the month of April leaving a balance of KShs. 15,000/=. Instead, on 24th April 2025, the Petitioner via text message, asked the 1st respondent to lend him some money to help the petitioner facilitate a payment from Kwale County Government where he was owed promising that he would clear the April fee balance of the hire of the vehicle together with the amount borrowed. The 1st respondent lent the petitioner money and the money owing from the petitioner as at the time of this case KShs. 251,000/=. He has attached the various text message correspondences he had with the petitioner as well as copies of extracted MPESA statements. 11. In spite of the petitioner confirming receipt of his money owed from Kwale County Government, he never settled the amount owed to the 1st respondent. The 1st respondent therefore asked the petitioner to return the said motor vehicle which the petitioner agreed to return at the same place the 1st respondent had handed the vehicle to him on 3rd January, 2025 at a petrol station in Ukunda. 12. The petitioner did not deliver the vehicle to the respondent in person but left the car keys with a different person. On inspection, the 1st respondent found the car in poor condition, against their agreement. The fuel tank was, empty, the physical body was damaged, essential accessories like car jack, wheel spanner, air compressor and spare wheel were missing, and a new battery had been replaced with a smaller one. New tyres were replaced with old worn out tyres. The dashboard was tampered with showing there was an attempt to obtain the tracker. 13. The 1st respondent called the petitioner who said he was on his way but never showed up and switched off his phone. 14. Assisted by a former colleague, one Mida, and by using the car tracker, they traced the petitioner's residence at Ukunda and found his wife and daughter but not the petitioner. On his way to Mombasa, the petitioner sent the 1st respondent a text message saying that he was going to sue him, and that he should stop looking for him but report any issue he had against him to the police. 15. The 1st respondent proceeded to report to Kiembeni police station under OB No. 33/27/05/2025 and together with the help of the car tracker, they tracked down the Petitioner""s other residence in Kiembeni estate. They went there but they did not find the Petitioner but a woman who was surprised to learn that the said vehicle was not the Petitioner""s. 16. On 31st May, 2025 acting under intelligence, and with the help of police from Diani police station, the Petitioner was arrested at his home in Ukunda and taken to Kiembeni police station where the matter was reported. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19710/eng@2025-12-17 3

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17. The petitioner accepted liability for the damage and the arrears owed of KShs 251,000, and he sought time until 2nd June, 2025 to settle the matter amicably. He was thus released on a police bail and required to appear at the police station, not in court, on the 2nd June, 2025 to confirm payment otherwise he would be processed and charged with obtaining under false pretenses. The 1st respondent has attached a copy of the Requisition to compel attendance at Kiembeni Police Station under section 52(1) of the National Police Act. 18. However, the Petitioner failed to appear at the police station and the Investigating Officer has been put together the evidence which file is now at the ODPP for approval of charges. 19. The 1st respondent has also attached to the replying affidavit a copy of his statement recorded with the Police. 20. It is therefore the 1st respondent's response that there have been no violations of the Petitioner""s rights as alleged in his petition and application and the same are an abuse of court process intended to defeat justice 21. The 1st respondent deposes that he has instructed his advocates to pursue the recovery of the money owed in a civil suit even as police take action against the petitioner in the criminal process. 22. The 1st respondent denies that he has ever defamed the Petitioner as his claim is based on truth and all the processes followed by police were proper and there was no violence on the Petitioner or his family. 23. In his supplementary affidavit, the petitioner deposes that the 1st respondent failed to deny allegations made by the petitioner in his application such that he was a former police officer, implying that he had influence over the police and that he was accompanied by his brother-in-law attached to the ATPU, Malindi, who was armed and threatened to shoot and harm the petitioner and his family. He denied the assertion by the 1st petitioner that the vehicle, the cause of the dispute was given to him for hire and deposed that he was assisting the 1st petitioner with KShs 35,000/= per month. However, when he sought for assistance for an emergency from the 1st respondent, he declined, demanded for his vehicle back and resorted to use the police for harassment and intimidation. He denied that he asked the 1st respondent to involve the police if he wished. He further denied that he vandalized or damaged the 1st respondent's said vehicle. The rest of the depositions would pass well as submissions. 24. There was no response by the 2nd to the 4th respondents to the application despite service. 25. The notice of motion was disposed of by way of written submissions filed by the petitioner and the 1st respondent. 26. The petitioner, acting in person, has made his submissions as if he was arguing the petition and not the application. Prayer number 2 for conservatory order restraining his arrest, detention, summoning and harassment or interference with his liberty and security by the 2nd and 3rd respondents having been granted at the interlocutory stage and prayer No. 4 being based on the petition which is yet to be considered, what remained in the application is prayer No. 3 for interim injunctive and conservatory orders against the 1st respondent from circulating defamatory statements against him and misusing state security agencies to intimidate, harass or interfere with the petitioner's rights, liberty and family. 27. The petitioner has not made any submissions on the issue of injunctive relief against the 1st respondent publishing, uttering or circulating defamatory statements against him as prayed. 28. The 1st respondent set out the following issues for determination in his submissions: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19710/eng@2025-12-17 4

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a. Whether the Respondents acted unconstitutionally and ultra vires enforcing a civil dispute by criminal means. b. Whether the Petitioner's rights were violated infringed or threatened. c. Whether the alleged defamatory statements violated the Petitioner's constitutional rights. d. Whether the Petitioner is entitled to the reliefs sought in the application. e. Who should be granted costs. 29. It is apparent that even though the 1st respondent titled his submissions as addressing the application, the issues set out above are on the main petition which is yet to be set down for hearing. I have indicated above what the submissions on the application ought to address. 30. I have considered the application filed herein, the grounds and the affidavit in support thereof, the response thereto by the 1st respondent and the submissions by learned counsels for the two parties. 31. As stated above, the application is argued on the basis of the prayer for conservatory orders and not injunctive orders. Therefore, for injunctive orders I would quickly state that the application was not argued on the principles for grant as set out in the cases of East African Industries v Trufoods [1972] EA 420, Giella v Cassman Brown & 2 others [1973] EA 358 and Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] KECA 606 (KLR). I find that the prayer for injunctive relief is not supported and the same cannot be granted. 32. That leaves the prayer for conservatory orders. The proceedings herein are brought pursuant to article 22 of the constitution which provides for the enforcement of the Bill of Rights. Under article 23(3)(c), a conservatory order is one of the reliefs that may be granted by a court where an allegation asserting violation or threat of violation of any constitutional right or fundamental freedom is made. 33. The nature of a conservatory order has been explained in the case of Invesco Assurance Co v MW (Minor suing thro"" next friend and mother (HW) [2016] KEHC 5318 (KLR) as follows: “ A conservatory order is a judicial remedy granted by the court by way of an undertaking that no action of any kind is taken to preserve the subject until the motion of the suit is heard. It is an order of status quo for the preservation of the subject matter." 34. The applicable principles considered by the court in a prayer for a conservatory order, are as stated in the case of Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] KEHC 2174 (KLR) where the Court summarized the principles for grant of conservatory orders as follows: i. The need for the applicant to demonstrate an arguable prima facie case with a likelihood of success, and to show that in the absence of the conservatory orders, he is likely to suffer prejudice. ii. Secondly, whether the grant or denial of the conservatory relief will enhance the constitutional values and objects of a specific right or freedom in the Bill of Rights. iii. Thirdly, the court should consider whether, if an interim conservatory order is not granted, the petition or its substratum will be rendered nugatory. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19710/eng@2025-12-17 5

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iv. Whether the public interest will be served or prejudiced by a decision to exercise discretion to grant or deny a conservatory order as was held by the Supreme Court in the case of Gatirau Peter Munya -v- Dickson Mwenda Githinji & 2 Others [2014] eKLR. v. Finally, the court is to exercise its discretion in deciding whether to grant or deny a conservatory order. The court must consequently consider all relevant material facts and avoid immaterial matters. The court will consider the applicant's credentials, the prima facie correctness of the information made available, whether the grievances are genuine, legitimate and deserving and finally whether the grievances and allegations are grave and serious or merely vague and reckless. 35. I have considered the application by the petitioner and the response thereto by the 1st respondent. It is apparent that the two are engaged in a dispute over the conduct of each against the other. The petitioner alleges that the 1st respondent is harassing him by employing state security mechanisms in a matter that is civil in nature and should be handled as such. The 1st respondent on his part maintains that the petitioner committed criminal acts that call for the involvement of the police by way of arrest and being charged. 36. It is my considered view that the two parties herein require a mediator to try and reconcile them rather than the grandstanding that they are deploying one against the other. I will therefore not say more than to refer the dispute herein to Court Annexed Mediation for resolution. I am well aware that there is a constitutional petition herein. However, the underlying issues are allegations by the 1st respondent that the petitioner misused and damaged the 1st respondent's motor vehicle and failure to pay for the same while on hire while on the part of the petitioner he alleges with regard to that issue that the 1st respondent resorted to employ the use of police powers by the 2nd and 3rd respondents when it was not warranted. 37. If these issues are addressed, the matter can be resolved amicably. Consequently, this file is referred to the Deputy Registrar to appoint a court mediator in this matter to handle the dispute. The dispute is principally between the petitioner and the 1st respondent and so the 2nd, 3rd and 4th respondents need not be involved in the mediation exercise. 38. The matter will be mentioned before the Deputy Registrar of this court on 14th November 2025 to confirm appointment of the mediator and the matter to proceed there. 39. Mention before this court to determine whether the mediation will be on course on 17th December 2025. 40. At this point, I make no orders for costs. 41. Orders accordingly. ANDAYI W. F. JUDGE In the presence of: Petitioner appearing in person. N/A for the 1st Respondent N/A for 2nd to 4th Respondents Ummu: Court Assistant. ANDAYI W. F. JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19710/eng@2025-12-17 6

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