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Court of AppealDismissedNot stated in the judgment

Gichana v Attorney General & 2 others (Civil Appeal 72 of 2019) [2024] KECA 1680 (KLR)

Court of Appeal of Kenya
22 November 2024
2,961 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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The Court of Appeal dismissed a vehicle owner's bid to blame police for his car's long detention, confirming courts should use ordinary lawsuits, not constitutional petitions, for such claims.

What this practically means

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Executive summary

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The appellant's Toyota Shark (KAQ 215M), a passenger service vehicle, broke down at Metamaywa Shopping Centre on 20th September 2015 and was towed by Keroka traffic police to the police station, allegedly for lack of an inspection sticker; an inspection on 6th October 2015 found it un-roadworthy and a prohibition order issued. No charges were preferred and the vehicle was not released. The appellant petitioned the High Court for release, a declaration of breach of his property rights and compensation of Kshs.2,000,000/-. By a judgment dated 11th December 2017, the trial judge found the detention lawful, attributing continued detention to the owner and driver's failure to attend the station for fear of prosecution. Although the judge observed that Kshs.800,000/- would have been appropriate had the claim succeeded, the petition was dismissed with costs. On appeal, the Court of Appeal (Okwengu, Omondi and Ngugi, JJ.A) considered three issues. First, on pleading, it held that under Anarita Karimi Njeru, as clarified in Mumo Matemu and the Mutunga Rules, a petition must be drafted with reasonable precision but not exactitude; failure to cite the numerical article was not fatal since the right, facts, injury and relief were pleaded. Second, applying the doctrine of constitutional avoidance, it held the claim was properly litigable under ordinary civil remedies, being capable of specific pleading, proof and assessment. Third, on the merits, it found no basis to disturb the trial court's reasonable inference that the appellant and driver avoided the station for fear of prosecution, holding the detention lawful and the appellant's loss self-inflicted for want of mitigation. The Court clarified that the Kshs.800,000/- assessment was speculative obiter, not a partial award. The appeal was dismissed with no order as to costs, each party bearing its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant's petition was incompetent for failure to cite the specific constitutional provisions allegedly violated
  2. 2.Was the detention of the motor vehicle KAQ 215 M lawful?
  3. 3.Did the appellant suffer damages and, if so, what was the quantum thereof?
  4. 4.Costs

Key legal issues

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01

Whether failure to cite the specific constitutional article in the petition rendered it incompetent

Holding

No. The Anarita Karimi precision requirement is substantive, not formal; citing the actual right suffices. The appellant pleaded his case with high specificity and the trial judge applied wrong principles on this limb.

Reasoning

Relying on Anarita Karimi Njeru, Trusted Society of Human Rights Alliance and Mumo Matemu, the Court held that the requirement of precision is not exactitude. Rule 10 of the Mutunga Rules was satisfied by the pleading of facts, injury and relief. A purposive reading of 'constitutional provision' refers to the actual right, not the numerical order of the article, saving judicial resources while avoiding prejudice to respondents.

p. 5
02

Lawfulness of the police detention of the motor vehicle

Holding

The detention was lawful; the vehicle lacked an inspection sticker, was found un-roadworthy, and the inference that owner and driver avoided the police station for fear of prosecution was reasonable.

Reasoning

The Court found the appellant had not countered the deponed facts by supplementary affidavit, including on insurance and inspection. The appellant made no effort to show attendance at the station demanding release, so the continued detention resulted from his own omission, and mitigation of losses was his responsibility.

p. 6
03

Whether the claim properly belonged in constitutional litigation at all

Holding

By the doctrine of constitutional avoidance, the claim should have been pursued under ordinary civil remedies; the damages were capable of specific pleading, proof and assessment under the Civil Procedure Act.

Reasoning

Applying Gabriel Mutava and the National Assembly v Karume principle, the Court observed that constitutional litigation is not open for every claim. The nature of the damage and the acts causing it, including loss of profit from a business vehicle, could be pleaded and quantified with certainty in an ordinary civil suit.

p. 6
04

Whether the trial judge's assessment of Kshs.800,000/- amounted to a partial success

Holding

No. It was a speculative obiter observation, not an award, so the petition was wholly dismissed and there was no inconsistency in dismissing it with costs.

Reasoning

The Court clarified that since the claim had not been proved, the trial judge's observation on quantum was hypothetical. Ground six of the appeal, complaining that the petition was dismissed with costs while partially allowed, therefore failed. The Court declined to address damages given its overall finding.

p. 6

Legal principles established

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  • A constitutional petition need not cite the numerical article of the Constitution relied on, provided the right infringed, the facts and the relief are pleaded with reasonable precision; precision is not exactitude.
  • Where a dispute can be resolved in an ordinary forum without raising a constitutional issue, that alternative forum should be pursued (doctrine of constitutional avoidance).
  • A first appellate court has a primary duty to re-evaluate the evidence on the record and reach its own independent conclusion.
  • A trial court's assessment of quantum made without a proved claim is speculative obiter and does not render a petition partially successful.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party shall bear its own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya
Not stated in the judgment (the trial court referred to related case No. 213 of 2009)
Jurisdiction invoked
First appeal to the Court of Appeal under rule 31(1)(a) of the Court of Appeal Rules

Relief refused

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Allowing the appeal and the petition with costs

The appeal lacked merit; the trial court correctly found the detention lawful and the petition, though competently pleaded, was misconceived as the claim was capable of resolution under ordinary civil remedies

p. 6

Assessment of damages of Kshs.800,000/- treated as a partial award

The trial judge's figure was speculative obiter, not an award rendering the claim partially successful

p. 6

Costs

Each party shall bear its own costs, the matter being a petition brought under the Bill of Rights.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The upshot is that the appeal lacks merit, and is dismissed. This being a petition begged to the bill of rights, we hold that each party shall bear its own costs.
p. 6Disposition and costs
a purposive interpretation of the term constitutional provision as cited in the Anarita Karimi case, and reiterated in the Mutunga rules refers to the actual fundamental right as opposed to citing the numerical order of the article in the constitution
p. 5Pleading constitutional violations - precision not exactitude
Obviously constitutional litigation is not open for every claim which may be properly dealt with under existing mechanisms for legal redress
p. 6Constitutional avoidance
it is this Court's primary duty to evaluate the evidence on the record in order to come to its own independent conclusion on the evidence and the law, as per rule 31(1)(a) of the Court of Appeal Rules
p. 3Duty of a first appellate court
We find that this was not an award pronounced so as to render the claim partially successful.
p. 6Speculative quantum assessment is obiter

Issues in the judgment

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minor

The judgment states the vehicle was impounded on 20th September 2015 in the narrative but the 3rd respondent's replying affidavit record states the impounding and occurrence book entry were on 20th February, 2015.

minor

The judgment does not state the case number of the appeal or the High Court petition, nor the name of the trial judge.

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, "Gichana v Attorney General & 2 others (Civil Appeal 72 of 2019) [2024] KECA 1680 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1680/eng@2024-11-22

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