Former Changamwe OCS ordered to pay Sh19.2m over vandalised truck

Changamwe Police Station in Mombasa County. [Courtesy]

When the Changamwe Officer Commanding Station allowed the detention of a Mercedes-Benz Actros prime mover and trailer in 2021, he did not anticipate that six years later he would be liable to pay Sh19.2 million for the vandalised truck.

The traffic officers from Changamwe had flagged down the said truck and proceeded to arrest and detain it four to five months after Mukhdhar Abuu launched a complaint that his truck had been stolen

However, investigations revealed that the said truck belonged to Abdullahi Mohamed, who used it in the business of transporting cargo within and outside Kenya.

Mohamed sued Abuu, OCS Changamwe on behalf of the DCIO and Attorney General (AG), seeking Sh19,153,392 as compensation for lost business and a vandalised truck.

Mohammed told Mombasa Chief Magistrate J Kalo that on the day of arrest, the truck was en route to Juba after securing a millet and sorghum transportation tender of Sh1 million.

“On September 24 2021, while driving to the grain warehouse at Changamwe to collect the cargo, the truck was flagged down by police officers from Changamwe Police Station, arrested, and the prime mover and trailer were detained at the station,” said Mohammed.

The Magistrate proceeded to award Mohammed Sh500,000 as general damages for mental anguish and suffering and Sh13,990,000 as special damages, together with costs and interest.

However. Abuu successfully appealed the award after Justice Jairus Ngaah absolved him of any liability for the vandalised truck and loss of business.

The OCS and AG were left to pay the said monies after they failed to appeal the said award.

Abuu told the police that the said truck was his and had been stolen and was being driven by Mohammed.

Mohammed was held until September 25, 2021, and released without charge but his truck remained in police custody and was broken into and vandalised.

In his case, Mohammed accused Abuu of making a false complaint and misrepresentation against him, acting in bad faith and malice and claiming an illegal interest in his vehicle and colluding with the OCS to arrest and detain the vehicle that cost him the Juba contract.

Mohammed accused the OCS of failure to investigate properly, unlawful arrest and detention and failing to secure the vehicle at the station, and aiding vandalism and theft of his property.

Justice Ngaah noted that the AG did not file an appeal despite being served with the record of appeal.

In his defence, Abuu told Justice Ngaah that he was not responsible for Mohammed’s loss, if any,

suffered any loss because the vehicle was never in his custody or control and he played no part in its detention.

In the lower court, the OCS and AG also denied the claim and filed a notice of claim against Abuu seeking full indemnity from Mohammed.

The police in their testimony said that the said detained trailer and truck had nothing to do with the complaint lodged by Abuu.

Police Constable Ernest Wambua told the court that the detained truck was a directive from the former DCIO Changamwe.

“There was no complaint against any truck as per the OB report. The motor vehicle and trailer, the subject of this case, were detained at the police station on the instructions of the former DCIO. The vehicle and trailer were in the custody of the police, said PC Wambua.

The said truck was detained for five months at the police station from September 24 2021 to January 27 2022 and was later released by the court orders of E Muchoki.

Wambua said that the investigations, the logbook and the NTSA search confirmed Mohammed as the owner, and that the vehicle had been detained in order to investigate Abuu's complaint.

Abuu, in his defence, said that he did not cause the lorry to be detained at the police station.

“I caused the plaintiff (Mohammed) to be arrested in 2021 after he disappeared from work in 2017 and was taken to Changamwe police station. He had disappeared with my vehicle. I did not ask the police to detain his lorry. My vehicle has not been recovered,” said Abuu.

Abuu conceded that he had no evidence that Mohammed had been his employee and there was no written contract.

He also admitted that he had not reported the loss of his vehicle until 2021.

“I made a complaint against the plaintiff but not his vehicle. I saw the plaintiff being arrested. I did not see the vehicle being arrested. I did not arrest the vehicle,” said Abuu.

Abuu said that he had reported that he had seen Mohammed with a trailer and suspected it was his, and that it was important for the police to establish the true owner.

In re-examination, Abuu somewhat inconsistently said he had complained against the lorry and not Mohammed.

In his judgement absolving Abuu from liability, Justice Ngaah said that the law does not make a person liable for everything that follows from a report to the police merely because the report came first.

“The police have a statutory duty to receive and investigate complaints and to apprehend suspected offenders,” said Justice Ngaah. A member of the public who reports a suspected crime does not thereby take on responsibility for what the police independently decide to do. If it were otherwise, citizens would hesitate to report crime, for fear of being answerable in damages whenever their suspicion turned out to be unfounded,” said Justice Ngaah.

The judge noted that the decision to hold the vehicle, the length of the detention, the refusal to release it without a court order and the failure to keep it secure were all acts or omissions of the police, taken in the exercise of their own authority and while the vehicle was in their exclusive custody.