Row over impounded vehicles, Sh52m rent dispute

Mombasa county DCI boss Njiru is accused of disobeying DPP and impounding the vehicles last week

In Summary

• A row over impounded vehicles has drawn in top security officers, vehicle importers, owners and real estate dealers.

• The dispute involves Sh52 million in rent arrears, for which vehicles were to be auctioned. A report that they were stolen meant they had to be impounded, police said.

A  row over impounded vehicles has sucked in top security officers, vehicle importers, owners and real estate dealers in a dispute revolving around Sh52 million in unpaid rent arrears.

A move by auctioneers to conduct a public vehicle auction in 2018, in order to recover rent arrears from their client, has returned to haunt them and several others. At least three of the vehicles have been impounded from the purchasers on claims they were stolen.

Most of the purchasers are third parties who bought the vehicles from others and cannot be easily traced.

In the mix is Mombasa county DCI boss Njue Njiru, who is being accused of disobeying the orders of the DPP and impounding the vehicles last week.

Several letters have exchanged hands, trying to compel him to release the vehicles.

“Does the lawyer think we are doing all that without authority from the office of the DPP?” he said when asked if he was disobeying Noordin Haji to release the vehicles unconditionally and not to interfere with the case.

Makuri Auctioneers sold an unknown number of vehicles belonging to a foreign-owned company-Al-Riaz International Limited, which had failed to pay rent to the landlord, Ganjoni Property Limited, for three years amounting to Sh12.9 million.

They placed the number of vehicles at 13 vehicles, but owner Rehan Riaz Malik, who made a ‘theft’ report at the Central Police Station, listed 49 of them.

Malik, in OB/15/7/1/2018, had indicated that furniture, computers and cameras were stolen, as well as Sh10 million.

He had gone to court earlier to stop the auction but failed and made another attempt in January 29th last year. He obtained orders that the auction was unlawful and that the vehicles that had been sold should not be registered in favour of the purchasers.

The judge ordered, however,  that the tenant be reinstated but it could not happen as the landlord had already leased the same property to a company known as Fuji King Motors Limited.

The landlord was then authorised by a consent order recorded in Mombasa High Court two years later, to levy distress and auction vehicles of its former tenant.

According to court documents, the consent order covered the element of mesne (intermediate) profits at Sh900,000.00 per month. Thus,  Al Riaz International, in terms of that consent, still owed the landlord Sh32.4million.

Letters in our possession indicate that the auctioneers on January 14 this year, wrote to the DPP, threatening to report the matter to the Ethics and Anti-corruption Commission, the Independent Policing Oversight Authority, Inspector General of Police and the National Police Service. The letter was copied to the DCIO and CID.

It was in relation to a vehicle registration number KCL 656P which was among those auctioned but had been impounded from the owner.

“We sold the vehicle to a lady by the name of  Salome on January 20 2018, and [she] has since sold it to another party, Marieta Kambua from the auctioneers said.

Two days later, the DPP’s office asked the office of the DCIO to forward the file by close of business on  January 21 and release the vehicle.

“We see no reason why you are holding the vehicle which goes contrary to the Court of Appeal judgment and, hence, direct that the vehicle be released forthwith to the lawful owner,” prosecution counsel Masila E. Masila said.

In another letter from lawyer Kinyua Kamunde to Njue, dated April 5, he said the vehicles KCM 798E, Toyota Crown, and KCF 236W, Toyota Alphard, whose owner is Salim Sultan Moloo, and KCN 349E Toyota Crown, owned by Jaswinder Singh Oberoi, were among those  sold through public auction in January 2018.

“Your actions are in violation of property rights. If you take those vehicles by force, or you attempt to arrest any person in relation to those vehicles, you will be deemed to have stolen them. If you send armed police officers to recover the vehicles, they will be treated as armed robbers and you will be arrested, charged and prosecuted for robbery with violence. If the DPP will not charge you, we shall exercise rights to have you charged under private prosecution,”  Kamunde said in one of the letters.

The tenants had offices and a yard on the lease from Ganjoni Properties Limited running from 2010 to 2014, with the initial monthly rent being Sh245,000 but increased annually up to Sh360,000.

Al Riaz International Limited paid rent in full up to 2014, from documents available, with the landlord offering to extend the lease for another term of five years but at a higher monthly rent of Sh600,000.

“The tenant refused to pay higher rent and refused to vacate the property. The tenant filed a case at the High Court against the landlord and obtained an order of injunction in 2015, restraining the landlord from evicting the tenant from the property.  That injunction lapsed on 23.8.2016,”  Kamunde said.

Ganjoni properties then moved to court and filed an application for an order that the tenant, should deposit or pay rent arrears from January 2017 of Sh360,000.00 per month together with mesne profits at Sh900,000 per month. City hawkers to be licensed, pay fees under the bill

On December 14, 2016, the tenant through its advocate agreed by consent order recorded by Justice P.J.O Otieno that it will pay the mesne profits and rent arrears within 45 days and thereafter will also pay rent at Sh360,000.00 and mesne profits per month on or before the 5th of each month until the suit is over.

On February 28, 2017, the tenant filed an application asking to be allowed to pay only Sh100,000 as rent per month from January 2015 claiming that it had filed a reference to the business premises tribunal.

The following month, Ganjoni properties attached two vehicles through auctioneers, with the importer moving to court and obtaining an order that they should not be auctioned.

On July 12, 2018, the landlord moved to the Court of Appeal and a unanimous decision by Justices Alnashir Visram, Wanjiru Karanja and Martha Koome was issued. It set aside orders given by the High Court, which quashed the auction, and to stop the registration of transfers of those vehicles. 

“The orders of the High Court given on January 29th and February 1 last year are therefore invalid and null and void. To attempt to use the police to recover vehicles already auctioned amounts to unlawful conduct. Will the National Police Service refund the purchase price to the buyers? Will the police take the responsibility to pay the landlord the arrears of rent and mesne profits?" Kamunde asked.

In the suit filed by Al Riaz International in Mombasa in April 2018 a schedule of 46 vehicles alleged to be valued at almost Sh132 million has been listed.

The company is claiming about Sh2 billion in losses.

Also sucked in the controversy is Zameer Khan Mohamed Nizar, the operations manager at Sai Rock Beach Hotel and Spa, who was questioned and arrested by CID officers on September 26 last year, concerning the whereabouts of the vehicles.