A Nairobi police officer is facing a Sh1 million damages bill after the High Court held him personally liable for detaining a businessman’s lorry for nearly five years without demonstrating lawful authority for its continued seizure.
The landmark judgment concerning personal accountability in public service comes amid a growing number of Kenyans taking individual officers in the security sector to court over alleged abuse of power, unlawful arrests, detention and other breaches of their constitutional rights.
Justice Patricia Nyaundi found that Constable Joel Nyaga personally seized the vehicle, took it to Capitol Hill Police Station and continued to justify its detention despite failing to establish the legal basis for holding it.
The officer has been ordered to pay the damages and legal costs personally, rather than have the State bear the financial liability.
The Milimani Law Courts in Nairobi.
Photo credit: Francis Nderitu | Nation Media Group
“I am persuaded that this is an appropriate instance in which to impose personal liability,” Justice Nyaundi said, relying on previous decisions concerning public officers held personally responsible for unconstitutional conduct.
The dispute dates back to November 17, 2021, when businessman Moses Macharia’s Isuzu FRR lorry was seized at Jolijo Enterprise’s godown while being loaded with alcoholic beverages.
Police described the drinks as unauthorised and took both the vehicle and the goods to Capitol Hill Police Station pending investigations.
Mr Macharia sued in May 2022 telling the court that he was the registered owner and had repeatedly failed to secure the vehicle’s release. He said he had acquired it through a loan and relied on it for his livelihood, losing business income throughout its detention. He argued that neither he nor the lorry had been charged in the criminal case arising from the incident, yet the vehicle remained at the police station.
The businessman claimed the detention violated his constitutional rights to property and fair administrative action and deprived him of his source of income. He named Constable Nyaga, the Director of Public Prosecutions and the Inspector-General of Police as respondents, with Jolijo Enterprise listed as an interested party.
Investigations subsequently led to a criminal case, in which Joseph Mwangi, Juliana Wairimu and Jolijo Enterprise were charged with offences under the Excise Duty Act. Neither Mr Macharia nor his lorry appeared in the charge sheet, a distinction that became central to his constitutional case
“The charge sheet forms part of the record before this court. Significantly, neither the petitioner nor the motor vehicle is named therein,” Justice Nyaundi said.
"Exhibit in criminal matter"
Constable Nyaga, who opposed the petition alongside the DPP, maintained that the seizure was lawful. He said the lorry had been intercepted while carrying unauthorised alcoholic beverages and was being retained as an exhibit in the criminal proceedings.
The officer also relied on Regulation 32(a)(i) of the Excise Duty (Excisable Goods Management System) Regulations, 2017, arguing that the Commissioner had authority to detain the vehicle pending investigations and enforcement processes.
But the respondents did not produce court proceedings showing that the criminal court had authorised the continued detention. They also failed to provide material establishing the statutory basis for retaining the vehicle.
“No proceedings from the criminal case were availed to demonstrate that the detention of the vehicle was sanctioned by the trial court. Equally, no material was placed before the Court to establish the statutory basis upon which the Commissioner continues to retain the vehicle,” the judge said.
She added that Mr Macharia’s claim that the vehicle was being unlawfully withheld remained substantially unanswered.
The respondents further argued that Mr Macharia should have raised the matter before the criminal trial court, pursued complaints through the Independent Policing Oversight Authority and identified his alleged constitutional violations with greater precision.
The judge rejected that defence, finding that the continued detention was unjustified and violated Mr Macharia’s rights to property and protection against arbitrary seizure under Articles 40 and 31 of the Constitution.
“The respondents have failed to demonstrate that their actions fall within any of the limitations contemplated under Article 24 of the Constitution,” she said.
Justice Nyaundi singled out Constable Nyaga because the officer had personally seized the lorry, arranged its booking at the police station and continued defending its detention.
The DPP and Inspector-General of Police were not ordered to compensate the businessman. The award was directed solely at Constable Nyaga, who was also ordered to meet the costs of the petition, with interest accruing from the judgment date until payment.
Mr Macharia, however, did not secure compensation for the business income he said he had lost. The court found that he had not proved the alleged loan or provided evidence establishing his lost earnings.
“The petitioner did not demonstrate that the lorry was on loan or that he lost earnings,” Justice Nyaundi said, adding that such losses could not be assumed.
The judgment adds to growing list of court decisions holding public officers personally accountable for constitutional violations committed in the exercise of their official duties.
In June 2026, the High Court in Mombasa ordered senior police officers, including the DCI officers and a police constable in Mtwapa, to pay Wilson Sadaka Sh500,000 for malicious arrest and detention over a land dispute that had already been resolved. Justice Jairus Ngaah found that the officers acted recklessly despite knowing they lacked the DPP's approval to charge him.
Earlier in March, the Court of Appeal upheld a finding of personal liability against former Rongai District Commissioner Joseph Motari Mosigisi over the malicious prosecution of six citizens who had been arrested in a dispute surrounding the burial of a body, leaving intact an award of Sh800,000 to each victim, totalling Sh4.8 million before interest and costs.
In December 2024, the High Court also held former Inspector-General of Police Japhet Koome personally responsible for his directive to police to deal firmly with striking doctors and his failure to prevent officers from disrupting their peaceful protests, ordering him to meet the costs of the case personally.
