civil

Understanding court process: When do you go to civil or criminal court?

A civil matter is prosecuted without involving the police. It is private in nature. A criminal matter is prosecuted by the state. But how do you tell when a matter should be reported to the police or if it is the civil type, to be prosecuted individually?

Here is how…

Wasike is the richest man in his small town. Being well off has not come easy, he always says. He has always worked hard to make his money, and in the process of working hard, he has also lost lots of money.

Last year, he bought a car from Wachira, his old college mate. Wachira has had his fair share of business tragedies. He now sells cars. It is his 9th business venture. This particular car, a Toyota Land Cruiser VX, was brought by Lagat, commonly known as mayor (because of his vast knowledge about everyone, everything and every place in their town). He wanted it sold, at a good price.

Wachira told Wasike about the car, and luckily, Wasike was interested. When it came to time for executing the sale agreement, it was established that the car did not actually belong to Lagat, but to Msupa, the village belle.

Wachira then contacted Msupa. He went to her house and asked her about the car. He established that it was indeed true the car was hers. She was tired of it, she said and that in any case, her Nairobi based boyfriend, Mheshimiwa, was going to buy her another powerful car. She had the car’s log book in her name and she confirmed that Lagat was just her agent. She further pointed out that the money should be given to Lagat, and he would deliver it to her. She then signed the transfer forms, gave Wachira a copy of her I.D and her PIN.

Wachira then sold the car to Wasike. Wasike upgraded it, and sold to Kubo. He made a little more profit and he even considered buying cars for subsequent disposal as another source of income.

Recently, while driving along Straight Road, near the traffic lights, Kubo was stopped by the traffic police asked to follow the mean looking police man to the station. On reaching the police station, he was told that the owner of the car had put a caveat on it and that the car was going to stay in police custody until the issues regarding its ownership are solved.

He explained to the police that he had bought the car from the owner, Wasike and that he had paid the full purchase price. It was then that he investigating officer told him that the owner of that car was a lady, Msupa and that she claims that she never received the purchase price for her vehicle. As such, whoever claimed to own the car presently did not have good title, Kubo was told.

But who is Msupa? Kubo wondered. On contacting Wasike, he established that Msupa had sold to him and that the purchase price was remitted to her through her agent, Lagat. At that point, it occurred to them both that Lagat had not remitted the purchase price of the vehicle to the owner, Msupa.

When Wachira the car dealer was contacted, he didn’t have any information about Lagat. They tried to reach Lagat on his known phone number but he was unreachable.

The car is still grounded at the police station. Msupa says, she just wants her money and no one will drive it until she received the purchase price for the car.

So, when Wasike referred Kubo to me for advice, we resolved to make a miscellaneous application to court for orders to the police to release the car. The grounds for seeking the orders were mostly revolving on the fact that Kubo’s title is unfettered, unencumbered because he did not have knowledge, and neither could he have had knowledge that Lagat never delivered the purchase price.

Court granted the orders but directed that pictures of the car be taken as evidence instead.

In resolving disputes, it is very important to ascertain the most favourable forum where the resolution process should take place. A good case which is filed in the wrong court will be dismissed for lack of jurisdiction. A good civil case which is filed as a criminal case will not do well in a criminal court. Neither will a good criminal case filed in a civil court do well.

One may wonder how a criminal case ends up in a civil court. But it’s possible. For example, whereas theft is a criminal offence, conversion is its civil equivalent. So, this means that for someone whose property has been stolen, he or she may report to the police or simply sue the offender in civil court. In this case though, the right forum would be to file a criminal case. Criminal cases usually begin by making a report to the police. The police investigate the reported crime and upon gathering conclusive evidence especially against the main suspect, the file is forward to the office of the Director of Public Prosecution for institution of a criminal case.

In facts like Kubo’s where the culprit is known, it may not be necessary to institute a criminal case. Simply go to a civil court and sue for the unremitted money!

It’s faster and it does not cause damage to other people. It is not frivolous like the criminal case which facilitates sentiments like Msupa’s of if I am not paid for my car, no one can drive it. Msupa forgets that it is unjust to punish those undeserving of punishment; that two wrongs do not make a right, and that she cannot cure her injustice by committing an injustice against someone else.

More so, a right forum for resolution of your dispute helps the justice system to work efficiently. The court’s time is very precious and should not be wasted on suits that would have been avoided. I am also convinced that our police officers would use their time better if they were not being bombarded with frivolous reports.

So, what must you do when you have a legal issue?

Do not act on a whim. There are people called lawyers. They go to school for very many years to learn the art (and science) of resolving disputes arising from any set of facts. Call a lawyer. Ask for help. Some platforms are free others are not.

For example, when you have a legal issue, you can get free legal consultation from us HERE. We also charge for consultation if you must have face time with one of our advocates. But, who doesn’t like free things? Ni ku enquire tu.

Get free consultation today. Eliminate the possibility of abusing the court process.

BY SAMALI BITALA

This article appears in our digital law newsletter, The Deuteronomy Vol 7, Issue 2 of July 14th, 2017

To receive The Deuteronomy in real time, click HERE

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