Benard Kipyegon Langat v State [2017] KEHC 7757 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAROK

HCCRA  NO.28 OF 2017

BENARD KIPYEGON  LANGAT..............APPELLANT

-VERSUS-

STATE...................................................RESPONDENT

RULING

1. The appellant has applied that the mobile phone and Sh.3,000/= that were recovered from him should be returned to him, because he says those are his properties.  The mobile phone was in the name of Hellen Chepngeno, which was produced as prosecution exhibit 2.  The Sh.3,000/= was put in evidence as prosecution exhibit 3 by No. 69000 P.C Silvanus Ndolo (PW3).

2. It appears   that the police recovered the money from the appellant believing that they were proceeds   of sale of the 31 sheep in respect of the offence of stealing with which he was convicted.  I confirmed his conviction in respect of stealing of the 31 sheep  on 2/2/2017. Based on the evidence of PW3, it was not possible to order restitution in favour of the appellant  or the complainant in terms of section 178 (1) of the Criminal Procedure Code   (Cap 75) Laws of Kenya.

Similarly  based on the evidence of PW3, it was  not possible to make a restitution order in favour of Hellen Chepngeno or the appellant in respect of the mobile phone.

3. It follows from the evidence of PW3 that these  are ownership disputes  which should be litigated and determined by a civil court.  It is that court which will decide whether the sh.3,000/= belongs to the appellant or to the complainant namely, Keronke  Ole Kishau.  It is also that court which will decide whether the mobile phone belongs to the appellant or Hellen Chepngeno .

4. It is the practice in this country to allow parties to  pursue the ownership of disputed properties  in a civil court.  This procedure was approved by the Court of  Appeal in Alinyo and Another vs R (1974) E.A. 544. That court held that where ownership of goods is  in dispute between the accused and the complainant,  the best course is to leave the issue of ownership to be decided by a civil court

5. The same procedure was followed in Sargent v Gautama (1968) E. A 338. In that case it was held that where parties have adverse claims to each other,  the proper procedure is to file an interpleader application under Order 34of the 2010  Civil Procedure Rules,  which are the enabling rules made pursuant to section 58 of Civil Procedure Act, (Cap 21 Laws of Kenya).

6. In the circumstances, the appellant, the complainant and Hellen Chepngeno are at liberty to have the issue of ownership of both the  sh.3, 000/= and the mobile phone determined by a civil court.  It is also  open to the office of the Director of Public Prosecutions to file an interpleader application in a civil court under Order 34 of the   2010 Civil Procedure Rules.

7. The appellant, the complainant and Hellen Chepngeno are at liberty to pursue the ownership of those prosecution exhibits in a civil court.  Finally, the office of the Director of Public Prosecutions is also at  liberty to file an interpleader application in terms of Order 34 of the 2010 Civil Procedure Rules.

8. In the light of the foregoing, I hereby dismiss the appellant’s application for restitution

Ruling delivered in open court this 22nd day  of February 2017 in the presence of  the Appellant and Ms Nyaroita for the Respondent.

J. M. BWONWONGA

JUDGE

22/2/2017