Elijah Nyakebondo Onsongo v Republic [2017] KEHC 7025 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAROK

CRIMINAL REVISION  NO. 1 OF 2017

ELIJAH NYAKEBONDO ONSONGO......APPLICANT

VERSUS

REPUBLIC............................................RESPONDENT

(From the original Order in the Chief Magistrate’s Court at Narok in Misc Cr Application  No 7 of 17, Elijah Nyakebondo Onsongo v. R)

RULING ON REVISION

1. This is an application to revise the order of Senior Principal Magistrate issued on 15/2/2017,  in which it was ordered as follows:

1. “That there be and is hereby issued an order that motor vehicle No. KCH 671A currently held at Narok Police Station be released to the Applicant/interested party who is the legal owner.

2. That the order be served upon the OCS Narok Police station for compliance.”

In response to the above order, the Eco-system Conservator on behalf of Kenya Forest Service found it difficult to implement the order for the following reasons:

1. “The Vehicle was arrested by their  Forest rangers and Administration Police officers from Narok South sub-County illegally transporting about 200 cedar posts from Mau Forest on 2nd February, 2017 at around 0100hours without a Forest Movement Permit from Kenya Forest service. The driver of the vehicle ran away.  Subsequently the officers drove the vehicle to Narok Police station and booked under OB. No. 02/3/2/2017.

2. As  per the Forest Act No.7  of 2005, we reported the seizure of the vehicle to the Law Court vide letter No.KFS/NKR/6/45 VOL.III/125 of 3rd February, 2017.

3. The vehicle is still parked at Narok Police Station fully loaded with the illegally acquired cedar posts.  The driver is yet to be arrested.  The court can view the vehicle and the cargo at any time.

4. The driver of the vehicle KCH 671A committed an offence against the Forest Act No. 7 of 2005 and therefore, releasing the same to him (cedar and vehicle) which are exhibits in this case amounts to awarding offenders and will ultimately encourage Forest crimes in Narok and Mau forest in general.

5. Mr. Elijah Nyakebondo Onsongo is a notorious forest poacher who has several cases of illegal removal of Forest produce from Mau forest.”

2.  It is for the foregoing reasons that the Eco-system Conservator has applied that the order of Senior Principal Magistrate to be revised to enable the case to fully go for trial.

3. In forwarding his letter to the Deputy Registrar, the Senior Principal Magistrate enclosed the letter of Kenya Forest Service and sought his order of 15/2/2017 to be revised so that the matter would be heard fully.  I have perused the proceedings in Miscellaneous Application No. 7/2017, in which the applicant (Elijah Nyakebondo Onsongo), was the Interested Party in those proceedings.  He is the one who had applied that the said vehicle be released to him on the basis that it was his own vehicle.  It seems from the proceedings of 15/2/2017 that the prosecutor, Mr. Mwangi did not object  to  the release of Motor Vehicle registration No. KCH 671A.  The applicant was represented by Mr. Ombati.  The court then proceeded to allow the application as prayed.

4. There is the supporting affidavit evidence from the applicant (interested party) that he had purchased the subject motor vehicle,  on hire purchase from a company in Mombasa, a matter in respect of which he attached a sale agreement dated 5/5/2016.  It is also clear from his evidence that the vehicle had not been transferred to him, because it was subject to hire purchase terms.  According to his further affidavit evidence, on 2/2/2017, his driver parked the subject motor vehicle at Nkoben area and upon his return he did not find it.  He then informed the applicant who eventually found the vehicle parked at Narok Police Station.  It is at that station that he was asked to produce the driver.  He has also deponed in that affidavit that he has not been able to trace the driver.  Following the advice of his advocate, which he believed, he will still be required to effect monthly payments, failing which the seller company will attach the subject motor vehicle.  In conclusion, he has deponed that following the advice of his advocate, which he also believed that since the driver has failed to avail himself, the subject motor vehicle should be released to him due to the fact that the said release will not prejudice the pending criminal trial proceedings against the driver.

5. In his forwarding letter to the Deputy Registrar, the Senior Principal Magistrate has drawn the attention to the self-explanatory letter from Kenya Forest Service.  In view of the applicant’s affidavit evidence and the submissions of both counsel in this court and in the court below, I find the following to be the issues for determination:

1. Whether or not the Senior Principal Magistrate had jurisdiction to  order for the release of the subject motor vehicle to the applicant.

2. Whether or not the release of the motor vehicle will prejudice the pending investigations and subsequent criminal proceedings against the driver.

3. First, a subordinate magisterial court including the court of Senior Principal Magistrate only has jurisdiction as may be conferred upon it by any statutory law including the Constitution.  In criminal matters as in the instant application such courts do not have inherent powers.  It is important to point out that such courts only have  inherent powers in civil matters in terms of section 3A of the Civil Procedure Act (Cap 21) Laws of Kenya, but not in criminal matters.  Furthermore, according to R. v. Cap Van International Ltd and Another (2004) 2 KLR  348a magistrate’s  court can only make an order of restituting property to a proved owner under the provisions of section 177 of the Criminal Procedure Code (Cap 75) Laws of Kenya, when the  goods have been produced in evidence as exhibits before the court.  A trial court is only entitled to order for restitution of property to the owner at the conclusion of a criminal trial.

4. A case in point is R. v. Everlyne Wamuyu Ngumo, Criminal Revision No. 138 of 2016 (High Court at Embu).  In that case, the magisterial order which ordered a motor vehicle, which had not been produced as an exhibit in court, released to the accused pending his trial was set aside.  In doing so the court pronounced itself as follows: “ The next issue to be considered is whether the order complained of should be revised or not.  I find that the trial court was not  entitled to direct that the motor vehicle be released to the respondent/accused in order as that court put it ‘to save it from the wear and tear due to immobilization of the engine.’  The  reason for this is that the motor vehicle had not been produced as an exhibit.  It is only when some property including a motor vehicle have been produced as an exhibit in court that that court is then seized with the jurisdiction to order for  its disposal.”

5. In the instant matter the case had not gone for trial,  because the driver of the subject motor vehicle,  who is the potential accused had not been traced. Furthermore, it is also clear that the subject motor vehicle,  which was found to be transporting about 200 cedar posts from Mau forest on 2/2/2017 did not have the permit  from Kenya Forest Service.  This is clear from the letter of Kenya Forest Service. Furthermore, the release of the subject motor vehicle  will  prejudice the investigations and subsequent prosecution of the driver.  Under section 55 (1) ( c)  of the Forest Act No. 7 of 2005 any vessels, vehicles, tools or implements used in the commission of the offence are liable to be forfeited to the Kenya Forest Service. I find that in view of these provisions the order of the magistrate’s court had the effect of prejudicing the investigations and the intended subsequent prosecution of the driver.

6. The next issue to be considered is whether the order complained of should be revised or not.  I find that the magisterial court was not entitled to direct that the subject motor vehicle be released to the respondent/accused. The reason for this is that the motor vehicle had not been produced as an exhibit in the magistrate’s court.  It is only when some property including a motor vehicle have been produced as an exhibit in court that that court is then seized with the jurisdiction to order for its disposal.  I find that the trial court did not have jurisdiction to order the release of the subject motor vehicle to the accused, given that the prosecution intended to use it in proving their case against the accused person.

In doing so, it acted in breach of the provisions of section 55 of the Forest Act No. 7 of 2005 and I further find  that the release order was prejudicial to the investigations.

7. In the light of the foregoing, it follows that the order complained of is irregular and is hereby set aside.  The subject motor vehicle will continue to be held in police custody pending the tracing, arrest and subsequent  prosecution of the driver of the  subject motor vehicle.

Ruling delivered in open court this  15th day of  March 2017,  in the presence of  Mr. Ombati for the Applicant and Mr. Mukofu for the Respondent.

J. M. BWONWONGA

JUDGE

15/03/2017