Everline Muge v Republic [2019] KEHC 8762 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CRIMINAL APPEAL CASE NO. 20 OF 2018

EVERLINE MUGE .......... APPELLANT

VERSUS

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

(An Appeal from the Ruling of the Resident Magistrate Honourable D. Milimu in Eldoret Chief Magistrate’s court Misc. Criminal Case No. 42 of 2018 dated 23rd March, 2018)

JUDGMENT

INTRODUCTION

The appellant was aggrieved by the ruling of Hon. D. Milimu delivered on 23rd March 2018.  The appellant had applied to have a motor vehicle registration No. KBP 201S held by the DCIO Eldoret released to her.  The court declined to release the vehicle as there was no proof of ownership and therefore it would not have been prudent to release the car without proper documentation.

APPELLANT’S CASE

The appellant submitted that she had lodged a complaint against Sammy Bitok Kitur and the motor vehicle was taken into custody of the DCIO – Eldoret.  She wanted the vehicle she had offered for investigation released to her due to failure of the investigation officer to charge the suspect.  The signatures which had been forged had been investigated and a report given to the investigation officer but they were not acted upon.  The magistrate failed to address the issue of delay and who had made the complaint.

The appellant further submitted that she should have been given the vehicle as she was the one who took it to the police.  The delay has denied her justice as requested by law.

PROSECUTION’S CASE

The prosecution did not file any submissions.

ISSUE FOR DETERMINATION: WHETHER THE RULING BY THE TRIAL COURT SHOULD BE VARIED

A perusal of the court record shows that there is an order by the CM for the detaining of the car and the same has not been set aside.  The appellant sold the car to one Anderson Kipruto Kipkoech as per the replying affidavit of Isaac Mukambi in the application in the lower court.

The appellant did not produce any proof of ownership and further, she provided proof that she had sold the vehicle to Anderson Kipruto Kipkoech therefore she seems to have made an application to have a vehicle that is not hers released.

There has been no proof of ownership produced by the appellant therefore no reasons to warrant the vehicle to be released to her.  The ownership of the vehicle is contested as there is an issue of forgery of the logbook.

In John Syimonjero v Directorate of Public Prosecution & Another (2018) eKLRthe court held:

The established practice in our courts is that a motor vehicle would normally be released to the owner on condition that it would be availed whenever required by the court.  Such practice which I entirely agree with in the present case, was succinctly stated by my senior sister Muchemi J in Republic V John Nganga Mbugua cited above in the following terms:-

“It is the practice in criminal cases that photographs will be taken by the scene of crime personnel of exhibits and scenes of crime which will be produced in evidence during the hearing.  It is possible to avail the exhibit itself, the photographs may also be produced.  If the vehicle is released after its photographs are taken, no miscarriage of justice will be occasioned during the trial.  It is not the duty of the complainant to take photographs of his vehicle and submit them to the police.  Instead, it is the duty of the investigating officer to have exhibits photographed and ensure the photographs are processed in the manner authorized by the relevant regulations.”

In the present case, however, I consider it important that the ownership of the motor vehicle, though not contested be verified as the registered owner is different from the applicant.

The distinction with the current case is that the ownership of the vehicle is disputed and therefore the DCIO would have to determine the issue of ownership of the vehicle before releasing it.  I find that the vehicle should be released to the person determined to be the owner after the DCIO has determined the same from conducting investigations and a search.  The exhibit can then be photographed and released, only to be produced at the request of the court.  If anyone is charged and the motor vehicle is an exhibit, it can be produced in court at the first instance, for the trial court to make the necessary orders.

S. M GITHINJI

JUDGE

DATED, SIGNEDandDELIVEREDatELDORETthis4thday of April,  2019.

In the presence of:-

1. Ms Omuya holding brief Mr. Melly for appellant

2. Mr. Mwaura for State

3. Mr. Mwelem - Court assistant