Gitau v Republic [2023] KEHC 25346 (KLR)

Gitau v Republic (Revision Case E332 of 2023) [2023] KEHC 25346 (KLR) (16 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25346 (KLR)

Republic of Kenya

In the High Court at Nakuru

Revision Case E332 of 2023

HM Nyaga, J

November 16, 2023

Between

Bennah Nerima Gitau

Applicant

and

Republic

Respondent

Ruling

1. On May 15, 2023 David Mwangi and Samuel Karanu were charged with removing forest produce without authority contrary to section 64(1) (a) as read with section 64(2) and 68(1)(c) of the Forest Conservation and Management Act 2016 . Particulars being that on May 12, 2023 the accused persons were jointly found along Nakuru - Eldoret Highway at Sobea Area within Nakuru County removing forest produce namely firewood (grevillia and blue gum) valued at Ksh 38,000/= using a Lorry Registration No. KAC 852 W (Isuzu) cream in colour the property of Kenya Forest Service without authority from the Chief Conservators of Forests, Kenya Forest Service.

2. In their own plea of guilty they were convicted and sentenced to a fine of Ksh 20,000/= each in default six months’ imprisonment. In addition, the learned magistrate ordered the accused persons to appear in court on May 30, 2023 to show cause why Motor Vehicle KAZ 852 W should not be forfeited to the state.

3. The applicant herein who is the registered owner of the aforementioned Motor Vehicle filed an Affidavit in response to Notice to show cause on May 29, 2023, deponing inter alia that at no point did he ever consent or authorize the accused persons to use the vehicle for such transportation and therefore they were on frolic of their own; that continued detainment of his motor vehicle had deprived him of his source of income since the subject motor vehicle was the only tool of trade; that the accused persons were not his employees or associates or in enterprise participation with him ;that the Motor Vehicle Agreement he entered into with David Mwangi provided that the same shall automatically terminate in case of breach of terms or if the vehicle is seized or held by the police or court; that an order on forfeiture would be disproportionate to the nature and gravity of the offence in which the offenders were fined Ksh 20,000/= each and prayed that the subject Motor Vehicle be released to him.

4. The 1st accused person, David Mwangi, also filed his Affidavit dated May 29, 2023 wherein he concurred with the applicant’s sentiments that he had never consented or authorized them to use the motor vehicle for transportation of forest produce.

5. The prosecution did not file any response to the said Affidavits but orally submitted that the subject motor vehicle was involved in commission of an offence and in urging the court to forfeit the motor vehicle to the state, argued that section 68(1) (c) provides for forfeiture of objects that are involved in commission of the offence.

6. The trial court in its Ruling dated June 13, 2023 ordered the motor vehicle to be forfeited to the state on grounds that the applicant had failed to show proper cause to prevent the motor vehicle from being used as an instrument of crime and that the prosecution ably proved that the motor vehicle was an instrumentality of crime, thus, forfeitable.

7. Dissatisfied with the Ruling, the applicant filed the instant application for revision vide a letter dated September 25, 2023 seeking for orders: -a.That the honourable court be pleased to set aside the ruling and orders of hon. I. Orenge delivered in open court on June 13, 2023. b.That the honourable court considers the Affidavits sworn by the applicants and the 1st accused person as uncontroverted evidence and therefore unopposed.c.That the honourable court be pleased to set aside the ruling and order of hon. I. Orenge delivered in open court on the June 13, 2023 to forfeit the applicant’s motor vehicle registration No. KAC 052 W to the state.d.That the honourable court be pleased to substitute the ruling and order of hon. I. Orenge issued on the June 13, 2023 and allow the restoration and or release of the subject motor vehicle Reg No. KAC 052 W held at any by officers from Kenya Forest Service Pyrethrum Yard and or any authority, to the Applicant/Owner.

8. The Application was premised on grounds inter alia: -a.That the Applicant’s fundamental rights to property and privacy have been infringed by the Respondent and the subordinate court.b.That great prejudice will be occasioned to the Applicant if the order for forfeiture of the subject motor vehicle is not vacated.c.That the subordinate court failed to take into account the principle of proportionality in sentencing which is a splendid canon and most persuasive to sentencing, based on the notion that punishment should be equal to crime committed.d.That from the record there was no evidence that the persons convicted of the offence were employees or associates or in enterprise participation with the Applicant.e.That the lower court failed to take into account that the Applicant did not consent or give authority to the accused persons (the motor vehicle hirers herein) for the subject motor vehicle to be utilized for such transportation and thus were on their own frolic.f.That the provisions of the Kenya Forest Conservation and Management Act (KFCMA) did not oust the guarantees and protection of the right to property under article 40 of the Constitution and that combined effect of the forfeiture order and conviction of the accused person creates an unusual harsh result in the circumstances.g.That section 68 of the Act should be read together with section 3(4)(2) which provides that if the goods or things belong to some person in connection with which they may be forfeited and who neither knew nor had reason to believe that the same were being used in connection with that offence and exercised due diligence, it shall not order their forfeiture.h.That section 68(2) of KFCMA does not automatically allows forfeiture of the motor vehicle or vessel used in conveyance of the forest produce. The objective is the compensation for loss or damages caused to the forest as a result of the offence committed.i.That the state did not prove that the accused persons were the real owners of the said vehicle, for reason that any property vessel or motor vehicle owned by other third parties not convicted as part of the criminal case may not be part of the criminal forfeiture.j.That article 47(1) of the Fair Administrative Action Act is a fundamental notion of justice, that the guilty should be punished and the same law protects the innocent and law abiding citizens . It is therefore necessary to avoid prejudice to the administration of justice by punishing the innocent.k.That failure to also serve notice both under sec 68 of the KFCMA and section 389 A of the Criminal Procedure Code was offending a procedure which cannot be overlooked.l.That the forfeited motor vehicle is the only applicant’s tool of trade and source of income and he has now been rendered desperate.

9. The respondent did not file any response.

10. When the matter came up for hearing on October 17, 2023, the advocate for the applicant rehashed the grounds of the application.

11. The respondent submitted that section 389A of the said Code was complied with as the applicant was granted an opportunity to explain why the subject motor vehicle should not be forfeited. The respondent contended that the subordinate court was not satisfied with the applicant’s case and lawfully ordered forfeiture of the said motor vehicle.

12. In a brief rejoinder, the applicant’s counsel submitted that an innocent person should not be punished and reiterated that punishment should be proportionate to the offence. In buttressing her submissions, the applicant’s counsel referred this court to the case of Peter Igiria Nyambura vd DPP (2018) eKLR.

Analysis & Determination 13. The only issue for determination is whether the applicant's request for an order of revision is merited.

14. The applicant herein was not a party to the criminal proceedings. Therefore, he is not entitled to an appeal against the decision of the trial court. Section 347 of the Criminal Procedure Code provides as follows;Appeal to High Court(1)Save as is in this Part provided—(a)a person convicted on a trial held by a subordinate court of the first or second class may appeal to the High Court; and(b)Repealed by Act No. 5 of 2003, s. 93. (2)An appeal to the High Court may be on a matter of fact as well as on a matter of law.

15. As can be seen, the right of appeal is only available to a person convicted by the trial court. It follows therefore that the applicant can only appear before this court by another way other than an appeal.

16. The applicant has come to court by way of an application for revision vide the letter dated September 25, 2023. The powers of the court on revision is as provided under section 362 of the Criminal Procedure Code. It states as follows:“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.”

17. Section 367 of the said Code further provides that;“When a case is revised by the High Court it shall certify its decision or order to the court by which the sentence or order so revised was recorded or passed, and the court to which the decision or order is so certified shall thereupon make such orders as are conformable to the decision so certified, and, if necessary, the record shall be amended in accordance therewith.”

18. In view of the above, it is patent that the powers of revision under section 362 of the Criminal Procedure Code are invoked to enable this court satisfy itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any subordinate court.

19. Therefore, if the subordinate court’s decision is wanting in its correctness, legality or propriety or the proceedings are irregular, this court will no doubt step in and correct the same. If no such situation arises, then this court cannot purport to exercise those powers therein and revise a lawful, legal and regularly issued orders of the trial court.

20. Having stated the above, the next thing that I have to do is examine the court record to find out if the proceedings were regular, lawful and procedural.

21. Section 389A of the Criminal Procedure Code provides for the procedure to be followed before a forfeiture order is issued by the court. It provides that;“389A (1)Where, by or under any written law (other than section 29 of the Penal Code), any goods or things may be (but are not obliged to be) forfeited by a court, and that law does not provide the procedure by which forfeiture is to be effected, then, if it appears to the court that the goods or things should be forfeited, it shall cause to be served on the person believed to be their owner notice that it will, at a specified time and place, order the goods or things to be forfeited unless good cause to the contrary is shown; and, at that time and place of on any adjournment, the court may order the goods or things to be forfeited unless cause is shown by the owner or some person interested in the goods or things:Provided that, where the owner of the foods or things is not known or cannot be found, the notice shall be advertised in a suitable newspaper and in such other manner (if any) as court thinks fit.(2)If the court finds that the foods or things belong to some person who was innocent of the offence in connection with which they may or are to be forfeited and who neither know nor had reason to believe that the foods or things were being or were to be used in connection with that offence and exercised all reasonable diligence to prevent their being so use, it shall not order their forfeiture; and where it finds that such a person was partly interested in the goods and things it may order that they be forfeited and sold and that such person shall be paid a fair proportion of the proceeds of sale.”

22. From the court record, it is clear that the trial court complied with section 389A of the Code as it issued a notice to show cause why the subject motor vehicle should not be forfeited to the state, prior to ordering the said forfeiture. Therefore, the contention by the applicant that she was not served with notice is misplaced. In compliance thereto, she filed a response in her capacity as the registered owner of the motor vehicle, which the trial court considered before rendering its ruling.

23. I am therefore of the view that the trial court followed the procedure as set out. There is no illegality or other defect that would warrant a revision under section 362 of the Criminal Procedure Code. If the applicant is aggrieved by the outcome of the decision, then her remedy does not lie under that section.

24. Article 165(6) and (7) of the Constitution confers upon this Court supervisory jurisdiction over subordinate courts and empowers this Court to make any order to give any direction it considers appropriate to ensure fair administration of justice. The said provisions are couched in the following terms:“(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.(7)for the purpose of clause (6), the High Court may call for the record of any proceedings before any court or person, body of authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”

25. From my reading of the above the court’s powers therein are not as limited as under section 362 of the Criminal Procedure Code. The Article gives this court wide powers that are aimed at ensuring the fair administration of justice. I am of the opinion that the applicant ought to have sought refuge under this Article.

26. The said article must read together with article 47 of the Constitution, which provides for fair administrative action. It states that;47. Fair administrative action(1)Every person has the right to administrative action that is expeditious,efficient, lawful, reasonable and procedurally fair.(2)If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.(3)Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—(a)provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and(b)promote efficient administration.

27. In furtherance of the spirit of Article 47 of the Constitution, the Fair Administrative Action Act was enacted. The scope of the Act is as set out under section 4 thereof and it provides that;3. Application(1)This Act applies to all state and non-state agencies, including any person–(a)exercising administrative authority;(b)performing a judicial or quasi-judicial function under the Constitution or any written law; or(c)whose action, omission or decision affects the legal rights or interests of any person to whom such action, omission or decision relates.The Act then goes ahead to provide for the manner that the court may be moved. This is by way of judicial review.

28. The applicant’s main bone of contention is, in my view, two-fold- firstly that his evidence before the subordinate court was uncontroverted and secondly, that the trial magistrate failed to take into account the principle of proportionality in sentencing. This, in my view, is a matter to be determined by the court when appropriately moved. That way, the court can be called upon to examine the reasonableness of proportionality of the orders of the trial court in forfeiting the motor vehicle to the state.

29. In the circumstances, I find that the application for revision as drawn vide the letter dated September 25, 2023 as lacking in substance and form and it is dismissed.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 16TH DAY OF NOVEMBER, 2023. H. M. NYAGAJUDGEIn the presence of;C/A JenifferKihara for stateApplicant