Nguru v Republic [2022] KEHC 10149 (KLR)

Nguru v Republic (Criminal Miscellaneous Application E002 of 2021) [2022] KEHC 10149 (KLR) (19 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10149 (KLR)

Republic of Kenya

In the High Court at Garissa

Criminal Miscellaneous Application E002 of 2021

A Ali-Aroni, J

May 19, 2022

Between

Peter Muriuki Nguru

Applicant

and

Republic

Respondent

Ruling

1. The Applicant’s case is that he is the owner of motor vehicle registration number KBZ 668T which vehicle was robbed in August 2015 and it is only recently that he learnt that the said vehicle had been intercepted by the Kenya Defence Forces on the November 17, 2015 along Elwak – Somalia border bearing a fake registration number KCA 872Z and transporting uncustomed goods.

2. The driver of the said motor vehicle was charged before the Senior Principal Magistrate at Mandera in Criminal Case No. 647 of 2015 with the offence of being in possession of uncustomed goods contrary to Section 200(D) (111) of the East African Community Customs Management Act, 2004 where the said driver pleaded guilty, was convicted and sentenced to pay a fine of Kshs.400,000/- and the vehicle registration No. KCA 872Z forfeited to the State.

3. The applicant’s concern is that he was unaware that his stollen vehicle was being used for an illegal activity. Secondly the respondent failed to bring to the attention of the trial court that the said vehicle had been stolen and bore fake registration number.

4. The applicant is before this court seeking a review of the trial court’s order of forfeiture of the vehicle to the State.

5. The application was opposed by the State by way of a preliminary objection on grounds that the application is unmerited and an abuse of the due process of the court; further the said application ought to be presented before the Commissioner as envisaged under Section 214(4) and (5) of the East African Community & Customs Act, 2004; the accused should be made a party and lastly the application is incompetent.

6. Since the applicant is seeking to review the orders of the trial court the matter squarely lies within the jurisdiction of the court as the commissioner does not have the powers to review or overturn a court order.

7. However, no reason has been given why the application was not made to the trial court in the first instance since the said court would be better placed based on the new information to reconsider its earlier order in the first instance.

8. It is to be noted that neither of the parties placed the trial court notes before this court for ease of reference.

9. In the interest of justice, the matter is transferred to the Mandera law court to be placed before the judicial officer who handled SPMC No. 647 of 2014 for consideration. Should he have left the station, as may be directed by the magistrate in charge of the station.

10. Mention as directed above on the 14th of June 2022.

DATED, DELIVERED AND SIGNED AT GARISSA THIS 19TH DAY OF MAY, 2022. ALI-ARONIJUDGE