Timon Ayieko Ochieng & Juma Kombo Done v Republic [2021] KEHC 1085 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CRIMINAL REVISION NO E001 OF 2020

TIMON AYIEKO OCHIENG.....1ST APPLICANT

JUMA KOMBO DONE..............2ND APPLICANT

-VERSUS-

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

R U L I N G

1. The Applicants Timon Ayieko Ochieng and Juma Kombo Done by an application dated 7th October 2020 that prayed that Motor Vehicle Registration Number KCX 348 C be released unto them as it belonged to 1st Applicant who had bought it on hire purchase and leased it to 2nd Applicant.  They also prayed that order of forfeiture made on 30th September 2020 by the trial court in Mombasa CMC CR. Case Number 1353 of 2020 be released.

2. The Application was supported by the grounds on the face of Notice of Motion and the Supporting Affidavit of 2nd Applicant together with annextures thereto.

3. The Respondent was served but they didn’t file a response.

4. This court went through the trial courts proceedings and established that the order of forfeiture was made without a notice to show cause being issued. The matter was referred to the trial court to undertake proper procedure but the trial magistrate declined to do so on allegations of lack of jurisdiction.

5. Failure by the trial court to act on the orders issued by the High Court prompted the Applicants to move this court to reconsider orders issued on 17th November 2020 and 26th February 2021.

6. Upto the time that the Applicant’s sought the courts intervention, a second time, the Respondent had not filed a response opposing or conceding to the application.

7. On 6th October 2021 Mr. Mulamula for Respondent was given 7 days to respond to the application but still on 13th October 2021 there was still no response.

8. On 22nd October 2021 Mr. Mulamula informed the court that the Investigating Officer had prepared a response which was to be filed by close of business and they were granted 3 days to file a response and submissions but as I write the ruling no such response or submissions are in the file.

9. In the circumstances that the Respondent have not filed a response opposing the application and in consideration of the affidavit by the 2nd Applicant and annextures thereto this court has no reason to disallow the applications.

10. The application dated 7th October 2020 is allowed. Motor vehicle Registration KCX 348 C Mazda Demio to be released to 1st Applicant forthwith.  Orders accordingly.

DATED, SIGNED AND DELIVERED ONLINE THROUGH MS. TEAMS ON THIS 9TH DAY OF DECEMBER, 2021

HON. LADY JUSTICE A. ONG’INJO

JUDGE

In the presence of:-

Mr. Otolo – Court Asst.

Mr. Mulamula for Respondent

Ms. Wambani Advocate hold brief for Mr. Mwangunya for Applicant

HON. LADY JUSTICE A. ONG’INJO

JUDGE