Watu Credit Nominees Company Limited v Republic [2023] KEHC 24962 (KLR)

Watu Credit Nominees Company Limited v Republic (Miscellaneous Criminal Revision E026 of 2023) [2023] KEHC 24962 (KLR) (7 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24962 (KLR)

Republic of Kenya

In the High Court at Voi

Miscellaneous Criminal Revision E026 of 2023

GMA Dulu, J

November 7, 2023

Between

Watu Credit Nominees Company Limited

Applicant

and

Republic

Respondent

(From the forfeiture orders in Criminal Case E432 of 2021 on 15th February 2023 by Hon. D. M. Ndungi (PM) at Taveta Law Courts)

Ruling

1. This is an application dated 4th May 2023 brought by way of Notice of Motion under Section 362 and 389 of the Criminal Procedure Code (Cap.75).

2. The main prayer in the application is prayer 2 in the following terms:-2. That the court be pleased to exercise its discretion in revision of the orders of forfeiture made by the PM Ndungi and order the release of motor cycle registration number KMFN 688M to the applicant.

3. The application was filed with a supporting affidavit sworn by Nicholas Mirenda Mwalungo an Asset Risk Manager of the applicant, sworn on 4th May 2023 in which it was deponed that the motor cycle belonged to the applicant and was on loan/lease and that the applicant was not served with forfeiture notice before issuance of forfeiture orders.

4. The application is opposed by the Director of Public Prosecutions through Grounds of Opposition dated 16th June 2023 in which it was stated that the trial Magistrate exercised the court’s forfeiture powers in accordance with the law.

5. The application was canvassed through written submissions and I have perused and considered the submissions filed by Mwazighe & Company Advocates for the applicant and the submissions filed by the Director of Public Prosecutions.

6. Indeed, under Section 105 of the Wildlife Conservation and Management Act of 2013,and Section 389 (A) of the Criminal Procedure Code (Cap.75), the Magistrate’s court has powers to forfeit the motor cycle wherein the operators were convicted of wildlife related offences.

7. In coming to this court, the applicants have stated that they were not informed of the intended forfeiture as the motor cycle owners, which was on loan/lease to a third party. They filed documents evidencing records of ownership.

8. I have perused the proceedings. I note that on 25th January 2023 the trial court convicted the accused persons, and on 15th February 2023, the trial court noted that nobody had come to claim ownership of the motor cycle and forfeited the same.

9. However, although Section 389(A) of the Criminal Procedure Code (Cap.75) requires that notice of such intended forfeiture be served on the person believed to be the owner, the trial court record does not show that any effort was made to determine the apparent or real owner of the motor cycle, and to send notice of the intended forfeiture to the said apparent owner. That in my view was an error on the part of the trial court.

10. In my view therefore, since the statutory requirement of giving notice of intended forfeiture on the apparent owner of the motor cycle was not complied with, this court is entitle to exercise its revision powers under Section 382 of the Criminal Procedure Code (Cap.75).

11. I thus allow the application and quash the orders of forfeiture of the motor cycle herein. I grant prayer 2 of this application and order that the motor cycle registration number KMFN 688M be and is hereby released to the applicant herein.

DATED, SIGNED AND DELIVERED THIS 7TH DAY OF NOVEMBER 2023 AT VOI IN OPEN COURT.GEORGE DULUJUDGEIn the presence of:-Alfred – Court AssistantMr. Mwazighe – for applicantMr. Sirima for the State