Abdullahi v Republic & 2 others (Criminal Revision E078 of 2026) [2026] KEHC 11784 (KLR) (29 July 2026) (Ruling)

Abdullahi v Republic & 2 others (Criminal Revision E078 of 2026) [2026] KEHC 11784 (KLR) (29 July 2026) (Ruling) Neutral citation: [2026] KEHC 11784 (KLR) Republic of Kenya In the High Court at Kibera Criminal Revision E078 of 2026 DR Kavedza, J July 29, 2026 Between Adan Adaw Abdullahi Applicant and Republic 1st Respondent Director General Kenya Forest Service 2nd Respondent Director General Kenya Wildlife Service 3rd Respondent Ruling 1.Vide a Notice of Motion dated 23rd February 2026, the applicant seeks an order staying the execution of the trial court's order issued on 9th February 2026 directing that fifteen (15) tonnes of Aloe gum be surrendered to the Kenya Wildlife Service for destruction. The application is supported by the applicant's affidavit sworn on the same date. 2.The applicant deposes that on 15th October 2025, he, together with two co-accused persons, was charged with the offence of dealing in wildlife trophies contrary to section 95(b) as read with section 105 of the Wildlife Conservation and Management Act, 2013. He states that before the matter proceeded to hearing, the prosecution withdrew the charges under section 87(a) of the Criminal Procedure Code. 3.According to the applicant, the withdrawal followed the production of a letter from the second respondent and verification by the County Government of Marsabit confirming that he had obtained the requisite permits to harvest and transport the Aloe gum. He further avers that, notwithstanding the withdrawal of the criminal proceedings, the Kenya Wildlife Service retained the Aloe gum on the basis that the mandate to issue permits had been transferred from the Kenya Forest Service to the Kenya Wildlife Service pursuant to an internal circular. 4.The applicant contends that the Kenya Forest Service nevertheless issued him with the relevant permits and that he was unaware of any internal administrative arrangements between the two government agencies. He states that he paid the local community for the harvested Aloe gum and also paid the prescribed statutory fees before the permits were issued. 5.It is the applicant's case that the order directing the destruction of the Aloe gum, valued at approximately Kshs.15,000,000, is gravely prejudicial. He maintains that he should not bear the consequences of any administrative misunderstanding between government agencies and asserts that, had he been informed that the Kenya Wildlife Service was the proper licensing authority, he would have obtained the requisite permit. He therefore urges the Court to set aside the impugned order. 6.The application is opposed through a replying affidavit sworn by Reuben Musyoki, a Senior Investigation Officer attached to the Kenya Wildlife Service Headquarters and the investigating officer in Senior Principal Magistrate's Court Criminal Case No. E075 of 2026. The respondent deposes that the applicant and his co-accused were charged with the offence of dealing in wildlife trophies without the requisite permit and that, during the pendency of the proceedings, they initiated plea bargain negotiations by writing to the Office of the Director of Public Prosecutions requesting an out-of-court settlement. 7.It is deponed that, upon receipt of the request, the Office of the Director of Public Prosecutions sought the views of the Kenya Wildlife Service pursuant to the Plea-Bargaining Rules, 2018. The Kenya Wildlife Service agreed to the proposed settlement on condition that the fifteen (15) tonnes of Aloe gum be forfeited to the State for destruction, on the basis that the applicant had transported the consignment without an ownership permit issued by the Director General of the Kenya Wildlife Service. 8.The respondent further states that the trial court considered the parties' respective positions, allowed the withdrawal of the criminal proceedings and ordered the forfeiture and destruction of the exhibits. According to the respondent, the withdrawal was neither occasioned by lack of evidence nor by any confirmation from the Kenya Forest Service validating the applicant's permits. The respondent contends that the applicant was represented by counsel throughout the proceedings, participated in the plea bargain process and raised no objection to the conditions upon which the matter was withdrawn. It is therefore contended that the impugned order formed part of the agreed terms adopted by the trial court. 9.The respondent maintains that the permits relied upon by the applicant were merely movement permits and did not authorise ownership of, possession of, or dealing in wildlife trophies. It is also deposed that the applicant has never been issued with the requisite licence by the Kenya Wildlife Service and has not produced any such licence before either the trial court or this Court. 10.The respondent denies the existence of any conflict between the Kenya Wildlife Service and the Kenya Forest Service regarding their respective statutory mandates and contends that the applicant has failed to make full disclosure of the circumstances surrounding the withdrawal of the criminal proceedings and the subsequent orders of the trial court. 11.At the hearing of the application, learned counsel Mr Irungu appeared for the applicant and relied on the grounds set out in the application and supporting affidavit. Counsel submitted that the respondents had erroneously proceeded on the basis that the criminal proceedings were concluded through a plea bargain. According to counsel, no plea agreement existed and none satisfying the mandatory requirements of sections 137E and 137F of the Criminal Procedure Code had been executed or filed before the trial court. 12.Counsel further submitted that the criminal proceedings were withdrawn solely under section 87(a) of the Criminal Procedure Code following the applicant's request for review of the charges. He argued that the correspondence exchanged between the Office of the Director of Public Prosecutions and the Kenya Wildlife Service could not, in law, constitute a plea agreement. 13.Learned counsel further submitted that the applicant had lawfully obtained permits issued by the Kenya Forest Service after paying the prescribed fees and had relied upon those permits in harvesting and transporting the Aloe gum. He argued that any internal administrative circular transferring licensing functions from the Kenya Forest Service to the Kenya Wildlife Service had never been communicated to the applicant and ought not to be enforced against him. 14.Counsel also submitted that the Aloe gum was never formally produced as an exhibit before the trial court and that, in the absence of a valid plea agreement, the subordinate court lacked jurisdiction to order its forfeiture and destruction. He further argued that the applicant was denied an opportunity to be heard before the impugned order was made. 15.Learned counsel Ms Emmanuel appeared for the second respondent and opposed the application. She submitted that the Kenya Forest Service had not been a party to the criminal proceedings and only became aware of the present proceedings after being served by the Kenya Wildlife Service. Counsel maintained that the Kenya Forest Service derives its mandate strictly from statute and possesses no legal authority to issue permits relating to CITES - listed species. She further submitted that the movement permit relied upon by the applicant had been procured following the presentation of a letter which was subsequently found to be fraudulent. 16.Counsel further submitted that the circular issued by the Kenya Forest Service expressly clarified that licensing of CITES-listed wildlife trophies fell within the statutory mandate of the Kenya Wildlife Service. She maintained that the movement permit did not confer ownership rights or authorise the applicant to deal in Aloe gum and urged the Court to dismiss the application. 17.Learned prosecution counsel Ms Magoma, appearing for the third respondent, also opposed the application. She submitted that the applicant had failed to demonstrate any illegality, impropriety or material irregularity warranting the exercise of this Court's revisionary jurisdiction. Counsel maintained that the applicant initiated plea bargain negotiations through the Office of the Director of Public Prosecutions and that the Kenya Wildlife Service accepted the proposal on condition that the Aloe gum be forfeited for destruction. 18.Counsel further submitted that the applicant had never obtained the requisite permits from the Kenya Wildlife Service authorising him to possess, own or deal in Aloe gum. She maintained that the permits relied upon were merely movement permits issued by the Kenya Forest Service and that the applicant was represented throughout the proceedings and raised no objection before the trial court. She therefore urged the Court to dismiss the application. 19.In reply, Mr Irungu reiterated that the mandatory statutory procedure governing plea bargaining had not been complied with and that no valid plea agreement existed. He disputed the allegation that the applicant relied on forged documents, noting that no such allegation formed part of the criminal charge and no forged document had been produced before the Court. Counsel maintained that the prosecution withdrew the charges under section 87(a) of the Criminal Procedure Code and invited the Court to set aside the order directing the destruction of the Aloe gum. 20.I have carefully considered the application, the affidavits on record, the oral submissions and also the filed written submissions by Mr. Mutuma learned prosecution counsel and the applicable law. In my view, the issue falling for determination is whether the applicant has established any illegality, incorrectness, impropriety or material irregularity in the order of the subordinate court so as to warrant the exercise of this Court's revisionary jurisdiction under section 362 of the Criminal Procedure Code. 21.The jurisdiction of this Court in revision is conferred by section 362 of the Criminal Procedure Code, which provides:“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." 22.The foregoing jurisdiction is further anchored in Article 165(6) of the Constitution, which provides:“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." 23.It is therefore settled that the revisionary jurisdiction of this Court is supervisory in nature. It is neither an appeal nor an opportunity for the Court to substitute its own opinion for that of the subordinate court. The Court is only concerned with whether the impugned proceedings or order are tainted by illegality, incorrectness, impropriety or material irregularity. 24.In the present case, it is common ground that the applicant was charged with the offence of dealing in wildlife trophies arising from his possession and transportation of fifteen (15) tonnes of Aloe gum. It is equally not disputed that the criminal proceedings did not proceed to trial but were withdrawn under section 87(a) of the Criminal Procedure Code. 25.Section 87(a) of the Criminal Procedure Code provides:“In a trial before a subordinate court a public prosecutor may, with the consent of the court or on the instructions of the Director of Public Prosecutions, at any time before judgment is pronounced, withdraw from the prosecution of any person, and upon withdrawal —(a)if it is made before the accused person is called upon to make his defence, he shall be discharged, but discharge of an accused person shall not operate as a bar to subsequent proceedings against him on account of the same facts." 26.Under Article 157 of the Constitution and section 87(a) of the Criminal Procedure Code, the decision to institute, continue or withdraw criminal proceedings rests with the Director of Public Prosecutions, subject to the trial court’s approval where required by law. Once the subordinate court granted leave to withdraw the charges, the reasons for that decision became a matter of prosecutorial discretion. The issue before this Court is therefore not the propriety of the withdrawal, but whether the consequential orders of the trial court were lawful, proper and regular. The withdrawal itself is not subject to revision; only the legality of the impugned forfeiture order falls for determination. 27.In this application, parties advanced considerable argument on the existence and validity of the alleged plea bargain. However, that issue does not fall for determination. The sole question is the legality of the forfeiture order made following the withdrawal of the case. 28.Section 110 of the Wildlife Conservation and Management Act empowers a court, in appropriate circumstances, to order the forfeiture of wildlife trophies, wildlife products and related items. The record shows that the order directing the surrender and destruction of the alleged aloe gum was made after the withdrawal of the criminal proceedings. There was neither a conviction nor any evidential basis upon which the court could determine the status of the property. More significantly, nothing on the record demonstrates that the alleged aloe gum was ever produced and admitted as an exhibit. Without an exhibit properly before the court, there was no jurisdictional foundation for a lawful forfeiture order. 29.Once the proceedings were withdrawn under section 87(a) of the Criminal Procedure Code, the trial court’s jurisdiction was confined to such consequential orders as were authorised by law. It was not open to the court to inquire into the ownership, legality or disposal of property that had not been tendered in evidence. By purporting to determine the status of the alleged aloe gum, the trial court descended into the arena and determined matters that neither arose from the evidence nor fell for its determination. 30.The trial court further considered whether the applicant possessed a permit authorising possession or dealing in the alleged aloe gum. No evidence had been adduced, tested or subjected to cross-examination on the existence or validity of any such permit. Courts are confined to issues arising from the pleadings, the evidence and the applicable law, and may not speculate upon matters outside the record. This Court therefore finds that the trial court improperly ventured into extraneous issues beyond the scope of the proceedings. 31.In the premises, the impugned order was made in the absence of a conviction, without any exhibit having been produced, and after the criminal proceedings had been withdrawn. The subordinate court thereby exercised a jurisdiction not conferred by law. An order made without jurisdiction is a nullity and cannot stand. 32.Accordingly, the order of 9th February 2026, directing that the fifteen (15) tonnes of alleged aloe gum be surrendered to the Kenya Wildlife Service for destruction is hereby set aside. Orders accordingly. RULING DATED AND DELIVERED VIRTUALLY THIS 29TH DAY OF JULY 2026D. KAVEDZAJUDGEIn the presence of:Mr. Irungu for the ApplicantMr. Iganji for the 2nd Respondent & h/b for Itole for the 3rd RespondentKarimi Court Assistant