[2016] KEHC 6547 (KLR)
The court found that the applicant and the co-owner, as registered owners of the vehicle, were not parties to the criminal proceedings in which the forfeiture order was made. The trial court failed to comply with Section 55(1)(b) and (c) of the Forest Act, which requires that owners be given an opportunity to show...
Source-derived case information.
- Citation
- [2016] KEHC 6547 (KLR)
- Parties
- Applicant: Ajerica Ndondo Mwenda; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 4 of 2016
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application to Set Aside Forfeiture Order
- Outcome
- Application allowed; forfeiture order set aside.
- Judges
- RPV Wendoh
- Legal Topics
- Forfeiture of Property, Right to Be Heard, Fair Trial, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ajerica Ndondo Mwenda
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application to Set Aside Forfeiture Order
Legal Issues
- 1 Whether the forfeiture order against the applicant's vehicle was lawful given the applicant was not a party to the criminal proceedings.
- 2 Whether the applicant was denied the right to be heard before the forfeiture order was made.
Ratio Decidendi
The court found that the applicant and the co-owner, as registered owners of the vehicle, were not parties to the criminal proceedings in which the forfeiture order was made. The trial court failed to comply with Section 55(1)(b) and (c) of the Forest Act, which requires that owners be given an opportunity to show cause why their property should not be forfeited. The applicant was condemned unheard, violating the right to a fair hearing. Consequently, the forfeiture order was set aside.
Court Disposition
Application allowed; forfeiture order set aside.
Orders
- The order of forfeiture made in CRC 116/2016 Isiolo on 15/2/2016 is set aside.
- The Police to hold the lorry Registration No. KCF 823Q until further orders of this court.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CRIMINAL MISC. CASE NO. 4 OF 2016
AJERICA NDONDO MWENDA ................…………. APPLICANT
VERSUS
REPUBLIC …….............................….....……......….. RESPONDENT
RULING
Ajerica Ndondo Mwenda filed this Miscellaneous Application dated 19/2/2016 seeking a variation or setting aside of the order issued by Hon. J. M. Irura, SRM Isiolo in CRM 116 of 2016 on 15/2/2016 in which she ordered the forfeiture of the motor vehicle Registration No. KCF 823Q Make Isuzu Lorry/Truck. The application is made by the owner of the said vehicle who denies having been party to CRC 116/2016 Isiolo, where four accused persons were charged with the offence of transporting Forest produce without a movement permit contrary to Section 52 (1) (a) as read with Section 52(2) of the Forest Act No. 7 of 2005. The four accused pleaded guilty to the offence; were convicted and sentenced.
The state did not oppose the application for reasons given in the written submissions filed in court and dated 22/2/2016.
I agree with the submissions by the State because from the attached documents, NN1, i.e Registration Certificate of the vehicle, the subject lorry KCF 823Q is registered in the joint names of the Co-operative Bank of Kenya Ltd and the applicant herein, Ajerica Ndondo. The two joint owners of the vehicle were not party to the proceeding before Isiolo Court.
I also agree that the trial court did not comply with Section 55 (1) (b)and (c) in ordering the forfeiture of the vehicle because since the owner of the vehicle was not charged, the court should have given them a hearing to show cause why the vehicle should not be forfeited. They were condemned unheard which is contrary to the tenets of fair hearing.
In the end, I grant the prayer setting aside the order of forfeiture made in CRC 116/2016 Isiolo on 15/2/2016. The Police to hold the lorry till further orders of this court.
DATED, SIGNED AND DELIVERED THIS 1ST DAY OF MARCH, 2016.
R.P.V. WENDOH
JUDGE
1/3/2016
PRESENT
Mr. Mulochi for State/Respondent
Mr. Nyauchi Holding Brief for Mr. Inoti for Applicant
Accused Present