[2017] KEHC 7757 (KLR)
The court found that, based on the evidence, it was not possible to order restitution of the mobile phone or the Sh.3,000 to either the appellant or the complainant under section 178(1) of the Criminal Procedure Code. The ownership of both items is disputed, and such disputes are best resolved by a civil court, not...
Source-derived case information.
- Citation
- [2017] KEHC 7757 (KLR)
- Parties
- Appellant: Benard Kipyegon Langat; Respondent: State
- Court
- High Court
- Court Station
- High Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 28 of 2017
- Procedural Posture
- Criminal Appeal / Ruling on Application for Restitution of Property
- Outcome
- application for restitution dismissed
- Legal Topics
- Restitution of Property, Ownership Disputes, Interpleader Procedure
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benard Kipyegon Langat
Appellant
State
Respondent
Procedural Posture
Criminal Appeal / Ruling on Application for Restitution of Property
Legal Issues
- 1 Whether the appellant is entitled to restitution of the mobile phone and Sh.3,000 recovered from him.
- 2 Whether the criminal court can determine ownership of the disputed property or if the matter should be referred to a civil court.
Ratio Decidendi
The court found that, based on the evidence, it was not possible to order restitution of the mobile phone or the Sh.3,000 to either the appellant or the complainant under section 178(1) of the Criminal Procedure Code. The ownership of both items is disputed, and such disputes are best resolved by a civil court, not in criminal proceedings. The court relied on established precedent and procedural rules, holding that the parties are at liberty to pursue their claims in a civil forum, including by way of interpleader applications. Accordingly, the appellant's application for restitution was dismissed.
Court Disposition
application for restitution dismissed
Orders
- The appellant's application for restitution of the mobile phone and Sh.3,000 is dismissed.
- The appellant, the complainant, and Hellen Chepngeno are at liberty to pursue ownership of the disputed items in a civil court.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAROK
HCCRA NO.28 OF 2017
BENARD KIPYEGON LANGAT..............APPELLANT
-VERSUS-
STATE...................................................RESPONDENT
RULING
1. The appellant has applied that the mobile phone and Sh.3,000/= that were recovered from him should be returned to him, because he says those are his properties. The mobile phone was in the name of Hellen Chepngeno, which was produced as prosecution exhibit 2. The Sh.3,000/= was put in evidence as prosecution exhibit 3 by No. 69000 P.C Silvanus Ndolo (PW3).
2. It appears that the police recovered the money from the appellant believing that they were proceeds of sale of the 31 sheep in respect of the offence of stealing with which he was convicted. I confirmed his conviction in respect of stealing of the 31 sheep on 2/2/2017. Based on the evidence of PW3, it was not possible to order restitution in favour of the appellant or the complainant in terms of section 178 (1) of the Criminal Procedure Code (Cap 75) Laws of Kenya.
Similarly based on the evidence of PW3, it was not possible to make a restitution order in favour of Hellen Chepngeno or the appellant in respect of the mobile phone.
3. It follows from the evidence of PW3 that these are ownership disputes which should be litigated and determined by a civil court. It is that court which will decide whether the sh.3,000/= belongs to the appellant or to the complainant namely, Keronke Ole Kishau. It is also that court which will decide whether the mobile phone belongs to the appellant or Hellen Chepngeno .
4. It is the practice in this country to allow parties to pursue the ownership of disputed properties in a civil court. This procedure was approved by the Court of Appeal in Alinyo and Another vs R (1974) E.A. 544. That court held that where ownership of goods is in dispute between the accused and the complainant, the best course is to leave the issue of ownership to be decided by a civil court
5. The same procedure was followed in Sargent v Gautama (1968) E. A 338. In that case it was held that where parties have adverse claims to each other, the proper procedure is to file an interpleader application under Order 34of the 2010 Civil Procedure Rules, which are the enabling rules made pursuant to section 58 of Civil Procedure Act, (Cap 21 Laws of Kenya).
6. In the circumstances, the appellant, the complainant and Hellen Chepngeno are at liberty to have the issue of ownership of both the sh.3, 000/= and the mobile phone determined by a civil court. It is also open to the office of the Director of Public Prosecutions to file an interpleader application in a civil court under Order 34 of the 2010 Civil Procedure Rules.
7. The appellant, the complainant and Hellen Chepngeno are at liberty to pursue the ownership of those prosecution exhibits in a civil court. Finally, the office of the Director of Public Prosecutions is also at liberty to file an interpleader application in terms of Order 34 of the 2010 Civil Procedure Rules.
8. In the light of the foregoing, I hereby dismiss the appellant’s application for restitution
Ruling delivered in open court this 22nd day of February 2017 in the presence of the Appellant and Ms Nyaroita for the Respondent.
J. M. BWONWONGA
JUDGE
22/2/2017