https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11198

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MARSABIT** **CRIMINAL APPEAL NO. E024 OF 2026** **HASSAN RACHO BORU…………….. ….……...APPELLANT/ APPLICANT** **VERSUS** **REPUBLIC.........................................................................RESPONDENT** **R U L I N G** **A. Introduction** 1.The Appellant was charged with the offence of being ***in possession of uncustomed goods contrary to section 200(d)(iii) as read with Section 210 (c) of the East African Community Customs Management Act 2004***. The particulars thereof were that on the 29th day of June 2026 at around 1200hrs at KBC road block Sagante location, Sagante jaldesa sub county, Marsabit County, he was found in possession of 3600 liters of cooking oil in 180 yellow jerricans (20 liters each) all valued at **Kshs.378,000/=** knowingly to be uncustomed goods, for which he was to pay tax of **Kshs.187,927/=**. 2. On count II, the appellant was charged with the offence of ***conveying uncustomed goods contrary to Section 199(b),(iii) of the East African Community Customs Management Act 2004***. The particulars were that on the 29th day of June 2026 at around 1200hrs at KBC road block Sagante location, Sagante jaldesa sub county, Marsabit County being the driver of motor vehicle registration number **KDP 587H Nissan Hiace** ***( Meiso Sacco)*** was found conveying 3600 liters of cooking oil in yellow jerrican (20 liters each) all valued at **Ksh.378,000/=** to be uncustomed goods, which was to be paid a tax of **Kshs.187,927/=.** 3. The appellant pleaded guilty and after mitigation was sentenced to pay a fine of **Kshs.300,000/=** or 12months imprisonment. The Motor vehicle registration Number ***KDP 587H*** **Nissan Hiace** ***( Meiso Sacco)( herein after referred to as the suit motor vehcle)*** and the uncustomed goods too was forfeited to the state. **B**. **Pleadings** 4. Being aggrieved by the said judgment of the trial court, the Appellant proceeded to file this Appeal and simultaneously filed his notice of motion application dated 8th July 2026 brought pursuant to ***Article 49(1)(h), 50(2)(q), 165(3)(a) and (e) of the Constitution of Kenya, Section 357(1) of the Criminal Procedure Code, Cap 75 laws of Kenya, Section 209(2)&(3), 214 of the East African Community Customs Management Act, 2004 (EACCMA)*** and all other enabling provision of law and sought for Orders that; a) ***Spent.*** ***b) That this Honourable court be pleased to issue and Ex parte order suspending the forfeiture order against the Motor vehicle KDP 587H issued by Hon Edward Oboge (SRM) on 3rd July 2026 in MCCR E151 of 2026 in order to preserve the appeal subject matter of this application and the appeal hearing pending the hearing and the determination of this Application.*** ***c) That this Honourable court be pleased to issue an Ex parte order suspending the forfeiture order against the goods being 3,600/= liters cooking oil in 180 jerricans of 20 liters each issued by Hon. Edward Oboge (SRM) on 3rd July 2026 in MCCR 151 of 2026 in order to preserve the appeal subject matter of this application and the appeal herein pending the hearing and the determination of this Application Inter parties.*** ***d) That this Honourbale court be pleased to admit the Appellant/Applicant to bail pending the hearing and determination of the Appeal herein, upon such reasonable terms as the court may deem fit and just.*** ***e) That this Honourable court be pleased to issue an order suspending the forfeiture against the Motor vehicle KDP 587H issued by Hon Edward Oboge (SRM) on 3rd July 2026 in MCCR E151 of 2026 in order to preserve the appeal subject matter of this application and the appeal herein pending the hearing and the determination of this Appeal.*** ***f) That this Honourable court be pleased to issue an order releasing the Motor vehicle KDP 587H to the owner OGOSO SIKO or his representative on such conditions as the court deems it fit pending the hearing and determination of the Appeal herein.*** ***g) That this Honourbale court be pleased to issues and Ex parte order suspending the forfeiture order against the goods being 3,600/= liters cooking oil in 180 jerricans of 20 liters each issued by Hon. Edward Oboge (SRM) on 3rd July 2026 in MCCR 151 of 2026 in order to preserve the appeal subject matter of this application and the appeal herein pending the hearing and the determination of the Appeal herein.*** 5. When the matter came up Ex parte before this court on 9th July 2026, the court granted prayers (2) and (3) in the interim and on 14th July 2026, when the matter came up for inter parties hearing the state (ODPP) conceded to prayers (4), (5) and (7) being granted pending hearing and determination of the Appeal. This court thereafter granted the Appellant bond of **Kshs.100,000/=** with one surety and/or in the alternative to pay cash bail of **Kshs.50,000/=**. Thus, the only issue pending for determination was prayer (6), where the appellant prays for release of the suit motor vehicle pending hearing and determination of this Appeal. Both parties made oral submissions thereto. 6. On this issue, the appellants urged the court to find that he had an arguable appeal with high chances of success as the procedure used to forfeit the said motor vehicle was unprocedural, and irregular as **no forfeiture notice** was issued thereby condemning the motor vehicle owner without him being accorded an opportunity to be heard, which was contrary to the principals of fair hearing as espoused under **Article 50(2) of the Constitution of Kenya, 2010**. The said court had also erred in imposing a sentence on the accused person, who pleaded guilty to a non-existent offence. He was charged under **Section 199(b), (iii) of the East African Community Customs Management Act, 2004 (EACCMA)**, which provision did not exist under the said Act. 7. The appellants counsel, therefore strongly urged the court to grant the said prayer for conditional release, since the said suit motor vehicle had a running bank loan being paid by its owner, from daily passenger fare proceeds and he stood to be greatly prejudiced should the said motor vehicle be detained for a long period, which would expose it to depreciation and/or it stood to be repossessed due to non-payment. Finally, he urged the court to note that no prejudice would be occasioned upon the respondent as the court could exercise its discretion to release the said motor vehicle on stringent conditions to ensure it operated under its under control pending quick disposal of the appeal. **C**. **The Response** 8. The respondent opposed this prayer and urged the court to note that the penalty for the admitted offence provided for forfeiture of the of the vessel used to convey the un-customs goods and thus the trial court could not be faulted for applying the said penalty. Further it was also to be noted that the said motor vehicle was registered under the names of **HIBA MOTORS LIMITED** and had been bought by **SIKO OGOSO**, who were not parties to this appeal. The appellant who was a driver/employee of the owner could therefore not guarantee safe custody should the said motor vehicle be released. They therefore urged the court to reject the prayer for conditional release of the suit motor vehicle pending hearing and determination of this Appeal **D. Determination** **9.** I have considered the application as well as the response by the Prosecution counsel and find that the only issue up for determination is whether Motor vehicle registration Number **KDP 587H Nissan Haice**, should be released to the appellant and/or its owner pending hearing and determination of this Appeal. 10. **Section 211 (1) of EACCMA** states that: - **“A vessel of less than two hundred and fifty tons register, and any vehicle, animal, or other thing, made use of in the importation, landing, removal, conveyance, exportation, or carriage coastwise, of any goods liable to forfeiture under this Act shall itself be liable to forfeiture.”** 11. **Section 214(3)(a) of the EACCMA** further states that**: -** **“Where anything liable to forfeiture under this Act has been seized, then** **if any person is being prosecuted for the offence by reason of which the thing was seized, the thing shall be detained until the determination of such prosecution and dealt with in accordance with section 215 (emphasis court)”;** 12**. Section 215 of the EACCMA** further stipulates that**:-** **1. Where any person is prosecuted for an offence under this Act and anything is liable to forfeiture by reason of the commission of the offence, then the conviction of the person of the offence shall, without further order, have effect as the condemnation of the thing.** **2. Where any person is prosecuted for an offence under this Act and anything is liable to forfeiture by reason of the commission of such offence, then, on the acquittal of such person (emphasis court), the court may order the thing either—** **(a) to be released to the person from whom it was seized or to the owner thereof (emphasis court); or** **(b) to be condemned.** 13. The Appellant was charged with and possession of uncustomed goods contrary to **Section 200 (d) (iii) as read with Section 210 (c)of EACCMA**., and conveying uncustomed goods contrary to **Section 199 (b), (iii) of EACCMA**. He pleaded guilty, was fined and the goods forfeited as provided for under the said Act. Unlike the criminal procedure code which is silent on release of exhibits during trial and/or pending appeal, **EACCMA, 2004 under section 215 (2) specifically provides that the said goods cannot be not be released until the appellant has been acquitted of the charges that had been preferred against him**. 14. Therefore, whereas the appellant has raised arguable grounds of appeal and shown genuine prejudice that he stands to suffer, while the suit motor vehicle is detained, this courts hands are tied provisions of **Section 214(3) of the EACCMA**. Which expressly provide that the detained goods are to remain detained until the conclusion of the case. This court fully associated itself with the holding in the case of **Crywan Enterprises Ltd vs Kenya Revenue Authority [2013] eKLR** where Majanja J found and held that forfeiture of goods and vessels under EACCMA was not *ultra vires* **Article 40(2) of the Constitution of Kenya**. **C. Disposition** 15.The upshot is that after considering the pleadings, submissions made and the law, I do hold that prayer (6) of the notice of motion Application dated 8th July 2026 lacks Merit and the same is Dismissed. 16**.** The Appeal be fast tracked and shall be heard on priority basis within the next 60 days**.** 17. It is hereby so ordered. Ruling **written, dated,** and **signed** at **Marsabit** this **20th** day of **JULY, 2026.** **FRANCIS RAYOLA OLEL** **JUDGE** **Delivered** on the **virtual platform, Teams** the **20th** day of **JULY, 2025.** **In the presence of;** Mr. Behailu ………………………….for Applicant Mr. Mburugu …………………….for Respondent Mr. Jarso……………………….Court Assistant