Nyoike v Republic (Criminal Miscellaneous Application E367 of 2024) [2026] KEHC 8879 (KLR) (22 June 2026) (Ruling)

Nyoike v Republic (Criminal Miscellaneous Application E367 of 2024) [2026] KEHC 8879 (KLR) (22 June 2026) (Ruling) Neutral citation: [2026] KEHC 8879 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Miscellaneous Application E367 of 2024 GL Nzioka, J June 22, 2026 Between Catherine Nyanguthii Nyoike Applicant and Republic Respondent (Being an application for revision arising from an order of forfeiture delivered vide Criminal Case No. E362 of 2024 at Kenol Law Court on 7th February 2024 by Honorable S. K. Nyaga, Senior Resident Magistrate) Ruling 1.By a notice of motion application dated 13th November 2024, brought under the provisions of; Order 51 Rule 1 and 2 of the Civil Procedure Rules 2010, Article 47, 49, 50 and 165 of the Constitution of Kenya 2010, Section 362, 364, 365 and 389 of the Criminal Procedure Code, (cap 75) Laws of Kenya and all other enabling provisions of the law, the applicant is seeking for the following orders.a.Spent;b.Spent;c.That this Honorable Court be pleased to review the orders made on 7th February 2024 and set the same aside with all consequential orders in Kenol Magistrate's Criminal Case No. E115 of 2024;d.That an order issue for Motorcycle Registration Number KMGL989H to be released to the applicant;e.That the cost of this application be in the course; andf.That the Honorable Court be pleased to grant any further orders deemed fit. 2.The application is supported by the grounds thereto and an affidavit sworn by the applicant. She avers that she is the registered owner of the subject motor cycle. That she carries on the business of hire of the said motor cycle at a fee of Kshs 300,00 to earn a living. 3.That on 12th January, 2024 she had let out the motor cycle to one Francis Muiruri Kiminja. That the hirer was arrested alongside one Kennedy Kinyanjui Ngayu and were both charged with the offence of stealing contrary to section 268 (1) as read with 275 of the Penal Code (cap 63) Laws of Kenya. That they stole pineapples the property of Del Monte Limited. 4.That upon taking a plea of guilty, the accused were convicted and sentenced accordingly. That in addition the court ordered that the subject motor cycle be forfeited to the State. That she had no reason to believe the hirer would use the motor cycle in the commission of offence. 5.The applicant argues that, the trial court did not comply with the provisions of Section 389 A of the Criminal Procedure Code, in that she was not accorded an opportunity to be heard before the forfeiture order was made. 6.The application was considered and the respondent accorded an opportunity to respondent to the application but so far there is no response filed. 7.Be that as it were, taking into account the revisionary power of the court, the court can still determine the subject application on the materials before the court as what is critical is the record of the trial court. 8.To revert back to this matter, it suffices to note that, the right to property is primarily governed by Article 40 of the Constitution of Kenya, 2010. It guarantees every person the right to acquire and own property individually or in association with others, anywhere in the country. Consequently, the State cannot arbitrarily seize or limit property rights. 9.It is in recognition of the afore provision that the provision of section 389 A come into pray. The subject provisions state that: -(1)Where, by or under any written law (other than section 29 of the Penal Code), any goods or things may be (but are not obliged to be) forfeited by a court, and that law does not provide the procedure by which forfeiture is to be effected, then, if it appears to the court that the goods or things should be forfeited, it shall cause to be served on the person believed to be their owner notice that it will, at a specified time and place, order the goods or things to be forfeited unless good cause to the contrary is shown; and, at that time and place or on any adjournment, the court may order the goods or things to be forfeited unless cause is shown by the owner or some person interested in the goods or things:Provided that, where the owner of the goods or things is not known or cannot be found, the notice shall be advertised in a suitable newspaper and in such other manner (if any) as the court thinks fit.(2)If the court finds that the goods or things belong to some person who was innocent of the offence in connexion with which they may or are to be forfeited and who neither knew nor had reason to believe that the goods or things were being or were to be used in connexion with that offence and exercised all reasonable diligence to prevent their being so used, it shall not order their forfeiture; and where it finds that such a person was partly interested in the goods and things it may order that they be forfeited and sold and that such person shall be paid a fair proportion of the proceeds of sale.” (Emphasis added) 10.Pursuant to the afore provisions, it follows that unless the person who is convicted is the owner of the subject property for forfeiture, any other person who lays claim to ownership thereof must be given the opportunity to be heard before such order is made. Consequently, it is mandatory that a notice to show cause be served upon the claimant of the subject property to adduce evidence to prove inter alia; the right of ownership to the subject property and/or the reason why the property should not be forfeited to the State. This is a basic requirement of the rules of natural justice. 11.The failure to accord the claimant the right to be heard contravenes and/or violates the provisions of; right to property, right to privacy, right to fair administrative action, and right to fair trial guaranteed in article 40, 31, 47 and 50 of the Constitution, respectively. 12.In regard to the provision of section 389A, the court in the case of; Peter Igiria Nyambura v Director of Public Prosecutions [2018] eKLR stated that: -“Section 389A provides for forfeiture determination. The elements of the section are that a court must not enter a judgment of forfeiture in a criminal proceeding unless the indictment or information contains notice to the owner of the vessel or vehicle. It is generally acceptable that the state will seek the forfeiture of the property as part of the sentence in accordance with the applicable Act.What do I see as the key elements in an application by the state seeking forfeiture in a criminal proceeding?(a)The state must establish the requisite nexus between the property and the offence.(b)The courts determination may be based on evidence already on record including any plea and or adduced evidence accepted by the court as relevant.(c)If the court seeks to forfeit a specific property a notice of the order must be sent to any person who reasonably might appear to be a potential claimant with standing to contest the forfeiture in the proceedings.(d)This is more so when in practical terms the seized property would be in the hand of an agent, employee, or servant of the person with proprietary interest or right.” 13.To revert to this matter, a perusal of the trial court record indicates that on 15th January 2024 the accused persons pleaded guilty to the charge of stealing and facts read out to them, whereby they confirmed the facts to be correct, were convicted and sentenced. 14.That, the prosecutor then made an oral application for forfeiture of the subject motorcycle alleged to be used in the commission of the offence. The trial court was further informed that the motorcycle did not have a number plate but investigations revealed that it belonged to the 1st accused. The trial court then ordered the unregistered motorcycle to be forfeited to the State 15.The trial court record does not reveal the nature of investigation carried out to establish that the subject motor cycle belonged to the 1st accused. It was an address from the bar. Furthermore, there is no indication on the trial court’s record that, the 1st accused was ever accorded an opportunity to address the court and/or confirm or deny whether the subject vehicle was his before forfeiture order. 16.In any even the provisions of Section 389A requires where the owner of the goods or things is not known or cannot be found, the notice shall be advertised in a suitable newspaper and in such other manner (if any) as the court thinks fit. That requirement was not complied with. Notably the forfeiture order was made even before the 14 days of the right of appeal had not expired. 17.The next issue to consider is whether this court has the power to revise the forfeiture order. In that regard, article 165 (6) & (7) of the Constitution of Kenya grants the High Court on supervisory jurisdiction over the subordinate courts and furtherance thereof section 362 as read with section 364 of the Criminal Procedure Code confers the upon the High Court with revisionary power to examine records of subordinate courts to correct manifest illegalities, improprieties, or procedural irregularities and to prevent miscarriages of justice. 18.Pursuant to the aforesaid, it is the finding of this court that, the failure to adhere to the provisions of section 389A of CPC by the trial resulting into denying the applicant the right to be heard and/or deprivation of her constitutional right to her property was in breach of procedure and consequently, irregular and improper. 19.As a result, the order of the trial court forfeiting the applicant’s subject motor cycle is accordingly quashed and/or set aside and ordered the said motor cycle shall be released to the applicant forthwith unless otherwise lawfully held. 20.It is so ordered DATED, DELIVERED AND SIGNED ON THIS 22ND DAY OF JUNE, 2026.GRACE L. NZIOKAJUDGEIn the presence of:Mr Gatundu for the ApplicantMr Mwangi for the StateMr Simon: Court Assistant