[2024] KEHC 1215 (KLR)
The High Court found that the trial court's order releasing the subject motor vehicle to the 2nd respondent and requiring the applicant to deposit the logbook amounted to a premature determination of ownership, which was not appropriate at the interlocutory stage of a criminal trial. This constituted an irregularity...
Source-derived case information.
- Citation
- [2024] KEHC 1215 (KLR)
- Parties
- Applicant: Chirac Enterprises Limited; Respondent: Republic; Respondent: Jon Mbogua Njoroge; Respondent: Nancy Wambui Gachoki
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E026 of 2023
- Procedural Posture
- Criminal Revision / Ruling on Application to Set Aside Lower Court Order
- Outcome
- Application allowed; lower court's orders set aside; consent order on vehicle management reinstated; criminal trial to be expedited.
- Judges
- PM Mulwa
- Legal Topics
- Criminal Revision Jurisdiction, Interlocutory Orders, Ownership Disputes, Preservation of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chirac Enterprises Limited
Applicant
Republic
Respondent
Jon Mbogua Njoroge
Respondent
Nancy Wambui Gachoki
Respondent
Procedural Posture
Criminal Revision / Ruling on Application to Set Aside Lower Court Order
Legal Issues
- 1 Whether the trial court's order releasing the subject motor vehicle to the 2nd respondent and requiring the applicant to deposit the logbook amounted to a premature determination of ownership.
- 2 Whether there was an irregularity, illegality, or impropriety in the lower court's order warranting revision by the High Court.
Ratio Decidendi
The High Court found that the trial court's order releasing the subject motor vehicle to the 2nd respondent and requiring the applicant to deposit the logbook amounted to a premature determination of ownership, which was not appropriate at the interlocutory stage of a criminal trial. This constituted an irregularity with the potential to prejudice the fair conclusion of the criminal proceedings. The court emphasized that the management and handling of the subject vehicle should remain as per the consent order previously recorded, pending the outcome of the criminal trial. Accordingly, the impugned orders were set aside, and directions were given to expedite the hearing of the criminal case.
Court Disposition
Application allowed; lower court's orders set aside; consent order on vehicle management reinstated; criminal trial to be expedited.
Orders
- The orders by Hon. K. Sambu made on 14th February 2023, releasing motor vehicle KDH 208Q to Jon Mbogua Njoroge and requiring the applicant to deposit the vehicle’s logbook in court, are set aside.
- The management and/or handling of the subject vehicle will obtain as per the consent order recorded on 3rd October 2022, subject to any further variations as the court may deem fit in the interest of justice.
Full Case Text
Judgment text and source record
33 paragraphs
Chirac Enterprises Limited v Republic & 2 others (Criminal Revision E026 of 2023) [2024] KEHC 1215 (KLR) (9 February 2024) (Ruling)
Neutral citation: [2024] KEHC 1215 (KLR)
Republic of Kenya
In the High Court at Kiambu
Criminal Revision E026 of 2023
PM Mulwa, J
February 9, 2024
Between
Chirac Enterprises Limited
Applicant
and
Republic
1st Respondent
Jon Mbogua Njoroge
2nd Respondent
Nancy Wambui Gachoki
3rd Respondent
Ruling
1. This is a Criminal Revision application arising from proceedings in Kiambu Criminal Case No. E861 of 2022. In that case Nancy Wambui Gachoki was charged with the offence of stealing by agent contrary to Section 283 (b) of the Penal Code. It was alleged that the accused stole the complainant’s motor vehicle registration No. KDH 208Q make Mercedes Benz ML 350 valued at Kshs. 6 million which had been entrusted to her.
2. During the pendency of the trial in the lower court, and in order to preserve the subject motor vehicle, parties consented on how the motor vehicle was to be managed and/or handled.
3. Later, the 2nd respondent successfully applied to have the consent order reviewed/varied in his favour; that the subject vehicle be released to him and the log book be deposited in court. It is that order of variation which has prompted the revision application.
4. The application, which was made by way of a Notice of Motion dated 21st February, 2013, is predicated on Article 165 (6) & (7) of the Constitution and Sections 362 and 364 of the Criminal Procedure Code.
5. The applicant Chiral Enterprises Ltd, has sought to have the orders made by the trial court on 14th February 2023 stayed as the same have the effect of divesting the ownership of the motor vehicle from it and yet it is the registered owner thereof.
6. The application is supported by the supporting affidavit of Janeth Jeruto Cheum sworn on 21st February 2023 and which I have considered.
7. The application was served but no response was filed. Directions were given that parties file and exchange written submissions. Only the applicant filed written submissions dated 30/5/2023.
8. This Court’s revisionary jurisdiction is provided for in Article 165 of the Constitution as read with Sections 362 and 364 of the Criminal Procedure Code. The Court has power to give any order or direction so long as such order or direction is appropriate in the administration of justice.
9. The safeguards for revising or varying an order of the subordinate court by this court are well settled, that is, only where there is established an illegality, incorrectness, impropriety and irregularity.
10. Having perused the lower court record and having considered the application, the supporting affidavit and the filed submissions, the issue for determination is whether the court should set aside the order by the learned trial magistrate made on 14/2/2023.
11. Without going into the merits of the criminal trial in the lower court, this is a matter which basically revolves around disputed settlement of accounts in respect of the sale of the subject motor vehicle.
12. I have noted that the disputing parties, and rightly so, recorded a consent before the trial court on the management and handling of the subject motor vehicle during the pendency of the criminal case. This was to ensure that the subject motor vehicle remained in sound mechanical condition.
13. The fact that one party obtained orders to possess the subject motor vehicle and the applicant herein required to surrender the logbook thereof amounted to a premature determination of ownership of the subject motor vehicle. This in itself, and the ensuing order was an irregularity, which has the likelihood of stalling the conclusion of the criminal trial.
14. Consequently, I find the application dated 21st February 2023 has merit and allow the same in the following terms:a).The orders by Hon. K. Sambu made on 14th February 2023, releasing motor vehicle KDH 208Q to one Mbogua Njoroge and requiring the applicant herein to deposit the vehicle’s logbook in court, be and are hereby set aside.b).The management and/or handling of the subject vehicle will obtain as per the consent order recorded on 3rd October 2022, saving for any variations as the court may deem fit in the interest justice.c).The hearing of the criminal trial in Kiambu Cr. Case No. E861 of 2022 to be expedited. To this end, the original lower court record to be released and placed before the Chief Magistrate for further directions.
RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 9TH DAY OF FEBRUARY 2024. …………………..………………P. MULWAJUDGEIn the presence of:Mr. Gode for the ApplicantN/A for the RespondentsCourt Assistant: Carlos