[2010] KEHC 4161 (KLR)
The court found that the applicant had demonstrated a likelihood of success on appeal and that substantial loss would result if the property (East African Sandalwood) was not preserved pending the outcome of the appeal. The court recognized the Attorney General's constitutional powers over criminal prosecutions and...
Source-derived case information.
- Citation
- [2010] KEHC 4161 (KLR)
- Parties
- Applicant: David Muigai Muceru; Respondent: Republic; Respondent: Kenya Revenue Authority; Respondent: Hon. Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 301 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Stay Pending Appeal
- Outcome
- stay granted; property to be preserved pending appeal
- Legal Topics
- Stay of Execution, Preservation of Property, Powers of Attorney General, Release of Property, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Muigai Muceru
Applicant
Republic
Respondent
Kenya Revenue Authority
Respondent
Hon. Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Stay Pending Appeal
Legal Issues
- 1 Whether a stay of execution should be granted pending the hearing and determination of the appeal.
- 2 Whether the property (East African Sandalwood) should be preserved pending appeal.
- 3 Whether the applicant will suffer substantial loss if the property is not preserved.
Ratio Decidendi
The court found that the applicant had demonstrated a likelihood of success on appeal and that substantial loss would result if the property (East African Sandalwood) was not preserved pending the outcome of the appeal. The court recognized the Attorney General's constitutional powers over criminal prosecutions and noted that the applicant's property had not been released despite the withdrawal of charges. The court held that preservation of the property was necessary to ensure the appeal was not rendered nugatory and that the respondents would not suffer prejudice from the grant of stay and preservation orders. Accordingly, the court granted a stay of execution and directed the Kenya...
Court Disposition
stay granted; property to be preserved pending appeal
Orders
- Stay of execution of orders issued in criminal case No. 45 of 2010 pending hearing and determination of the appeal.
- Kenya Forest Services to take care and protect the East African Sandalwood pending hearing and determination of the appeal.
Full Case Text
Judgment text and source record
24 paragraphs
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
MISC. CRIMINAL APPLICATION NO. 301 OF 2010
DAVID MUIGAI MUCERU…………………………….APPLICANT
VERSUS
REPUBLIC……………………………………..1ST RESPONDENT
KENYAREVENUE AUTHORITY…………….2ND RESPONDENT
HON. ATTORNEY GENERAL……………..INTERESTED PARTY
R U L I N G
Application by Chamber Summons dated 18/6/10 seeking prayer 3 stay of execution of orders issued in criminal case No. 45 of 2010 pending the hearing and determination of the appeal on the Trial Magistrate’s Ruling and this court do give direction on preservation of the property in issue being the East African Sandalwood pending the hearing and determination of the appeal.
The application is based on the following grounds:
(a)an appeal was filed against the ruling of the Trial Magistrate dated 9/6/2010
(b)appeal has high chances of success.
(c)that is in the interest of justice to sustain the subject property of the suit property pending the hearing of the appeal as destruction of the same will render the appeal nugatory.
(d)That the respondent shall not suffer any prejudice if orders sought are granted.
Also it is supported by affidavit of David Muigai Mucheru filed on 21/6/2010. He is the Applicant.
On 12/1/2010 he was charged before Makadara Chief Magistrate’s Court Case No. PCR 45 of 2010 and consequently he was discharged when the Attorney General entered a Nolle Prosqui.The charge in Case No. 45 of 2010 was withdrawn.The Applicant’s property was not released and he filed an application in Makadara Courtto obtain its release. However the Trial Magistrate at Makadara declined to release the same and it is against that decision that the Applicant herein has appealed.
It is my view that the appeal is likely to succeed.The powers of the Attorney General arises from the constitutional powers of Attorney General under Section 26 which authorizes the Attorney General to absolutely control the criminal prosecution.The property is valued at 30,000,000/=.
I am satisfied that the Applicant has suffered substantial loss.I grant stay pending the hearing and determination of the appeal No. Cr. A. No. 333 of 2010.
Regarding the hearing the appeal preservation of the suit property will be necessary. I order the Kenya Forest Services to take care and protect the same pending the hearing and determination of the appeal.Further order the Kenya Revenue Authority shall temporarily remove their stamps/seals pending the hearing and determination of the said appeal.
The costs of this application are reserved pending appeal but the Applicant shall deposit Shs. 50,000/= for costs of this application if required within 30 days of this orders accordingly.
Dated and delivered atNairobithis 18th day of October 2010.
J. N. KHAMINWA
JUDGE