[2023] KEHC 26307 (KLR)

Director of Public Prosecution v Amwayi (Criminal Revision E093 of 2022) [2023] KEHC 26307 (KLR) (30 November 2023) (Ruling)

Neutral citation: [2023] KEHC 26307 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Revision E093 of 2022

SC Chirchir, J

November 30, 2023

Between

Director of Public Prosecution

Applicant

and

Dennis Amwayi

Respondent

Ruling

1. The Application before me seeks for revision of the Ruling delivered by the lower court on 30th November 2022, in Criminal case Number E1163 of 2022 at the chief Magistrate’s court at Kakamega

2. Following an Application by the Accused in the said case for the release of his Motorbike which had been kept as an Exhibit, the court allowed the Application and made the following orders:a).That the exhibit herein being motorcycle registration number KMGB 246X be taken photos by the scene of crime officers and the photos be placed in the court file.b).That the said motorcycle registration number KMGB 246X be availed to court as and when it will be required by this court.c).That the motorcycle registration number KMGB 246X be released to the accused person upon such photos being taken.

3. The application is by way of a letter dated 1st November 2022 addressed to the court. It invokes the provisions of sections 362 and 364 of the criminal procedure code and supervisory powers of this court under Article 165 of the constitution.

4. The accused is charged with removing forest produce, namely four bags of charcoal made from assorted indigenous trees from secheno in kakamega forest within kakamega county on 29th September 2022, without a licence. It is alleged That he was using the subject motor bike to carry away the said produce.

5. On 30th November 2022, the counsel for the accused applied for the release of the motor bike. The prosecution objected to the release on grounds That the exhibit was yet to be produced in court and That the accused did not provide any documents to prove ownership of the motorcycle.

6. The trial Magistrate ruled in favour of the accused and made the orders referred to in paragraph 2 hereof. The prosecution was aggrieved by the ruling and sought for this Revision.

7. The prosecution has urged the court to order That the motor cycle be detained until the finalization of the matter. The Application is made on grounds That the order is improper and likely to compromise proceedings. Further, the prosecution argues, the accused has no proof of ownership.

Determination 8. The issue for determination by this court is whether the order of release by the trial court was irregular, illegal or improper.

9. The high court supervisory jurisdiction of the subordinate courts is set out under Article 165 (6) and (7) of the Constitution and section 362 of the Criminal procedure code.

10. Article 165 (6) provides as follows:The high court has supervisory jurisdiction over the subordinate courts and over any person, or authority exercising a judicial or quasi -judicial function, but not over a superior court.(7)For purposes of Clause (6) the high court may call for the record of any proceedings before any court or person, body or authority, referred to on Clause (6) and may have any order or give any direction it considers appropriate to ensure the fair administration of justice.”

11. Section 362 of the Criminal procedure code states: “The high court may call for and examine the record of any criminal proceedings before any subordinate court, for the purpose of satisfying itself as to the correctness, legality, or propriety of any such findings, sentence, order recorded or passed as to the regularity of any proceedings of any such subordinate court.

12. On the release of the Exhibits held by the courts ,section 177 (a) of the Criminal Procedure Code provides as follows:- “Where, upon apprehension of a person charged with an offence, any property is taken from him, the court before which he is charged may order That the property or a part thereof be restored to the person who appears to the court to be entitled thereto, and, if he be the person charged, That it be restored either to him or to such other person as he may direct.”

13. A perusal of the lower court proceedings show That the Accused told the court That he was still servicing the loan used to purchase the motorbike and he needed it released to enable him continue with the repayment.

14. The prosecution has contended That the release may prejudice its case w but it has not made any attempt to point out where the prejudice is.

15. The other reason given is That the Accused has not demonstrated That he was the owner of the motorbike. However, the motorbike was found with him, and unless proven otherwise, he is presumed to be the owner. The wording of section 177 (a) of the criminal procedure code on the person to be released is “ restored to the person who appears to the court to be entitled thereto, and, if he be the person charged, That it be restored either to him or to such other person as he may direct.”

16. It is therefore left to the trial court to make an assessment on whether the person asking for release of the Exhibit is the appropriate one. I do not therefore see where the trial court erred in this regard so as to interfere with the discretion bestowed upon it.

17. Further in the case of Republic v John Nganga Mbugua [2014] eKLR the court stated That; “It does not make any sense to keep the vehicle of the applicant which is an income generating asset in police custody until the pending criminal case is finalized. The prosecution has not attempted to demonstrate to this court why the vehicle should continue to be detained at the police station while the applicant is ready and willing to produce it during hearings.”

18. Also in the case of Jeremiah Kobia Munoro v Republic [2021] eKLR, the court held That: - “… a motor vehicle parked in an open yard and unprotected from the hazards of the weather is prone to serious damage and depreciation. It will not serve the interest of justice to, eventually release a “shell” to the rightful owner at the end of trial. It may even expose the state to litigation, if at the end of the trial, there is no proof of That the motor vehicle was bought with proceeds of crime or no value is given to the complainant, if it is found to have been bought as such and yet it has completely depreciated in value.”

19. In short, the Applicant has demonstrated any incorrectness, illegality or the impropriety of the trial court’s orders so to warrant any revision by this court.

20. In conclusion, it is my finding That the Application is unwarranted. It is hereby dismissed.

DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 30TH DAY OF NOVEMBER, 2023S. CHIRCHIR.JUDGE.In the presence of:E. Zalo- Court Assistant.No appearance by the Applicant.Ms . Osoro for the State