https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12086

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAROK** **CRIMINAL APPEAL NO. E008 OF 2026** **(CORAM: HON. CHARLES M. KARIUKI – J)** (Being an appeal from the Ruling delivered on 2nd April 2026 by Hon. Wa Kugwa Wahinya (Senior Resident Magistrate) in Narok MCCR No. E264 of 2026) **ENOCK KIMUTAI NGENO………..……………………………………….…. APPELLANT** **-VERSUS-** **REPUBLIC...........................................................................................................RESPONDENT** **JUDGMENT** **30/07/2026** 1. **INTRODUCTION AND BACKGROUND** 2. This appeal challenges the ruling of the Senior Resident Magistrate delivered on 2nd April 2026 in Narok MCCR No. E264 of 2026 ordering the forfeiture to the State of Motor Vehicle Registration Number KDM 582X. The appeal concerns the propriety of forfeiting a motor vehicle belonging to a third party who was not charged with any offence but whose vehicle was used by the convicted accused person in the commission of an offence under the Forest (Charcoal) Rules, 2009. 3. The accused person, Timothy Langat, was charged with the offence of transporting charcoal without a permit contrary to Rule 14(1)(a) as read with Rule 20 of the Forest (Charcoal) Rules, 2009. The particulars of the charge were that on 26th February 2026 at about 8.52 p.m. at Osenetoi Area, Mara Sublocation, Narok County, he was found transporting fourteen (14) bags of charcoal in Motor Vehicle Registration Number KDM 582X without a permit issued by the Chief Conservator of Forests. 4. The accused pleaded guilty. Upon conviction on his own plea, he was sentenced to pay a fine of Kshs.10,000/= in default to serve two months' imprisonment. The charcoal was forfeited to the Kenya Forest Service. The trial court further issued a Notice to Show Cause requiring the registered owner of Motor Vehicle Registration Number KDM 582X to explain why the vehicle should not be forfeited to the State. 5. On 17th March 2026, the Appellant appeared before the trial court in response to the Notice to Show Cause. He produced the certificate of registration proving ownership of the motor vehicle and informed the court that he had instructed the accused person to ferry shop goods but that the accused had, without his authority or knowledge, used the vehicle to transport charcoal. 6. In a ruling delivered on 2nd April 2026, the learned trial magistrate found that although ownership had been proved, the Appellant had failed to demonstrate the efforts he had made to prevent or monitor the driver's activities and consequently ordered the motor vehicle forfeited to the State. 7. Aggrieved by that decision, the Appellant lodged the present appeal. At the hearing of the appeal, learned counsel for the Appellant informed the Court that the State had conceded both the appeal and the application for release of the motor vehicle. Pending the determination of the appeal, this Court stayed the forfeiture order and directed that the motor vehicle should not be disposed of. 8. **MEMORANDUM OF APPEAL** 9. The Appellant, by the Memorandum of Appeal dated 13th April 2026, challenges the ruling of the Senior Resident Magistrate delivered on 2nd April 2026 in Narok Criminal Case No. E264 of 2026, which ordered the forfeiture of motor vehicle registration number KDM 582X to the State. The appeal raises the following grounds: 10. *THAT the learned Honourable Magistrate erred in Law for making premature orders for forfeiture of the said motor vehicle, yet the appellant was neither the accused nor committed the offence and never authorized for the offence to be committed.* 11. *THAT the learned Honourable Magistrate erred in both Law and Fact by ordering for the forfeiture of the Motor Vehicle registration number KDM 582X, which belongs to the appellant who was not in any way a party to the charges.* 12. *THAT the learned Honourable Magistrate erred in law and fact by failing to inquire into the ownership of the subject ownership or the subject matter making the order of forfeiture.* 13. *THAT the learned Honourable Magistrate erred in Law and fact by forfeiting the motor vehicle registration number KDM 582X, yet the prosecution in the matter never opposed the release to the appellant* 14. *THAT the learned Honourable Magistrate erred in law by disregarding the submission of the prosecution, who never opposed the application to release the motor vehicle to the appellant.* 15. *THAT the learned Honourable Magistrate erred in law and in fact by not* 16. *considering the evidence of the appellant.* 17. Consequently, the Appellant prays that the appeal be allowed and the order forfeiting motor vehicle registration number KDM 582X to the State be quashed. 18. **SUBMISSIONS** 19. **Appellant’s Submissions** 20. The Appellant submitted that the appeal turns on whether the trial magistrate erred in law and fact by ordering the forfeiture of motor vehicle registration number KDM 582X to the State despite the Appellant having demonstrated that he neither participated in, consented to, nor had knowledge of the commission of the offence. Counsel argued that criminal liability is personal and that the evidence before the trial court established that the Appellant was neither the driver nor an occupant of the motor vehicle when it was intercepted and was not found in possession of the charcoal. It was further submitted that Rule 20 of the Forest (Charcoal) Rules, 2009 does not authorize the automatic forfeiture of property belonging to an innocent third party and that forfeiture is only justifiable where the owner is complicit in, or negligent regarding, the unlawful use of the property. Counsel maintained that the Appellant had given uncontroverted evidence that the vehicle was used without his knowledge, consent, or authority, rendering the forfeiture unjust. 21. The Appellant further contended that the forfeiture order was disproportionate and violated his constitutional right to property under Article 40 of the Constitution. It was argued that although the State has a legitimate mandate to enforce environmental protection laws under the Forest Conservation and Management Act and the Forest (Charcoal) Rules, 2009, such enforcement must be balanced against constitutional protections afforded to innocent property owners. Reliance was placed on **Robert Wachira v Republic [2016] KEHC 2777 (KLR**), where the High Court held that the Forest (Charcoal) Rules, 2009 did not provide a legal basis for the forfeiture of a motor vehicle and charcoal to the State and consequently set aside the forfeiture order. On the strength of that authority, the Appellant urged the Court to allow the appeal, quash the forfeiture order, and direct the immediate release of motor vehicle registration number KDM 582X to the Appellant. 22. **ISSUES FOR DETERMINATION** 23. Having considered the record of appeal, the memorandum of appeal and the submissions made, the following issues arise for determination: 24. **Whether the learned trial magistrate had legal authority to order forfeiture of Motor Vehicle Registration Number KDM 582X.** 25. **Whether the forfeiture order violated the Appellant's constitutional and proprietary rights.** 26. **What orders should issue.** 27. **ANALYSIS AND DETERMINATION** **Duty of a First Appellate Court** 1. This being a first appeal, this Court is obligated to re-evaluate and re-analyse the evidence tendered before the trial court and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. 2. In **Okeno v Republic [1972] EA 32,** the East African Court of Appeal stated: *"An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the appellate court's own decision on the evidence."* 1. Similarly, in **Kiilu & Another v Republic [2005] 1 KLR 174,** the Court of Appeal reiterated that a first appellate court must reconsider the evidence, evaluate it itself, and draw its own conclusions. 2. **Whether the trial court had legal authority to order forfeiture** 3. The Appellant was never charged with any offence. The only person charged and convicted was Timothy Langat, who admitted transporting charcoal without a permit. 4. Upon being served with the Notice to Show Cause, the Appellant appeared before the trial court and produced documentary proof that he was the registered owner of Motor Vehicle Registration Number KDM 582X. The trial court expressly accepted that evidence and found that ownership had been established. 5. The learned magistrate nevertheless ordered forfeiture on the basis that the Appellant had failed to explain what measures he had taken to monitor the activities of the driver. With respect, that reasoning lacks legal foundation. 6. Rule 20 of the Forest (Charcoal) Rules, 2009 creates offences and prescribes penalties for contravention of the Rules. It provides for fines and imprisonment. It does not expressly authorize the forfeiture of motor vehicles used in the commission of the offence. 7. A court exercising criminal jurisdiction cannot impose a punishment or deprivation of property unless expressly authorized by statute. The principle of legality requires that penal sanctions be founded upon clear legislative authority. Courts cannot enlarge penal provisions through implication. See **Republic v Kenya Revenue Authority Ex Parte Yaya Towers Ltd [2008] eKLR**, where the High Court emphasized that statutory powers affecting proprietary rights must be exercised strictly within the law. 8. This precise issue was considered by the High Court in **Robert Wachira v Republic [2016] KEHC 2777 (KLR)** where Okwany J held: *"In view of the provisions of the above Regulations, I find that there was no legal basis allowing the trial magistrate to order for the forfeiture of the bags of charcoal or the motor vehicle in question... I hereby quash the order for forfeiture."* 1. I respectfully agree with that reasoning. The Forest (Charcoal) Rules, 2009 do not confer jurisdiction upon a trial court to order forfeiture of a motor vehicle merely because it was used in transporting charcoal. 2. The learned trial magistrate therefore exercised a jurisdiction that the applicable law did not confer. 3. **Whether the forfeiture violated the Appellant's constitutional rights** 4. Article 40(1) of the Constitution guarantees every person the right to acquire and own property of any description in any part of Kenya. 5. Although Article 40 does not protect property unlawfully acquired, there was no allegation or evidence that the Appellant acquired the motor vehicle unlawfully. 6. Equally significant is that there was no evidence before the trial court demonstrating that the Appellant participated in the offence, authorized it, or knowingly permitted his vehicle to be used for illegal transportation of charcoal. 7. Criminal liability is personal. A person cannot be deprived of his property merely because another individual misused it in committing an offence unless the applicable law expressly provides for such deprivation and the statutory conditions have been satisfied. 8. The trial magistrate shifted the burden onto the Appellant by requiring him to demonstrate what steps he had taken to monitor the driver's activities. Respectfully, that was an erroneous approach. The burden remained upon the prosecution to establish a legal basis for depriving the Appellant of his property. No such evidence was tendered. 9. It is also noteworthy that the prosecution itself did not oppose the release of the vehicle to the Appellant after verifying the ownership documents. While the concession by the prosecution is not binding upon the Court, it reinforces the absence of evidence linking the Appellant to the commission of the offence. 10. In the circumstances, the forfeiture order amounted to an unjustified limitation of the Appellant's constitutional right to property under Article 40 of the Constitution. 11. Upon independently evaluating the record, this Court finds that the learned trial magistrate misdirected herself both in law and in fact by ordering forfeiture of the Appellant's motor vehicle despite the absence of statutory authority and despite there being no evidence implicating the Appellant in the commission of the offence. 12. The appeal is therefore meritorious. 13. **DISPOSITION** 14. Consequently, the appeal succeeds. 15. The Court accordingly makes the following orders: 16. **The appeal is hereby allowed.** 17. **The ruling and order of the Senior Resident Magistrate delivered on 2nd April 2026 forfeiting Motor Vehicle Registration Number KDM 582X to the State are hereby set aside.** 18. **It is hereby ordered that Motor Vehicle Registration Number KDM 582X be released forthwith to the Appellant, Enock Kimutai Ngeno, unless otherwise lawfully held in connection with any other proceedings.** 19. **The order forfeiting the fourteen (14) bags of charcoal to the Kenya Forest Service, which was not challenged in this appeal, shall remain undisturbed.** 20. Orders accordingly. **DATED, SIGNED, AND DELIVERED AT NAROK THIS 30TH DAY OF JULY, 2026.** **CHARLES KARIUKI** **JUDGE** 1. Top of Form 2. Bottom of Form Bottom of Form