[2009] KEHC 344 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

Judicial Review 91 of 2009

FELISTA WANJIKU MUCHIRI…………………APPLICANT

VERSUS

NYAHURURU PRI. MAGISTRATE……..1ST RESPONDENT ATTORNEY GENERAL………………....2ND RESPONDENT

RULING

Pursuant to leave granted on 22nd September, 2009, the appellant has now instituted these judicial preview proceedings against Nyahururu Principal Magistrate and the Attorney General seeking an order of certiorari to quash the proceedings and decision of the Principal Magistrate in P.M.CR.Case No.912 of 2009 in which she ordered the forfeiture of the applicant’s lorry Registration No.KAA 528J to the Kenya Forest Service.

Before the Principal Magistrate were eight suspects charged jointly with cutting down forest produce and transporting the same contrary to section 52(1) (a) as read with sections 52(2) and 55(1)(a) of the Forest Act. Although the charge sheet was not part of the annextures to this application, it would appear that one of the suspects, the 2nd accused person was charged alone in count ll whose details are not clear.

But relevant to this matter, is the pleas of guilty by one of the eight suspects. The 4th accused person, Peter Nganga pleaded

guilty to the charge and upon conviction, the trial magistrate sentenced him to a fine of Kshs.50,000/= or in default to serve six months imprisonment. In addition she ordered the forfeiture of the lorry in question in this application. That was on 11th May, 2009. I may mention at this stage that prior to this, on 29th April, 2009 and on 4th May, 2009, counsel for the first accused intimated to the trial magistrate that he could be making an application for the release of the motor vehicle herein. It is the order of forfeiture of the motor vehicle that has given rise to this application. The applicant, Felista Wanjiku Muchiri, who was not charged along with the eight suspects, is the registered owner of the motor vehicle. She has averred that before the forfeiture order was made she was not accorded an opportunity to be heard; that the forfeiture order violated her rights under section 75 of the Constitution. Despite service on the respondents, both with this application and the hearing notice, they neither responded nor attended court to canvass the application.

I have considered the arguments made on behalf of the applicant and the authorities cited in support of the application. Only one accused person out of eight accused persons pleaded guilty. It would appear from the annextures to this application, that the case before the learned magistrate is still pending as there is nothing to suggest the contrary. If that be so, was the learned magistrate in

order to forfeit the motor vehicle before the trial was concluded? That probably is not for this court to answer. Suffice to state that there is evidence that the trial court was informed early enough that there would be an application for the release of the motor vehicle. There is also evidence in this application that the motor vehicle belonged to a third party, the applicant herein. A decision of a court or tribunal subordinate to the High Court may be quashed by an order of certiorari if the decision is made without or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons. There is no doubt whatsoever that by dint of section 55(1)(c) of the ForestAct, 2005, the learned trial magistrate could make the order of forfeiture. The only question therefore is whether the applicant was entitled to a hearing before the order of forfeiture was made.

According to section 55(1)(c) aforesaid, where a person is convicted of an offence of damaging, injuring or removing forest produce from the forest, the court may, in addition to any other punishment among other things, order any vehicle used in the commission of the offence to be forfeited to the Kenya Forest Services. There is no requirement that the owner of the vehicle involved be heard before an order of forfeiture is made. However, it is trite learning that the rules of natural justice are inherent in all proceedings be they judicial or administrative unless there is express

provision in the law barring an interested party from being heard and I am yet to come by such a provision.

As was held in Republic Vs. Kigera, Criminal Appeal No.48 of 1986 that the fact that there is no express provision in a legislation requiring the court to hear a party interested in a matter before it, does not mean that the court is divested of or denied jurisdiction to hear that party. I may add that it is imperative for the court to hear any person who, in the judgment of the court, is reasonably likely to be affected by its orders.

The learned magistrate was alive to the interest in the vehicle before she made the forfeiture order. As a matter of good practice before such an order is made, the court must inquire into the question of ownership of the item before it makes an order of forfeiture. The learned trial magistrate’s subsequent orders, which she vacated clearly point to the fact that she appreciated the need to hear the applicant.

For all the reasons stated herein, the orders made by the lower court on 11th May, 2009,(erroneously stated in the application as 11th June, 2009) is hereby quashed by an order of certiorari in respect only of the forfeiture order. The effect of this is that the question of forfeiture or otherwise of the vehicle will be canvassed before thetrial court afresh. Costs of this application to be in the cause.

Dated, Signed and Delivered this 14th day of December, 2009

W. OUKO

JUDGE