[2018] KEHC 6714 (KLR)

EPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITUI

CRIMINAL MISC. APPLICATION NO. 24 OF 2017

FRED MWAURA KIMANI........................................APPLICANT

VERSUS

D.C.I.O. KITUI CENTRAL...............................1ST RESPONDENT

THE O.C.S. KITUI POLICE STATION..........2ND RESPONDENT

DIRECTOR OF PUBLIC PROSECUTION....3RD RESPONDENT

R U L I N G

1. By a Notice of Motion dated the 3rd April, 2017,the Applicant, Fred Mwaura Kimaniseeks orders as follows:

(i) Thatthe Motor Vehicle Registration Number KCD 339J detained at Kitui Police Station be released forthwith to the Applicant Fred Mwaura Kimani,by the OCS Kitui Police Station or by the officerer under the direction of the OCS Kitui Police Station.

(ii) Thatthe Applicant to be ready to avail the Motor Vehicle any time that the Court may ask for it.

(iii) Thatthe Director of Public Prosecutions Kitui County do serve the order on the OCS Kitui Police Station.

2. The application is premised on grounds that the Applicant purchased the subject motor-vehicle through the Asset Finance Loan from Equity Bank (k) Limited and it’s jointly registered in his name and that of the Bank. The motor-vehicle has been in police custody since April, 2016awaiting investigations into an offence of Conspiracy to Defeat Justicecontrary to Section 117of thePenal Code.That the loan has remained un-serviced since then such that the bank has threatened to repossess the motor-vehicle to exercise its right of re-sale to recover the unpaid amount plus interest thereon and that a similar application was made before the Chief Magistrate who declined to rule on it on the ground that it was overtaken by events as the High Court ordered a retrial in Kitui Criminal Case No. 357 of 2016in which the subject motor-vehicle is an exhibit. But, since photographs of the motor-vehicle have been taken they can be used during trial.

3. In an affidavit in support of the application, the Applicant deponed that Kimani Kamauhired his motor-vehicle to use within Kitui West.He failed to return it on the 9th April, 2016therefore he carried out a search only to find that Kimani Kamauhad been arrested and charged for the offence of Transporting Charcoal without a Permitin Kitui Chief Magistrate’s Court where he was convicted and sentenced.

4. On learning that he was required to appear before Court to show cause why the subject motor-vehicle should not be forfeited to the State he appeared before Hon. Rose Ombataon 11th April, 2016who warned him and issued an order for release of motor-vehicle.

5. That on the 13th April, 2016, No. 232022 C I Daniel Thukuobtained orders to detain the subject motor-vehicle pending investigations into the offence of Conspiracy to Defeat Justiceas provided by Section 117of the Penal Code.He moved the Court to have the motor-vehicle released which ruled that the application had been overtaken by events as a retrial had been ordered in Kitui Criminal Case No. 357 of 2016in which the motor-vehicle was an exhibit.

6. It was the Applicant’s averment that he is suffering unfairly for an offence committed by Kimani Kamauand it is only proper for the subject motor-vehicle to be released to him pending a retrial. The continued detention of the motor-vehicle is harmful as it exposes him to irreparable loss and damages and grave financial loss.

7. In a supplementary affidavit the Applicant averred that suspects were charged with the offence of Conspiracy to Defeat Justiceand he is a witness.

8. The ODPP, the Respondent herein was duly served with the application but he failed to respond. Inspite of the reminder in open Court and even being granted leave to respond to the Supplementary Affidavit that was filed, they neglected to do so.

9. The Applicant chose to rely on the affidavit evidence filed while the Respondent purported to file written submissions.

10. In essence the application stands unopposed since the Respondent failed to file either an affidavit in reply or Grounds of Opposition.

11. I did pronounce myself in Criminal Revision No. 4 of 2016where the subject motor-vehicle was an exhibit. In Paragraph 14of the RulingI stated thus:

“In the result, I quash the conviction and set aside the sentence imposed. Orders that emanated therefrom which are illegal are also quashed. I therefore remit the matter to be determined by the subordinate court presided over by a Magistrate of competent jurisdiction other than Honourable E. Boke, Principal Magistrate and Honourable R. Ombata, Resident Magistrate. Mention on the 13th September, 2016. ”

Without any response from the Respondent there is no indication if the order dated the 8thday of September, 2016was complied with.

12. It is stated that same suspects have since been charged with the offence of Conspiracy to Defeat Justicein Criminal Case No. 280 of 2017where the subject motor-vehicle should be adduced in evidence. In my Ruling I clearly pointed out at Paragraph 9that the subject motor-vehicle that the Resident Magistrate purported to release had not been produced in evidence and was not in custody of the Court.

13. If the Applicant is a witness in the case of Conspiracy to Defeat Justiceas alleged in Paragraph 3of the Supplementary Affidavit, the application for release of the motor-vehicle should be made in that particular case once the exhibit is produced.

14. From the foregoing the application before me is unmeritorious. Accordingly, it is dismissed.

15. It is so ordered.

Dated, Signedand Deliveredat Kituithis 17thday of April,2018.

L. N. MUTENDE

JUDGE