[2014] KEHC 7188 (KLR)
The court held that the petitioner, as the owner of the forfeited motor vehicle, was entitled to be heard before any adverse order affecting its property rights could be made. The right to a fair hearing is a constitutional guarantee under Articles 47 and 50, and is inherent even where not expressly provided for by...
Source-derived case information.
- Citation
- [2014] KEHC 7188 (KLR)
- Parties
- Applicant: Roy Hauliers Ltd; Respondent: Hon. Attorney General; Respondent: Senior Resident Magistrate’s Court at Narok; Respondent: Kenya Forest Services; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 607 of 2013
- Procedural Posture
- Constitutional Petition / Ruling on Petition Challenging Forfeiture Order
- Outcome
- Petition allowed; forfeiture order set aside; matter remitted for hearing.
- Judges
- DAS Majanja
- Legal Topics
- Right to Fair Hearing, Forfeiture of Property, Judicial Review, Administrative Action
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Roy Hauliers Ltd
Applicant
Hon. Attorney General
Respondent
Senior Resident Magistrate’s Court at Narok
Respondent
Kenya Forest Services
Respondent
Director of Public Prosecutions
Respondent
Procedural Posture
Constitutional Petition / Ruling on Petition Challenging Forfeiture Order
Legal Issues
- 1 Whether the petitioner was denied the right to be heard before the forfeiture of its motor vehicle.
- 2 Whether the forfeiture order issued without hearing the petitioner contravened constitutional rights under Articles 47 and 50.
- 3 Whether section 55(1)(c) of the Forest Act requires a hearing before forfeiture of property.
Ratio Decidendi
The court held that the petitioner, as the owner of the forfeited motor vehicle, was entitled to be heard before any adverse order affecting its property rights could be made. The right to a fair hearing is a constitutional guarantee under Articles 47 and 50, and is inherent even where not expressly provided for by statute. Section 55(1)(c) of the Forest Act does not make forfeiture automatic upon conviction; rather, it requires that the party affected by the forfeiture be given an opportunity to be heard. Since the petitioner was not heard before the forfeiture order was made, the order was set aside and the matter remitted to the magistrate to hear the petitioner and make an appropriate...
Court Disposition
Petition allowed; forfeiture order set aside; matter remitted for hearing.
Orders
- The order of forfeiture issued by the Court in Narok Senior Resident Magistrates Court Criminal Case No. 1791/2013 against Motor Vehicle Scania Truck KBS 259G and Trailer ZD 9893 is set aside.
- The issue of forfeiture is remitted back to the learned magistrate to hear the petitioner and thereafter make an appropriate order without delay.
Full Case Text
Judgment text and source record
29 paragraphs
IN THE HIGH COURT AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 607 OF 2013
BETWEEN
ROY HAULIERS LTD……………………………...…..PETITIONER
AND
HON. ATTORNEY GENERAL…….……...….. 1ST RESPONDENT
SENIOR RESIDENT MAGISTRATE’S
COURT AT NAROK……………………………...2ND RESPONDENT
KENYA FOREST SERVICES……….……..……3RD RESPONDENT
THE DIRECTOR OF
PUBLIC PROSECUTIONS………………………4TH RESPONDENT
RULING
By an order issued on 10th November 2013, the learned magistrate in Narok Senior Resident Magistrates Court Criminal Case No. 1791/2013 made the following order:-
60 bags of charcoal forfeited to the State (Kenya Forest Service).
Motor Vehicle Scania Truck KBS 259G and Trailer ZD 9893 forfeited to the State (Kenya Forest Service) taking into account section 52 of the Forest Act as read together with Muya v Republic (2004) 1KLR 515. Kenya Forest Service to collect vessels.
Each fined minimum fine of Kshs.50,000/= in default 8 months imprisonment.
The petitioner herein is the owner of the motor vehicle and has moved the Court by the petition seeking orders of release of the vehicle principally on the ground that the petitioner who was not party to the criminal proceedings and was not given an opportunity to be heard before the order of forfeiture was given.
The respondents have, in their written submissions, conceded that the petitioner was not given an opportunity to be heard. I agree that the concession is proper as the right to a fair hearing is fundamental to our system of justice under the Constitution and is indeed protected by Articles 47and50 of the Constitution and underpinned by its principles and values (See Prime Salt Works Ltd v Kenya Industrial Plastics Ltd [2001] 2 EA 528).
Even where a statutory enactment does not expressly provide for a hearing such a right is inherent and the court must give a party the opportunity to be heard before condemnation. Section 55(1)(c) of the Forest Act under which forfeiture is made provides that, “where a person is convicted …… the court may in addition to any other ruling order (c) the forest produce be removed and any vessels vehicles, tools or implements used in the commission be forfeited to the service.” In Peterson Njue v Maralal Senior Resident Magistrate and Another NKR HC JR No. 64 of 2009 [2010]eKLR the court concluded that section 55((1)(c) of the Forest Act under which the order of forfeiture was made, was not automatic upon conviction and the party affected had a right to be heard. (See also Felista Wanjiku Muchiri v Nyahururu Principal Magistrate and Another NKR HC JR No. 91 of 2009 [2009]eKLR.) In this case the petitioner had a right to be heard in view of their interest in the motor vehicle and the likelihood of the adverse order being made.
In the circumstances, the order that commends itself to the Court is as follows;
The order of forfeiture issued by the Court in Narok Senior Resident Magistrates Court Criminal Case No. 1791/2013 against Motor Vehicle Scania Truck KBS 259G and Trailer ZD 9893 be and is hereby set aside.
The issue of forfeiture is remitted back to the learned magistrate to hear the petitioner and thereafter make an appropriate order without delay.
The vehicles shall remain the custody of the Court or the Kenya Forest Service as the case may be until the application is heard and determined.
There shall be no order as to costs.
DATEDandDELIVEREDatNAIROBIthis12th February 2014
D.S. MAJANJA
JUDGE