[2018] KEHC 7805 (KLR)
The High Court found that the trial magistrate acted within the lawful authority conferred by Section 67 of the Betting, Lotteries and Gaming Act in ordering the forfeiture of the three gaming machines used in the commission of the offence. The court further held that its revisionary jurisdiction under Sections 362...
Source-derived case information.
- Citation
- [2018] KEHC 7805 (KLR)
- Parties
- Applicant: Hellen Adhiambo Oluoch; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 56 of 2018
- Procedural Posture
- Criminal Revision / Judgment
- Outcome
- application dismissed
- Judges
- TW Cherere
- Legal Topics
- Forfeiture of Property, Betting and Gaming Offences, Criminal Revision Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hellen Adhiambo Oluoch
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Judgment
Legal Issues
- 1 Whether the trial magistrate had the lawful authority to order forfeiture of the gaming machines to the state.
- 2 Whether the High Court should revise the lower court's order of forfeiture in favour of the applicant.
Ratio Decidendi
The High Court found that the trial magistrate acted within the lawful authority conferred by Section 67 of the Betting, Lotteries and Gaming Act in ordering the forfeiture of the three gaming machines used in the commission of the offence. The court further held that its revisionary jurisdiction under Sections 362 and 364 of the Criminal Procedure Code did not reveal any illegality, impropriety, or incorrectness in the lower court's order. Consequently, there was no basis to interfere with or revise the forfeiture order, and the application for revision was declined.
Court Disposition
application dismissed
Orders
- The application for revision is declined.
- The order of forfeiture of the three gaming machines to the state is upheld.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
CRIMINAL REVISION NO.56 OF 2018
(From original conviction and sentence in Criminal Case No. 46 of 2018 in
Senior Resident Magistrate's Court at Tamu passed by Hon. E.M.Onzere- SRM).
HELLEN ADHIAMBO OLUOCH........APPLICANT
V E R S U S
REPUBLIC...........................................RESPONDENT
JUDGMENT
1. This revision was brought by way of applicant’s letter received on 27. 2.18 in which she seeks release of three gaming machines forfeited to the state on the ground that she is the owner of the machines.
2. The brief background of this matter is that Bernard Otieno& 4 others were jointly charged with gaming in unlicensed premises contrary to section 14(2) of the Betting, Lotteries and Gaming Act Cap 131 Laws of Kenya (the Act). The 5 pleaded guilty on their own plea of guilt. They were convicted and each was finedKshs. 1,000/- in default to serve 1 month imprisonment.
3. Three gaming machines which were used in the commission of the offence were produced as exhibits 1, 2 and 3. The learned trial magistrate ordered that the same be forfeited to the state.
4. The order of forfeiture provoked this revision. The powers of the High court in revision cases are contained in Section 362 through to 366 of the Criminal Procedure Code (cap.75). Section 362 specifically provides as follows:-
“362. 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 finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court”.
5. What the High Court can do under its revision jurisdiction is stated under section 364 of the Criminal Procedure Code Cap 75, which states as follows:-
“364. (1) in the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High court may -
(a) ………………………………………………………………………………………
(b) in the case of any other order than an order of acquittal, alter or reverse the order.
5. Section 67the Actgives power to court to deal with anything produced to it in the following terms:
‘’ The Court by or before which any person is convicted of any offence under this Act may order anything produced to the Court and shown to the satisfaction of the Court to relate to the offence to be forfeited and either destroyed or dealt with in such other manner as the Court may order’’
6. I have perused the record of the Lower court for the purpose of satisfying myself as to the legality, correctness or propriety of the same. I find that the trial magistrate’s power of forfeiture of the 3 machines used in connection with the offence was lawful and judicious.
7. Consequently, this court declines the invitation to revise the lower court’s order in favor of the applicant.
DATED AND DELIVERED THIS22ndDAY OFMarch2018
T.W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant - Felix/Carolyne
Applicant -N/A
For the State -N/A