[2021] KEHC 13691 (KLR)
The court held that the application for release of the impounded motor vehicle should have been made before the court handling the criminal trial, not by opening a separate miscellaneous application. The trial magistrate erred in striking out the application for want of jurisdiction without considering that the...
Source-derived case information.
- Citation
- [2021] KEHC 13691 (KLR)
- Parties
- Appellant: James Gitari Samuel; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Judgment Date
- 25 November 2021
- Case Number
- Criminal Appeal E040 of 2021
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed
- Judges
- KW Kiarie
- Legal Topics
- Release of Property, Jurisdiction of Magistrate, Forfeiture of Vehicle, Criminal Procedure, Application Under Section 177, Repealed Legislation
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Gitari Samuel
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate had jurisdiction to entertain the application for release of the motor vehicle.
- 2 Whether the application for release of the impounded vehicle should have been made in the court seized of the criminal trial.
- 3 Whether the law under which the accused were charged was repealed and its effect on the proceedings.
Ratio Decidendi
The court held that the application for release of the impounded motor vehicle should have been made before the court handling the criminal trial, not by opening a separate miscellaneous application. The trial magistrate erred in striking out the application for want of jurisdiction without considering that the proper procedure was to address such applications in the main criminal case. Furthermore, the court emphasized that the law under which the accused were charged had been repealed, and it is the responsibility of the trial court to ensure charges are brought under the correct legal provisions. If there is no forfeiture clause in the applicable law, the vehicle should be released...
Court Disposition
appeal allowed
Orders
- The appeal is allowed.
- The application for release of the motor vehicle to be made before the court seized of the criminal trial.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT HOMA BAY
CRIMINAL APPEAL NO.E0 40 OF 2021
JAMES GITARI SAMUEL........................................................................APPELLANT
VERSUS
REPUBLIC.................................................................................................RESPONDENT
(From the Ruling and Order in Misc. Criminal Application caseNo.E077 of 2021 of the
Chief Magistrate’s Court atHoma Bay by Hon. J.M. Nangéa –Chief Magistrate)
JUDGMENT
1. On 26th October, 2021 the appellant moved the court by way of Notice of Motion under section 177 of the Criminal Procedure Code and Article 40 of the Constitution of Kenya. He was seeking an order for the release of motor vehicle KBZ 426Y pending the determination of Homa Bay Criminal case No. E095 of 2021.
2. The appellant contended that he was not a party to the commission of the offence for which the motor vehicle was impounded; he was the registered owner.
3. After hearing the application, the learned trial magistrate struck it out for want of jurisdiction.
4. The appellant was aggrieved and filed this appeal. He was represented by the firm of Ongoso & Company Advocates. The appellant raised seven grounds of appeal which can be summarized as follows:
a) That the learned trial magistrate erred in holding that he lacked jurisdiction.
b) That the learned trial magistrate erred in law and facts by failing to appreciate the averments of the appellant.
5. The respondent conceded the appeal through Mr. Ochengo, learned counsel who argued that the release ought to be conditional.
6. Section 177 of the Criminal Procedure Code provides:
Where, upon the apprehension of a person charged with an offence, any property is taken from him, the court before which he is charged may order—
(a) that the property or a part thereof be restored to the person who appears to the court to be entitled thereto, and, if he be the person charged, that it be restored either to him or to such other person as he may direct; or
(b) that the property or a part thereof be applied to the payment of any fine or any costs or compensation directed to be paid by the person charged.
7. The application by the appellant ought to have been made before the court seized of the criminal trial so that a just and fair conclusion could be arrived at. It was erroneous for the applicant to open a different file from the one where the offences that caused the lorry to be impounded were being tried.
8. In Homa Bay Criminal case NO. E095 of 2021 the accused therein were charged under the Forest Act of 2005, now repealed. Section 76 of Forest Conservation and Management Act No. 34 of 2016 provides:
The Forests Act, 2005 (No. 3 of 2005) and Timber Act (Cap. 386) are hereby repealed.
9. The application for the release of the motor vehicle ought to be made to the court seized of the matter and which must bear in mind whether the section under which the accused therein will be charged calls for the forfeiture of the vessel transporting the forest produce in the event of a conviction. If there is no forfeiture clause, it is prudent to release the vehicle conditionally to the registered owner.
10. It is incumbent on the court taking plea to first check if the charge is correct in all aspects to avoid scenarios where people are charged under repealed law unless the circumstances of the offence allow the same.
DELIVERED AND SIGNED AT HOMA BAY THIS 25TH DAY OF NOVEMBER, 2021
KIARIE WAWERU KIARIE
JUDGE