[2017] KEHC 690 (KLR)
The court found that the trial magistrate erred by declining to order forfeiture of the unclaimed donkeys without providing reasons. Given that the donkeys were unclaimed, and the Kenya Forest Service lacked facilities and budget for their upkeep, the High Court exercised its revisionary jurisdiction to order...
Source-derived case information.
- Citation
- [2017] KEHC 690 (KLR)
- Parties
- Applicant: Kenya Forest Service; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyahururu
- Jurisdiction
- Kenya
- Judgment Date
- 7 November 2017
- Case Number
- Criminal Revision 23 of 2017
- Procedural Posture
- Criminal Revision / Revision Order
- Outcome
- Application for revision allowed. Order of forfeiture of donkeys granted.
- Judges
- RPV Wendoh
- Legal Topics
- Forfeiture of Property, Wildlife and Forest Offences, Unclaimed Property, Execution of Magistrate Orders
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Forest Service
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Revision Order
Legal Issues
- 1 Whether the unclaimed donkeys seized by Kenya Forest Service should be forfeited and sold by auction.
- 2 Whether the trial court erred in declining to order forfeiture of the donkeys without giving reasons.
Ratio Decidendi
The court found that the trial magistrate erred by declining to order forfeiture of the unclaimed donkeys without providing reasons. Given that the donkeys were unclaimed, and the Kenya Forest Service lacked facilities and budget for their upkeep, the High Court exercised its revisionary jurisdiction to order forfeiture and sale by public auction in accordance with the law. The decision was grounded on the statutory authority under Section 67(6) of the Forest Conservation & Management Act 2016, which empowers the court to order forfeiture and disposal of unclaimed property seized in connection with forest offences.
Court Disposition
Application for revision allowed. Order of forfeiture of donkeys granted.
Orders
- The seven unclaimed donkeys are forfeited to Kenya Forest Service.
- The donkeys shall be sold by public auction in accordance with the law.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYAHURURU
CRIMINAL REVISION NO.23 OF 2017
KENYA FOREST SERVICE………………..………………. APPLICANT
- V E R S U S –
REPUBLIC………………………………………………….RESPONDENT
REVISION ORDER
Kenya Forest Service moved the Senior Resident Magistrate’s Court for an order that 7 donkeys seized by the Service and 28 red cider posts be forfeited and sold by Auction.
Hon. Momanyi – Senior Resident Magistrate granted an order for forfeiture of the cider posts to Kenya Forest Service but declined to grant the order for forfeiture of the donkeys. CIP Richard Kipyator of Kenya Forest Service has moved this court for revision of the said order for forfeiture of the donkeys. He contends that the donkeys have not been claimed by anybody; that they have no storage facility for livestock and no budgetary allocation for their upkeep. He urges the court to order forfeiture pursuant to Section 67(6) of the Forest Conservation & Management Act 2016.
When the trial court declined to grant the order for forfeiture of the donkeys, it did not give any reasons for its decision. The CIP has explained that the donkeys are unclaimed and they have no facilities to care for them. I therefore revise the court’s order and do order that the donkeys are hereby forfeited to the Kenya Forest Service and should be sold by Public Auction in accordance with the law.
Signed and Dated at NYAHURURU this 7th day of November2017.
………………………………..
R.P.V. Wendoh
JUDGE