[2022] KEHC 1370 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

MISC. CR. APPLICATION NO. E083 OF 2021

KENYA REVENUE AUTHORITY........................................................................APPLICANT

-VERSUS-

JOSIAH THIONG’O..........................................................................................RESPONDENT

RULING

On 4th October 2021 the learned trial magistrate made an order that the motor vehicle Registration Number KCE 176Sbe released to the owner, JOSIAH THIONGO.

1. The said order was made in Misc. Criminal Application No. E328 of 2021. In that application, Josiah Thiongo had sought the release of the vehicle in issue, from the KENYA REVENUE AUTHORITY, who had detained it, on the grounds that the said vehicle was used in ferrying uncustomed goods.

2. The owner of the lorry told the trial court that his vehicle and his driver, ISAAC MBURU, were only authorized to transport authorized goods.

3. He was therefore shocked to learn that his said driver had been charged, (together with 2 other persons), with the offences of;

“(i) Being in possession of uncustomed goods contrary to section 200 (d) (iii) as read with section 210 of the East African Community Customs Management Act 2004.

(ii) Conveying uncustomed goods contrary to Section 199 (c) (iii) of the East African Community Customs Management Act

2004. ”

4. By his supporting affidavit, the owner of the lorry deponed that the lorry had not been implicated with any offence, and that therefore, it did not form part of the court proceedings.

5. Nonetheless, the owner did offer to present the lorry in court at any time when the court required its production.

6. The learned trial magistrate ordered that the lorry be released to the owner. However, prior to the said release, the lorry was to be photographed by the Scene of Crime Personnel.

7. Furthermore, the trial court ordered that during the time when the criminal case was still pending, the lorry should not be disposed of.

8. Finally, the trial court ordered that the lorry be produced in court, as and when required.

9. The Applicant, KENYA REVENUE AUTHORITY, was aggrieved with the orders of the trial court, hence the application before me.

10. The Applicant first asked the Court to stay the execution of the orders made by the trial court.

11. On 14th October 2021, this Court granted an exparte order, staying the execution of the orders of the learned trial magistrate. Those orders were thereafter extended from time to time.

12. When the Respondent answered the application, he filed a Replying Affidavit.

13. In my considered opinion, the said affidavit constituted more legal arguments than factual evidence.

14. An affidavit is defined by the “Black’s Law Dictionary”10th Edition, as follows;

“A voluntary declaration of facts written down and sworn by a declarant, usually before an officer authorized to administer oaths. A great deal of evidence is submitted by affidavit, especially in pretrial matters such as summary judgement motions.”

15. In a nutshell, an affidavit is a legal document, sworn on oath, and which constitutes the evidence of the deponent.

16. The affidavit is supposed to contain facts about which the deponent can vouch for.

17. Therefore, when the Respondent states in his affidavit that the application herein does not meet the required threshold for revision, as provided under Section 362of the Criminal Procedure Code; that statement goes way beyond the scope of an affidavit. The said statement is actually in the nature of a legal argument, or a submission on legal matters.

18. The question as to whether or not the Kenya Revenue Authority has powers to prosecute offenders, is a legal issue. It is not the kind of statement which should be made in an affidavit.

19. In any event, Article 157 (12)of the Constitution of Kenyaexpressly empowers Parliament to enact legislation conferring powers of prosecution on authorities, other than the Director of Public Prosecution.

20. Pursuant to Section 107of the Tax Procedures Act, No. 29 of 2015;

“(1) Despite any other written law, an authorized officer may appear in any court on behalf of the

Commissioner in proceedings in which the Commissioner is a party, and subject to the direction of the

Director of Public Prosecutions, that officer may prosecute a person accused of committing an offence under a tax law.

(2) An authorized officer conducting a prosecution in accordance with subsection (1) shall have all the powers of a public prosecutor under the office of the Director ofPublic Prosecutions Act, No. 2 of 2013. ”

21. I find that the Applicant herein has legal authority to prosecute persons who were accused of committing any offence under a tax law.

22. The Respondent’s second challenge to the application was that the Court cannot review an order when it was sitting as a Criminal Bench.

23. According to the Respondent, the provisions of Section 362of the Criminal Procedure Code, only permit the Court to make orders of Revision, (as opposed to Review).

24. The Respondent was correct.

25. In criminal cases, the High Court is clothed with a supervisory jurisdiction over decisions and proceedings before the magistrate’s court.

26. Pursuant to Section 362of the Criminal Procedure Code;

“The High Court may call for and examine the record of any criminalproceedings before any subordinatecourt 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.”

27. The said statutory provision expressly spells out what the High Court may do: essentially the court has the power to call for records of any criminal proceedings, with a view to examining the record, in order to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by the court. The High Court may also examine the record, to satisfy itself as to the regularity of any proceedings before the subordinate court.

28. Once the High Court had examined the record of the proceedings, Section 364 (1)stipulates that the Court may;

“(b) in the case of any order other than an order of acquittal, alter or reversethe order.”

29. The process through which the court examines the record of proceedings, and then determines whether or not to alter or reverse the orders of the subordinate court, is called Revision.

30. In my considered view, the fact that the Applicant called the process as one of Review, is not at all prejudicial to the Respondent.

31. The Applicant had expressly cited the provisions of Sections 362and 364of the Criminal Procedure Code, when moving the court. Therefore, the Respondent was well aware of the provisions of law which would govern the application which it was required to answer to.

Forfeiture

32. Pursuant to Section 211of the East African Community Customs Management Act, 2004a vehicle or a vessel is liable to forfeiture if it was used in conveyance of any goods that are liable to forfeiture, under that statute.

33. Pursuant to Section 2“uncustomed goods”were defined as including dutiable goods on which full duties had not been paid, and any goods, whether dutiable or not, which are imported , exported or transferred or in any way dealt with contrary to the provisions of the Customs law.

34. The Respondent’s driver was charged alongside two other accused persons, with the offence of being in possession of uncustomed goods, contrary to Section 200 (d) (iii)as read with Section 210of the East African Community Customs Management Act, 2004.

35. Therefore, if the Respondent’s driver or any of the other accused persons were convicted, the uncustomed goods would be liable to forfeiture.

36. Secondly, as the Respondent pointed out;

“A vessel can only be forfeited if the accused is found guilty of an offence.”

37. The detention of the Respondent’s lorry, whilst the accused persons were still on trial, does not constitute forfeiture.

38. Section 214 (3) (a)of the East African Community Customs Management Act, 2004stipulates as follows;

“Where anything liable to forfeiture under this Act has been seized, then –

(a) If any person is being prosecuted for the offence byreason of which the thing wasseized, the thing shall bedetained until the determinationof such prosecution, and dealtwith in accordance with Section

215. ”

39. When called upon to interprete the said provision, Hon. Lady Justice Ngenye expressed herself thus, in REPUBLIC Vs NOORDIN HAJI JAMA & 3 OTHERS [2016] eKLR:

“Section 214 makes it clear that anything seized in relation to anoffence remains under detentionuntil the conclusion of the trial.

Those provisions target both theperson accused of committingan offence and anything that isallegedly used in the commissionof the offence.”

40. In this case, it was alleged that the Respondent’s lorry was used in conveying the allegedly uncustomed goods. Therefore, apart from the goods which were being conveyed, the vehicle which was being used for that purpose would be liable to forfeiture.

41. Pursuant to the provisions of Section 214, the said lorry ought to have remained under detention until the conclusion of the trial.

42. If the accused was convicted for an offence under the East African Community Customs Management Act, 2004, anything which was liable to forfeiture, shall, without further order, have effect as the condemnation of the thing.

43. That is what Section 215 (1)stipulates.

44. Section 215 (2)provides as follows;

“Where any person is prosecuted for an offence under this Act and anything is liable to forfeiture by reason of thecommission of such offence, then, on the acquittal of such person, the court may order the thing either –

(a) to be released to the person from whom it was seized orto the owner thereof; or

(b) to be condemned.”

45. In my considered opinion, this statutory provision reinforces the view that anything which had been seized from the person being prosecuted for an offence under the East African Community Customs Management Act, should remain detained until the trial is concluded.

46. It is upon the conclusion of the trial that the Court is required to determine what is to happen to the thing which had been seized: and that determination is only necessary if the accused was acquitted. I say so because the conviction of the accused automatically brings into play, the condemnation of the thing that had been detained.

47. In fact, Section 215 (1)makes the point that after the court had convicted an accused, the court would not need to make any further order, for the condemnation of the thing which had been detained.

48. On the other hand, an acquittal of the accused does not translate into an automatic order for the release of the detained thing.

49. Upon an acquittal, the court would still be called upon to make a determination whether to have the thing condemned, or to have it released to either the owner or to the person from whom it was seized.

50. In the circumstances, the release order made by the learned trial magistrate was not only premature, but also a negation of the express words of statute.

51. I therefore order that the orders made by the learned trial magistrate on 4th October 2021 be and are hereby set aside forthwith.

52. The Respondent should immediately return the lorry to the Applicant, who shall cause it to be detained until the criminal case is concluded.

53. The Respondent will pay to the Applicant, the costs of the application dated 8th October 2021.

54. Finally, I direct the trial court to expedite the hearing and determination of the case.

DATED, SIGNED and DELIVERED at KISUMU

This17thday of March2022

FRED A. OCHIENG

JUDGE