[2022] KEHC 18132 (KLR)

Kenya Revenue Authority & another v Wanyama; Wanyama (Accused) (Miscellaneous Criminal Application E060 of 2021) [2022] KEHC 18132 (KLR) (8 March 2022) (Ruling)

Neutral citation: [2022] KEHC 18132 (KLR)

Republic of Kenya

In the High Court at Busia

Miscellaneous Criminal Application E060 of 2021

JR Karanja, J

March 8, 2022

Between

Kenya Revenue Authority

1st Applicant

Office of the Director of Public Prosecution

2nd Applicant

and

Mildred Aloo Wanyama

Respondent

and

Daniel Omondi Oduor

Accused

Ruling

1. One Daniel Omondi Oduor said to be the driver, servant and/or employee of the respondent, Mildred Aloo Wanyama, was charged before the Senior Principal Magistrate at Busia in Criminal Case No E2355 of 2021 with two counts under the East African Community Customs Management Act, 2004 viz:-(i)Conveying Restricted Goods, contrary to S199 (b) as read with S 199 ( c ) (iii) of the said Act, in that on the August 14, 2021, along Bumala – Funyula Road within Busia County, being the driver of m/v Reg No KCE 288B Make Mitsubishi FH was found conveying thirty (30) drums each containing 250 litres of extra neutral alcohol with a dutiable value of Ksh 825,000/= which he knew or ought to have known were restricted goods.(ii)Possession of Restricted Goods, contrary to S200 (d) (ii) as read with S210 and 211 of the Act, in that on the 14th August, along Bumala/Funyula Road within Busia County, jointly with others not before court was found in possession of thirty (30) drums each containing 250 litres of extra neutral alcohol with a dutiable value of Ksh 825,000/= which he knew or ought to have known were restricted goodS

2. The accused entered a plea of not guilty in both counts thereby prompting the ongoing trial before the Senior Principal Magistrate. In the meantime, the respondent, being the beneficial owner of the m/v Reg No KCE 288B Mitsubish FH filed a notice of motion dated August 30, 2021, seeking the main order for unconditional release of the said m/vehicle pending the hearing and determination of the case.The application was made against the Kenya Revenue Authority, the first applicant herein through its officer in charge of Sio Port.Whereas the arraignment and prosecution of the respondent’s driver was the responsibility of the Office of the Director of Public Prosecution (ODPP) who are the second applicant herein, the actual complainant was the first applicant.

3After an inter-party hearing of the respondent’s interlocutory application, the trial court found in favour of the respondent and ordered the release of the subject m/vehicle to the respondent. This order was made on the November 16, 2021 and one month later, on the December 15, 2021, the present application dated December 14, 2021 was filed by the first and second applicants on the basis of the grounds set out in the appropriate notice of motion as fortified by the supporting affidavit deponed by Cpl. Lokeno Daniel on the December 14, 2021. The respondent opposed the application on the basis of the grounds and averments contained in her replying affidavit dated February 15, 2022. The hearing of the application proceeded by way of written submissions. In that regard, the first applicants, the second applicant’s and the respondent’s submissions were all filed herein on March 1, 2022.

4. The application is basically anchored on the provisions of S362 and S364 of the Criminal Procedure Code, which essentially deal with this court’s discretionary powers of revision and calling for and examining the record of any criminal proceedings before any subordinate court.Thus, S362 provides as follows:-“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.”And, S364 generally provides for the powers of the high court on revision. In that regard, sub-section (1) (b) provides that:-“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 other than an order of acquittal, alter or reverse the order.”

5. In the present application, prayers ( c ) and (d) are the most important as the applicants are asking this court to call for and examine the record of the trial court in criminal case No E2355 and thereafter be pleased to revise, vary, set aside and/or discharge the impugned orders of the trial court made on November 16, 2021. These orders were apparently made in regular criminal proceedings after a full hearing of an interlocutory application made by the respondent and opposed by both the first and second applicants. The trial of the criminal case against the respondent’s driver remained intact and is still ongoing.

6. The respondent emerged victorious in the interlocutory application, but the applicants were aggrieved or dissatisfied with the trial court’s order for the release of the subject m/vehicle to the respondent and as a result, filed the present application before this court rather than file an appeal against the trail court’s interlocutory ruling and order.Under S364 (5) of the Criminal Procedure Code, it is provided that:-“when an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.”

7. In Walome v Rep. [1981] KLR, 497, the Court of Appeal observed as follows:-“Revision is a discretionary remedy. Where the revisionary jurisdiction is exercised, a right of appeal lies under S361 (7) of the Criminal Procedure Code, but where the judge declines as was in this case to exercise that jurisdiction, then there is no right of appeal. A judge is not bound to accede to an application for revision, all the more so if he has reason to think that the applicant was proposing to appeal as was the case here.……………………………….Furthermore, subsection (5) of section 364 of the Criminal Procedure Code, makes it clear that a party who has a right of appeal, like the appellant in this case cannot insist on the case being entertained in revision, although the High Court is not of course precluded from exercising its revisionary jurisdiction “sil moto” if it thinks fit even if the aggrieved party has a right of appeal. (See Republic v Ajid Singh (1957) EA 822”.

8. Herein, the applicants were the aggrieved parties in the interlocutory application which was made within the material criminal proceedings relating to the criminal case involving the respondent’s driver and which case is yet to be finalized with a conviction or acquittal of the accused, in which case the aggrieved party would have a right of appeal against conviction or acquittal.In the present circumstances, the applicants being the aggrieved parties had a right of appeal against the impugned ruling and order of the trial court. Similarly, the respondent had a right of appeal if the ruling and order were not made in her favour. It would therefore follow that the present application is defeasible by the operation of S364 (5) of the Criminal Procedure Code.

9. In any event, a careful consideration of the grounds in support of the application together with the supporting affidavit and submissions clearly indicate that the issues raised therein are more suitable for an appeal rather than a revision as they are more or less the same issues which arose in the interlocutory application before the trial court and which were adequately ventilated and addressed by the disputants both on points of law and facts and which were given due consideration by the trial court culminating in the impugned ruling and order.Simply put, the present application is an appeal against the ruling and order of the trial court camouflaged as a revision. In any event the primary purpose of revisionary powers of the High Court is to enable exercise of supervisory jurisdiction of the High Court in terms of Article 165 (6) of theConstitution with a view to correcting or preventing errors which may occasion miscarriage of justice. (see, the decision of the Malaysia High Court in Public Prosecutor v Muharibin Mohdjani & Another[1996] 4LRC 728).

10. Notably, the primary evidence in the ongoing criminal case are the drums of extra neutral alcohol which is a restricted commodity. The motor vehicle used in the conveying of the commodity from one destination to another is actually a collateral or secondary evidence in establishing the main charge of being in possession of the restricted commodity.Although the commodity and the vehicle are both liable to forfeiture there is no guarantee that the trial will end with the conviction of the respondent’s driver in which event the vehicle shall fall within the ambit of forfeiture proceedings and/or related proceedings. On the other hand, the acquittal of the accused would keep such proceedings at bay.In the circumstances, it is difficult to discern how the applicants stand to suffer serious prejudice or a miscarriage of justice notwithstanding the seemingly pre-mature release of the vehicle to the respondent prior to the conclusion of the trial.

11. If at all any prejudice is suffered it would be insignificant and curable with an expeditious conclusion of the criminal case. It would in the present circumstances be imprudent for this court to invoke its revisionary jurisdiction merely because the trial court had taken a wrong view of the law or misapprehended the evidence on record otherwise there would be no difference between this court’s exercise of its appellate and revisionary jurisdictions. The real object of revision is to address a miscarriage of justice arising from a decision made by a lower court on the basis of what has been presented before it.Revisionary power should be invoked sparingly as the rationale behind the exercise of such power is to correct grave and serious injustice. Any irregularity or otherwise noted from the record of the proceedings in the lower court must have resulted in grave and serious injustice to attract revisionary jurisdiction of a High Court.

12. As was held by the Court in Singapore in the “locus – classicus” case on revisionary jurisdiction, Ang Poh Chuan v PP[1996] ISLR 326, a mere legal error is in itself insufficient to invoke the court’s revisionary jurisdiction. Instead, the error must be found to lead to a grave and serious injustice before there will be a revision of the decision.Thus, a prerequisite of the exercise of revisionary jurisdiction is that there must be shown some serious injustice. It must be shown that there is something palpably wrong in the impugned decision that strikes at its basis as an exercise of judicial power by the lower court (see the Ang Poh Chuan Case(supra) andKnight Glenn Jeyasingan v PP [1999] 3SLR) 362.

13. On the basis of all the reasons foregoing as argumented by the cited authorities from wide and far, this court is disinclined to exercise its revisionary jurisdiction and call for examination the record of the material criminal case with a view to revising, varying, setting aside and/or discharging the impugned orders of the trial court issued on November 16, 2021. The present application is wanting on merit and is hereby dismissed with orders directed at the trial court to prioritize and expeditiously dispose of the ongoing trial within the next sixty (60) days or less from this date hereof failure to which the m/vehicle subject of this application shall be re-seized by the first applicant and be held in its custody until final determination of the case.Ordered accordingly.

J.R. KARANJAHJ U D G E[DATED & DELIVERED THIS 8TH DAY OF MARCH 2022]