[2022] KEHC 10664 (KLR)

Kimathi v Republic (Miscellaneous Criminal Application E199 of 2021) [2022] KEHC 10664 (KLR) (Crim) (16 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10664 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Miscellaneous Criminal Application E199 of 2021

GL Nzioka, J

May 16, 2022

Between

Boniface Mwenda Kimathi

Applicant

and

Republic

Respondent

Ruling

1. By a notice of motion application dated, 22nd June, 2021 the Applicant is seeking for orders as follows: -a.That pending hearing and determination of this application interparties, this Honourable Court be pleased to stay the confiscation of the Motor Vehicle Reg. No. KBJ 502E by State authorities in execution of the Judgement delivered on 27/05/2021, by Hon. C.M Njagi (SRM) in Criminal Case No. 63 of 2019, at JKIA Law Courts.b.That, this Honourable Court in exercise of its supervisory jurisdiction be pleased to call for the file in Criminal Case No. 63 of 2019 at JKIA Law Courts for purposes of reviewing the orders of the Learned Magistrate Hon. C.M Njagi (SRM) confiscating the Applicant’s Motor Vehicle Reg. No. KBJ 502 E to the State.c.That, this Honourable Court orders the Motor Vehicle Reg. No. KBJ 502E be released to the Applicant.d.That this Honourable Court issues any further orders it seems expedient in the circumstances in the interest of justice.

2. The application is based on the provisions of Sections; 177, 362, 364 and 367 of the of the Criminal Procedure Code, 20 of Narcotic Drugs and Psychotropic Substances Control Act, (herein “the Act”), Article 165(6) of the Constitution of Kenya 2010, (herein “the Constitution”), and all other enabling provisions of the law. It is supported by the grounds thereto and the affidavit of even date sworn by the Applicant.

3. The Applicant avers that; he is the registered owner of the subject Motor Vehicle Registration No. KBJ 502 E, Isuzu Lorry Fuel Tanker. That, he leased it out to one, Yusuf Mohamed Kiva, who was the Accused in the Chief Magistrates Criminal Case No. 63 of 2019, at JKIA.

4. He avers that, the Accused was arraigned in the Court over an offence of trafficking in narcotics drugs to contrary to section 4(a) of the Act. That, on 10th May 2019, the Accused and others not before the Court were found along Thika Super Highway in Kasarani Sub-County, within Nairobi County, trafficking in eighty-three (83) packages of narcotic drugs namely cannabis (bhang) to wit 415,000grams, with market value of; Kshs. 12,450,000. 00 by conveying in a Motor Vehicle Registration Number KBJ 502E Isuzu Lorry Fuel Tanker, in contravention of the Act.

5. That, after hearing the case, the Trial Court delivered a judgment on 27th May, 2021, in the subject matter, whereby the Accused was found guilty and convicted. In addition, the Court the ordered that, the Motor Vehicle Registration No. KBJ 502E be forfeited to the State.

6. However, the Applicant argues that, he is the registered owner of the vehicle and was not concerned or privy to the use, conveyance of the narcotic drug. That, he leased the Motor Vehicle to the Accused vide an agreement dated; 30th March 2019 wherein the accused was to pay Kshs. 120,000 per week.

7. That, in fact, he was a Prosecution Witness (PW 6) and assisted the Court in convicting the Accused and that, the order forfeiting the motor vehicle has occasioned him irreparable loss as the subject Motor Vehicle is the main source of his income. It has also arbitrarily deprived him of his property. He prays that, the Court exercises its supervisory jurisdiction and grant the orders sought.

8. However, the application was opposed by the Respondent vide a replying affidavit dated, 21st October, 2021, sworn by the Investigating Officer in the matter Chief Magistrate Criminal Case No. 63 of 2019, No. 55622 Sgt. Francis Mjomba. He joined issues with the Applicant on the arrest of the Accused, the recovery of Eighty-Three (83) packages of dry plant material suspected to be narcotic drugs and detention of the subject Motor Vehicle at Kasarani Police Station.

9. He averred that, when the Applicant went to the Police he was served with a Notice of Seizure and a Requisition to compel attendance. Further, the suspects were charged in Court, convicted and the vehicle forfeited to the State and it has been handed over to the Asset Recovery Agency.

10. That, the motor vehicle was modified irregularly, whereby compartments that stored the drugs were created and the fact that, it is the Applicant’s source of income does not absolve him from blame. Therefore, he cannot be given back the vehicle.

11. The Applicant filed a supplementary affidavit dated 19th January, 2022, reiterating the averments in the supporting affidavit save to add that, he sought for the release of the vehicle during the hearing of the criminal case in the Trial Court and the Court declined to release it vide a ruling delivered 2nd December, 2020, on the ground that, the case was at critical stage.

12. Further he challenged the Seizure notice through a letter to the Inspector General dated; 21st June, 2019. Further before forfeiting the Motor Vehicle the Court should have given him an opportunity to be heard.

13. The application was disposed of by filing of submission, which I have considered herein. The main issue for determination is whether the applicant has met the threshold of review of the impugned order forfeiting the subject Motor Vehicle.

14. The relevant provisions of law that guide the revisionary power of the High Court is, sections 362 and 364 of the Criminal Procedure Code which states 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.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)in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;(b)in the case of any other order other than an order of acquittal, alter or reverse the order.(2)No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence: Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.(3)Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.(4)Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.(5)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”.

15. It is clear from the above provisions that, the Court will only exercise its revisionary powers where, the impugned sentence is either incorrect, illegal or improper. The objective of revisionary jurisdiction is to set right a patent defect or error of jurisdiction or law. This jurisdiction will only be involved where the decision under challenge is; grossly onerous, there is no compliance with the provisions of the law, or the finding re-ordered are based on no evidence, or material evidence is ignored or judicial discretion is exercised arbitrarily or perversely.

16. The question that arises herein is whether, the Court complied with the Law when issuing the order of forfeiture. The Act No. 4 of 1994 makes provision for forfeiture of all seized articles and things used in the commission of an offence under the Act. In that regard, Section 20 of the Act states that; -(1)Any machinery, equipment, implement, pipe, utensil, or other article used for the commission of any offence under this Act shall be forfeited to the Government.(2)Every conveyance used for the commission of any offence under this Act or for carrying any machinery, equipment, implement, pipe, utensil or other article used for the commission of any offence under this Act, or any narcotic drug or psychotropic substance, shall be forfeited to the Government:Provided that where, on application made by the person who was the owner of the conveyance to the court in which any prosecution for any offence under this Act or before which any proceedings under this Act for the forfeiture and condemnation of any conveyance, not being a proceeding under Part IV is pending, the court is satisfied beyond reasonable doubt that—(a)the person who was the owner of the conveyance; and(b)in the case of an aircraft or ship, every person who was a responsible officer thereof, when it was made use of for such conveyance, was not concerned in or privy to such use, the conveyance shall be restored to the owner by the court”.

17. Similarly, the provisions of; Section 78 of the Act provides that: -“Where a person is convicted of an offence under this Act and any narcotic drug or psychotropic substance, motor vehicle, aircraft, ship, carriage or other conveyance or any other article or thing, liable to forfeiture to the Government under this Act in respect of that offence has been seized under this Act, the court convicting him may, in addition to any other penalty imposed on him, order that the narcotic drug, psychotropic substance, motor vehicle, aircraft, ship, carriage or other conveyance or other article or thing be condemned and forfeited to the Government.

18. It suffices to note that, a conveyance is defined under section 2 of the Act, which states that, it is a conveyance of any description used for the carriage of persons or goods and includes any aircraft, vehicle or vessel. Therefore, the subject Motor Vehicle herein fits in that definition.

19. It is also noteworthy that, the aforesaid provisions do not expressly provide for the procedure of the forfeiture, therefore recourse must be held to the provisions thereof under Section 389A the Criminal Procedure Code which states that:389A. (1) Where, by or under any written law (other than section 29 of the Penal Code), any goods or things may be (but are not obliged to be) forfeited by a court, and that law does not provide the procedure by which forfeiture is to be effected, then, if it appears to the Court that the goods or things should be forfeited, it shall cause to be served on the person believed to be their owner notice that it will, at a specified time and place, order the goods or things to be forfeited unless good cause to the contrary is shown; and, at that time and place or on any adjournment, the Court may order the goods or things to be forfeited unless cause is shown by the owner or some person interested in the goods or things:Provided that, where the owner of the goods or things is not known or cannot be found, the notice shall be advertised in a suitable newspaper and in such other manner (if any) as the court thinks fit.(2)If the Court finds that the goods or things belong to some person who was innocent of the offence in connexion with which they may or are to be forfeited and who neither knew nor had reason to believe that the goods or things were being or were to be used in connexion with that offence and exercised all reasonable diligence to prevent their being so used, it shall not order their forfeiture; and where it finds that such a person was partly interested in the goods and things it may order that they be forfeited and sold and that such person shall be paid a fair proportion of the proceeds of sale”.

20. The aforesaid provisions clearly stipulate that, before any goods are forfeited to the Government, the claimant must be served with a notice of forfeiture and given an opportunity to be heard and/or contest the forfeiture. I note that, although in criminal proceedings the prosecution must prove guilt, "beyond a reasonable doubt,” forfeiture proceedings is subject to a lower burden, preponderance of the evidence. Furthermore, the burden shifts to the claimant, to prove otherwise beyond reasonable doubt.

21. It therefore follows that, substantive proceedings must be conducted before the Trial Court and the claimant must be accorded an opportunity to present the evidence relied on to prove that, the Claimant did not have the necessary relationship to the crime or concerned in or privy to such use.

22. It is also noteworthy that, under section 20 of the Act the proceedings of forfeiture may take place and the subject item forfeited or released before completion of proceedings of the case whereas under section 78 forfeiture proceeding take place after trial and conviction of the Accused person.

23. The record of the Trial Court herein reveals that, first and foremost, the application for release of the vehicle by the applicant during trial was held in abeyance pending the hearing and determination of the case. Therefore, forfeiture order could only be made pursuant to section 78 of the Act and not section 20.

24. Indeed, the Trial Court indicated at page 19 of the judgment that, the forfeiture order was issued pursuant to section 78. I have already reproduced the provisions of that Section herein. It requires a notice be issued to the owner to be heard before the order is made. However, there is no evidence that the applicant herein was heard before the forfeiture order was made,

25. To the contrary, the learned trial Magistrate thus stated: -“Motor vehicle KBJ 502E was the one that was used to transport the said items to Nairobi. The owner one Boniface Mwangi stated that he had entered into an agreement with one Yusuf Mohammed Kiya on the 30th of March, 2019 as per the agreement produced as PEX 26. Evidence was led through photographs indeed to show that the vehicle is the one that contained the concealed items therein. A key ingredient to be considered is who was in possession if the motor vehicle at the time it was apprehended?It is clear from PWs 1, 2 and 3 that the 1st and 2nd Accused who were the turn boy and the driver at the time were in possession of the said vehicle when it was stopped. The vehicle was then searched and revealed the 83 packages containing bhang. The vehicle was hired and in the process was involved in the ferrying of bhang.The same was produced as PEX 38 by the prosecution witness and therefore I note that the same was involved in the conveyance of the said bhang and thus in the commission of the said crime and it should thus be treated as a proceed of crime and confiscated to the State for further action by the requisite authorised bodies. This is in accordance with section 78 of the Narcotic Drugs and Psychotropic Substance (Control) Act No. 4 of 1994. ..”

26. The rules of natural justice require that, a person receive a fair and unbiased hearing before a decision is made that will negatively affect them. Thus the first rule is “Hearing rule” which states, that the person or party who is affected by the decision made by the panel of expert members, Tribunal or Court should be given a fair opportunity to express his point of view to defend himself. Therefore, the three main requirements of natural justice that must be met in every case are: adequate notice, fair hearing and no bias.

27. In the same vein, Article 50(1) and 2(c) of the Constitution of Kenya, 2010 states that, every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a Court or, if appropriate, another independent and impartial tribunal or body. The right to a fair hearing include the right to have adequate time and facilities to prepare a defence.

28. As a result of the aforesaid, the Applicant was condemned unheard before the order of forfeiture was made. He did not have an opportunity to present the evidence he had to prove inter alia that the Claimant had no relationship with the commission of the offence.

29. Therefore, I find that, the learned trial Magistrate order of forfeiture of the subject vehicle herein is incorrect, irregular and improper as it was made in contravention of section 78 of the Act. The proceedings under that section are independent of the main trial and should be treated as such.

30. The upshot thereof is that, I set aside the order made by the trial court forfeiting the Applicant’s Motor Vehicle to the State. I order that, he must be accorded the right to be heard. This Court being an Appellate Court has no original jurisdiction to hear the matter nor issue the order to release the vehicle as prayed.

31. I therefore order that; the matter reverts back to the Trial Court for hearing on the issue either, before the trial court or any other competent court, (if the trial court is not available). However, it suffices to note that, the decision of the trial court under appeal and any order for release of the motor vehicle should take that into account

32. It is so ordered.

DATED, DELIVERED VIRTUALLY AND SIGNED ON THIS 16TH DAY OF MAY 2022GRACE L. NZIOKAJUDGEIn the presence of:-No appearance for the ApplicantMs. Kibathi for the RespondentMs. Kiogethi for the ApplicantEdwin Ombuna Court Assistant