KRA v Eudias Wanjiku Kagai & another

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUSIA** **CRIMINAL REVISION APPLICATION NO. E016 OF 2026** **IN THE MATTER OF: SECTION 362 OF THE CRIMINAL PROCEDURE CODE, CAP. 75 LAWS OF KENYA** **BETWEEN** **KRA………………………….………………………………………APPLICANT** **VERSUS** **EUDIAS WANJIKU KAGAI…………………..…..……..…….RESPONDENT** **AND** **SAMMY KIPLAGAT & CHRISTOPHER ODADI…………………ACCUSED** **RULING** 1. **Introduction** 2. This is a revision arising from the proceedings and order of the Chief Magistrate’s Court at Busia in Criminal Case No. E289 of 2026. 3. The Court has been moved to examine the correctness, legality and propriety of the order made by Hon. P.C. Biwott, Chief Magistrate, on 15th July 2026, by which the learned magistrate ordered the release of motor vehicle registration number KAV 835R to Eudias Wanjiku Kagai, the registered owner and an alleged third party to the criminal proceedings. 4. The impugned order was made pursuant to an application dated 8 May 2026. The material conditions imposed by the trial court were that the applicant deposits the vehicle's logbook in court, does not part with ownership until determination of the criminal case, and remains ready to avail the motor vehicle to the DCI-Busia whenever required. 5. The revision challenges the exercise of discretion by the learned trial magistrate in ordering the release of the motor vehicle while the criminal proceedings remain pending. **Background** 1. From the record, the two accused persons are facing a charge under section 199(b) as read with section 199(iii) of the East African Community Customs Management Act, 2004 (EACCMA). 2. The prosecution alleges that on 10th April 2026, at Ongariema along the Amongura–Amaase Road within Busia County, the accused persons conveyed 85 drums, each containing 250 litres of ethanol, in motor vehicle registration number KAV 835R. 3. The evidence recorded before the trial court indicates that the motor vehicle was intercepted and subsequently examined by KRA and DCI officers. Samples taken from the contents of the drums were subjected to laboratory analysis, and the Government Analyst reported that the liquid was ethanol of approximately 95.25% to 95.66% v/v. 4. The KRA evidence further placed the customs value and taxes attributable to the goods at substantial sums. 5. The registered owner of the motor vehicle, Eudias Wanjiku Kagai, was not an accused person in the criminal case. Through counsel, she sought release of the vehicle principally on the basis that it was her source of income and that continued detention was occasioning loss of business and revenue. 6. The application was opposed by KRA. The objection was founded principally upon the provisions of EACCMA concerning seizure, detention and forfeiture of goods and conveyances. 7. The learned trial magistrate nevertheless allowed the application and ordered the release of the vehicle. 8. It is that exercise of discretion which is now under scrutiny. **Issues for determination** 1. Having considered the record, the following issues arise: 2. **Whether this Court has jurisdiction to interfere with the impugned order under section 362 of the Criminal Procedure Code.** 3. **Whether the learned trial magistrate properly exercised her/his discretion in ordering the release of motor vehicle KAV 835R.** 4. **What orders should issue.** 5. **Jurisdiction of the Court on revision** 6. **Section 362** of the Criminal Procedure Code empowers the High Court to call for and examine the record of any criminal proceedings before a 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. 7. The revisional jurisdiction is supervisory and is not intended to provide a substitute for an appeal. The Court is therefore not entitled to interfere merely because it would have reached a different conclusion from that reached by the trial court. 8. However, an exercise of discretion is not immune from revision. Where a court exercises discretion upon a wrong principle, takes into account irrelevant considerations, fails to take into account relevant considerations, or arrives at a decision that is plainly inconsistent with the applicable law, the resulting order may properly be interfered with. 9. The principle is well established that judicial discretion must be exercised judiciously and not capriciously. In **Mbogo v Shah [1968] EA 93,** the Court stated the circumstances in which an appellate court may interfere with the exercise of discretion, including where the lower court has misdirected itself or has arrived at a wrong conclusion. 10. Similarly, the High Court has held in revision proceedings that, *“the mere fact that another judicial officer might have exercised discretion differently is insufficient”*. What must be demonstrated is an error going to the legality, correctness or propriety of the decision. See, for example, **Yongo v Republic, Criminal Revision No. 16 of 2023**, where the Court reiterated the limits of revisionary intervention and the circumstances in which discretion may properly be interfered with. 11. **Whether the discretion was exercised judiciously?** 12. The central question is therefore not whether the trial magistrate possessed discretion. 13. The Court of Appeal has authoritatively held in **Warsame v Director of Public Prosecutions & another, Criminal Appeal No. E057 of 2022 [2024] KECA 1854**, that the words ***“shall be liable to forfeiture”*** in section 199(iii) EACCMA confer discretion upon the trial court to determine, on the evidence before it, whether the vehicle and goods should ultimately be forfeited. 14. This Court therefore accepts that the learned trial magistrate has a discretion in relation to forfeiture. 15. The question, however, is whether that discretion was properly exercised in ordering the release of the vehicle before conclusion of the criminal proceedings. In my view, it was not. 16. **The special statutory regime under EACCMA** 17. The motor vehicle was not an ordinary exhibit whose release could be determined solely by reference to general considerations of convenience, ownership or loss of business. 18. It was seized in connection with an alleged offence under EACCMA and was itself the conveyance in which the alleged un-customed/restricted goods were being transported. 19. **Section 211(1) EACCMA** provides, in material part, that a vehicle used in the conveyance of goods liable to forfeiture under the Act is itself liable to forfeiture. 20. Further, **section 214(3)(a)** provides for detention where anything liable to forfeiture has been seized and a person is being prosecuted for the offence by reason of which the thing was seized. 21. This Court has repeatedly emphasized the significance of this statutory regime. 22. In **Republic v Abdalla & another, Criminal Revision E051 of 2022 [2024] KEHC 4375**, the Court held that, *“where a person is being prosecuted for the offence by reason of which the thing was seized, the thing is to remain detained until determination of the prosecution in accordance with section 215 EACCMA”.* 1. Likewise, in **Kenya Revenue Authority v Mfinanga & another, Criminal Revision E154 of 2021 [2022] KEHC 12948**, the Court stressed that, *“the statutory provisions governing seized vehicles and goods could not simply be disregarded by an order for release during the pendency of the criminal proceedings”.* 1. The same approach was adopted in **Kenya Revenue Authority & another v John Peter Akello & another [2021] KEHC 724,** where the High Court considered whether the trial magistrate ought to have ordered release of a motor vehicle pending determination of the criminal case and noted the statutory basis upon which a vehicle used to convey goods liable to forfeiture may itself be liable to forfeiture. 2. **Failure to consider relevant matters** 3. The impugned ruling principally proceeded on the following considerations: that the applicant was the registered owner, that she was not an accused person, that she appeared to be an innocent victim of circumstances, and that the prosecution would suffer no harm if the vehicle was released. With due respect, those considerations were insufficient. 4. The learned magistrate was required to consider, among other matters; * + 1. **the nature of the offence with which the accused persons were charged;** 2. **the fact that the motor vehicle was the alleged conveyance used in the commission of the offence;** 3. **the provisions of sections 199, 211, 214 and 215 of EACCMA;** 4. **the fact that the criminal proceedings were still pending;** 5. **the evidence already placed before the court concerning the contents of the vehicle;** 6. **the potential evidential and forfeiture consequences of releasing the conveyance;** 7. **whether the proposed conditions were legally capable of preserving the statutory purpose of detention; and** 8. **whether the applicant's interest as registered owner, though relevant, outweighed the statutory and evidential considerations arising from the pending prosecution.** 5. The ruling does not demonstrate a proper balancing of those competing considerations. 6. Instead, the learned magistrate appears to have treated the applicant's status as a third party and registered owner as substantially determinative. That was a material misdirection. 7. **Innocent ownership** 8. The fact that the applicant was not an accused person and claimed not to have participated in the offence was certainly a relevant consideration. 9. It was not, however, determinative of whether the conveyance could lawfully remain detained. 10. **Section 217(1) EACCMA** expressly provides that condemnation of a thing seized as liable to forfeiture is not affected merely by the fact that the owner was not concerned with the act which rendered the thing liable to forfeiture. The High Court has recognised that absence of personal involvement by the owner does not, by itself, defeat the statutory forfeiture regime. 11. The Court of Appeal in Warsame case also considered section 217(1) in the context of the rights of an owner who was not involved in the offence. 12. Consequently, the learned magistrate fell into error in treating the applicant's non-involvement in the criminal proceedings as effectively resolving the question of whether the vehicle should be released before determination of the case. 13. **The conditions imposed by the trial court** 14. The conditions that the motor vehicle logbook be deposited in court and that the applicant should avail the motor vehicle when required were, with respect, insufficient to cure the error in any case we have since transitioned to a virtual electronic motor vehicle logbook regime. 15. The vehicle was not merely relevant because of its ownership. It was the alleged instrument/conveyance used in the transportation of the goods forming the subject matter of the charge. Its physical condition, identity, and availability may therefore be material to the prosecution and to any eventual order that the court may be required to make upon determination of the case. 16. Depositing the log-book does not preserve the physical exhibit. Neither does a general undertaking to produce the vehicle whenever required provide the same degree of security as continued detention of the conveyance. 17. The trial court therefore did not sufficiently address the practical consequences of releasing the vehicle while the criminal proceedings were still underway. 18. **The importance of the statutory procedure** 19. The record further demonstrates that, counsel for KRA specifically drew the attention of the trial court to the EACCMA statutory framework and cited the relevant provisions and authorities. The trial court was therefore seized of the objection. 20. Nevertheless, the ruling did not adequately engage with the statutory provisions relied upon by KRA. 21. A judicial officer exercising discretion cannot disregard an applicable statutory regime merely because another consideration appears equitable or convenient. 22. Where Parliament has established a specific statutory framework for seizure, detention and forfeiture, the court must exercise its discretion within that framework. 23. Where a statute prescribes a procedure then that procedure ought to be followed. See **Republic v Commissioner of Customs & Excise ex parte Abdi Gulet Olus [2014] KEHC 3709**, where the Court emphasised the elaborate statutory procedure under EACCMA for dealing with seized property. 24. **The effect of the Court of Appeal decision in Warsame** 25. This Court is alive and conscious that Warsame case does not establish an absolute prohibition against release or forfeiture of a vehicle before the end of the trial in every circumstance. 26. On the contrary, the Court of Appeal held that section 199(iii) confers discretion that must be exercised upon proper consideration of the evidence and the applicable statutory framework. 27. The question before this Court is therefore not whether forfeiture was mandatory. It was not. 28. The question is whether, having recognised the existence of discretion, the learned magistrate exercised it on proper principles. In my considered view, he did not. 29. The failure to properly consider the statutory consequences attaching to a conveyance used in the alleged commission of an EACCMA offence amounted to a material misdirection. 30. **Finding** 31. I accordingly find that the impugned Order by Hon. P.C. Biwott, Chief Magistrate, on 15th July 2026 suffers from incorrectness and impropriety within the meaning of section 362 of the Criminal Procedure Code. 32. The trial court was entitled to consider the applicant's ownership and economic hardship. It was also entitled to consider whether continued detention was necessary. 33. However, those considerations had to be weighed against the statutory regime governing the very subject matter of the application. The ruling does not demonstrate that such a balancing exercise was undertaken. The discretion was therefore not exercised judicially. 34. **Orders** 35. Consequently, and pursuant to sections 362 and 364 of the Criminal Procedure Code, I make the following orders; 36. **The Order of the Chief Magistrate's Court at Busia made on 15th July 2026 in Criminal Case No. E289 of 2026 directing the release of motor vehicle registration number KAV 835R is hereby set-aside.** 37. **The motor vehicle registration number KAV 835R shall remain detained in accordance with the applicable provisions of the East African Community Customs Management Act pending determination of the criminal proceedings or further lawful orders of the trial court.** 38. **The applicant's status as registered owner and her claim that she was not involved in the alleged offence shall remain open for determination in accordance with the applicable statutory procedure and shall not, by this ruling, be construed as a finding of guilt or culpability against her.** 39. **Nothing in this ruling shall be construed as determining the ultimate question as to whether motor vehicle KAV 835R should, upon conclusion of the proceedings and consideration of the evidence, be forfeited. That question remains within the jurisdiction of the trial court to determine in accordance with the law and the evidence.** 40. **The original criminal proceedings in Busia CM Criminal Case No. E289 of 2026 shall proceed before the trial court in accordance with the law.** 41. **The lower court record be returned to the Chief Magistrate's Court together with a certified copy of this ruling.** It is So Ordered **Signed, Delivered Virtually on Teams platform** **On this 21st day of August, 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **Hon. Mohochi S.M** **Presiding Judge**