[2023] KEHC 2343 (KLR)

Mohamed v Laurie & 3 others (Criminal Revision E177 of 2022) [2023] KEHC 2343 (KLR) (Crim) (16 March 2023) (Ruling)

Neutral citation: [2023] KEHC 2343 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E177 of 2022

JM Bwonwong'a, J

March 16, 2023

Between

Irfan Mohamed

Applicant

and

Geoffrey Rowan Jan Laurie

1st Respondent

Newton Kirimi

2nd Respondent

DCI

3rd Respondent

DPP

4th Respondent

(Being an application for revision of the order Hon. C M Njagi, SRM, dated 27th July 2022, Geoffrey Rowan Jan Laurie v Irfan Mohamed & 4 others in Milimani CM’S Court in Misc Criminal Application No. E1770 of 2022)

Ruling

1. On July 29, 2022, the lower court made the following major orders.1. The logbook of motor vehicle registration No KDG 2777J Toyota Hilux be deposited with the investigating police officer 2. Photographs of the said vehicle be taken by the scenes of crime personnel, if they had not been taken.3. The said vehicle be released to the applicant (Irfan Mohamed) within 7 days.4. The said motor vehicle be availed in whenever it is required in the criminal case against the 2nd respondent (Newton Kirimi).

2. These are the orders sought to be revised. For reasons that will appear below in this ruling, I will not set out in detail the contents of the affidavits and the submissions of the parties.

The Case For The Applicant 3. Counsel for the applicant (Ms Morara) submitted the applicant is the registered owner of the subject motor vehicle registration No KDG 2777J Toyota Hilux.

4. She further submitted that there was no sale agreement between the applicant and the 1st respondent.

5. Counsel continued to submit that there was a sale agreement between the applicant and the 2nd respondent. The 2nd respondent took possession of the subject motor vehicle on January 4, 2020.

6. It is the trial court that gave the subject motor vehicle to the 1st respondent on the basis that he had paid for it.

7. Counsel has also submitted that the police should take photographs of the subject motor vehicle and be ordered to release it to the applicant.

The Case For The 1st Respondent 8. Counsel for the 1st respondent submitted that the 2nd respondent sells cars on behalf of his customers. He continued to submit as follows. The 2nd respondent was agent of the applicant. As an agent he sold the subject motor vehicle to the 1st respondent. The 1st respondent fully paid the purchase price in the sum of Kshs 5,500,000/- to the 2nd respondent.

9. The 1st respondent took possession of the subject motor vehicle awaiting the transfer of the ownership of the vehicle to himself from the 2nd respondent.

10. As the 1st respondent was waiting for the transfer of the vehicle from the 2nd respondent, the applicant instructed auctioneers who repossessed the vehicle and took it away.

The Case For The 3rd And 4th Respondent 11. Counsel for the 2nd and 3rd respondents (Ms Chege) submitted as follows. she submitted that the applicant is the registered owner of the subject motor vehicle. She further submitted that initially, the trial court released the vehicle to the applicant. Later the court directed the vehicle to be released to the 1st respondent. She also submitted that they do not support the orders sought to be revised. In other words, she wants the orders to be revised.

12. The respondent is charged with the offence of stealing the subject motor vehicle in the case pending before trial in the lower court.

13. Finally, counsel submitted that the issue of ownership of the motor vehicle should be determined by a civil court.

Issue For Determination 14. I have considered the submissions of the parties in the light of the applicable law.

15. As a result, I find that the only issue for determination is whether the trial court had jurisdiction to order the vehicle to be released to the 1st respondent.

Analysis And Determination 16. It is clear that the applicant claims to be the owner of the subject motor vehicle on the basis that he is the registered owner.

17. The 1st respondent claims ownership of the same subject motor vehicle on the basis that he bought it from the 2nd respondent and fully paid the purchase price. It is submitted by counsel for the 1st respondent that the 2nd respondent was the agent of the applicant.

18. I find that it is common ground that the ownership of the subject motor vehicle is in dispute between the applicant and the 1st respondent.

19. In these set of circumstances, the trial court did not have jurisdiction to determine the ownership of the subject motor vehicle. The trial court was sitting as a criminal court, whose jurisdiction was to determine the guilt or innocence of the accused, before him, who was the 2nd respondent. As a criminal court it would only have jurisdiction over the subject motor vehicle only it had been produced as an exhibit.

20. By returning the subject motor vehicle to the 1st respondent, the trial court had put the entire judicial authority in support of one party (the 1st respondent) to the disadvantage of the other claimant to the ownership of the motor vehicle (the applicant). In doing so, the trial court stopped to be an impartial arbiter and became partisan in the matter. The court was unconsciously serving the interests of the 1st respondent.

21. Even after being produced as an exhibit, a criminal trial does not have jurisdiction to determine the ownership of the exhibited motor vehicle. If any authority was required in that regard, it is to be found in the persuasive decision of the Court of Appeal in Alinyo &another (1974) EA 544. In that case, it was held that disputes concerning the ownership of property should be litigated in a civil court and not in a criminal court.

22. It therefore follows that the trial court lacked jurisdiction to order that the subject motor vehicle be released to the 1st respondent.

23. It is in view of the immediate foregoing reasons that I declined to consider in detail the affidavits and the submissions of the parties. The other reason for declining to delve into the matter and make findings was to avoid any possible prejudice to the pending criminal trial of the 2nd accused/respondent.

24. In the circumstances, I allow the applicant’s application with the result that the orders made by the trial court are hereby set aside.

25. The subject motor vehicle will remain in the custody of the investigating police officer until the criminal trial is heard and determined.

26. By virtue of the orders made by the trial court, that court ceased to be an impartial orbiter. I find that the parties will not have a fair trial in the trial court. I therefore disqualify the learned trial magistrate from trying the criminal case.

27. Consequently, this case will now be tried by another magistrate of competent jurisdiction pursuant to the powers vested in this court by section 364 (1), which provides that:

28. 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.”

JUDGEMENT SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 16TH DAY OF MARCH 2023. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua: Court AssistantMs Morara for the applicantMr. Warutumo for the 1st respondent.Ms Mukhabana for the 2nd Respondent, absentMr. Mutuma for the 3rd and 4th respondents