[2019] KEHC 3878 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

MISC. CRIMINAL APPLICATION NO. 9 OF 2019

as consolidated with

MISC. CRIMINAL APPLICATION NO. 159 OF 2018

NOAH TUWEI......................................................................1ST APPLICANT

KEVIN KIPKITAI...............................................................2ND APPLICANT

-VERSUS-

RUTH WACHERA, ASSISTANT COUNTY COMMISSIONER,

NANDI HILLS..................................................................1ST RESPONDENT

DIRECTOR OF PUBLIC PROSECUTIONS...............2ND RESPONDENT

THE ATTORNEY GENERAL........................................3RD RESPONDENT

RULING

[1] Before the Court for determination is the Notice of Motion dated 21 January 2019. It was filed herein by the Applicants pursuant to the provisions of Articles 10, 25, 27, 28, 40, 47, 157, 232, 238 and 244 of the Constitution of Kenya, 2010; Rules 3, 5, 18 and 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013; Sections 118 and 121 of the Criminal Procedure Code, Chapter 75of theLaws of Kenya and other provisions of the law, set out therein. The Applicants sought the following orders:

[a] Spent

[b] That the Court do issue a temporary injunction against the 1st Respondent herein to restrain her from conducting a crackdown on business premises, specifically from raiding, forcefully confiscating betting and gaming machines, disrupting businesses or in any way suspending or closing operations of the Applicants’ businesses.

[c] That pending the hearing and determination of the application, the Court be pleased to issue a temporary injunction against the 1st Respondent to restrain her from burning and/or in any way destroying the Applicants’ 10 gaming and gambling machines; and in particular, from further conducting a crackdown on the Applicants’ business premises situate in Nandi County containing 20 gaming and gambling machines; and from raiding, forcefully confiscating betting and gaming machines, burning, disrupting the Applicants’ business or in any way suspending or closing operations of the Applicants’ business.

[d] That the Court be pleased to issue summons to the 1st Respondent requiring her to give or render proper inventory of the confiscated betting and gaming machines belonging to the Applicants herein.

[e]That all necessary and consequential orders be made that meet the ends of justice in the circumstances of this case.

[f] That the costs of the application be borne by the Respondents.

[2] The application was supported by the affidavit of the 1st Applicant, Noah Tuwei, and was premised on the grounds that the Applicants are businessmen involved in the lawful and licenced business of operating gaming machines in Nandi County; and that on 17 January 2018, the 1st Respondent forcefully raided the Applicants’ business premises and confiscated betting and gaming machines. It was the apprehension of the Applicants that the machines were in imminent danger of destruction or had been stored in unsatisfactory conditions, thereby exposing them to danger of decay and/or depreciation. It was further the contention of the Applicants that the continued detention of the machines would continue to cause them economic loss; and therefore that it is just and expedient that the orders sought be given to ward off imminent irreparable loss.

[3] The application was consolidated with Eldoret High Court Miscellaneous Criminal Application No. 159 of 2018 between the same parties, involving the 1st Applicants business premises in Naiberi and Maili Nne Centres in Uasin Gishu County and Iten Town in Elgeyo Marakwet County. When the matter came up for hearing on 2 July 2019, Counsel for the Applicants abandoned prayers [1], [2] and [3] of the Notice of Motion as spent, and made arguments in favour of Prayer 4 only. He accordingly prayed that summons be issued to the 1st Respondent requiring her to give or render proper inventory of the confiscated betting and gaming machines belonging to the Applicants herein.

[4]Counsel further submitted that there is a procedure set out in Section 118 and 121 of the Criminal Procedure Code for the disposal of confiscated property; which procedure was not used in this instance; thereby exposing the Applicants to loss and irreparable damage. He cited the cases of Jubiliee Insurance and Mereka & Co. Advocates vs. Invesco Insurance [2015] eKLR in urging the Court to allow the application with costs as no response was made to the factual averments set out in the Supporting Affidavits filed by the 1st Applicant.

[5] Mr. Wabwrire,Learned Counsel for the Respondents opposed the application purely on points of law, arguing that the three conditions set out in the case of Giella vs. Cassman Brown have not been met in the Applicants’ case. In his view, the Court is being asked to issue orders in a vacuum as no substantive case has been filed by the Applicants; and therefore that it cannot be said that the Applicants have a prima facie case with probability of success; or that they stand to suffer irreparable damage should the orders sought be declined. It was further the contention of Mr. Wabwire that the Applicants have not demonstrated that they owned the machines; or that they were licenced to operate them, as no documents were exhibited in that regard. He also pointed out that, since the 1st Respondent has jurisdiction only in Nandi County, she cannot be called upon to answer for incidents that occurred in Uasin Gishu or Elgeyo Marakwet Counties. He therefore urged for the dismissal of the application.

[6]In his response to the submissions ofMr. Wabwire, Mr. Bitok,learned Counsel for the Applicants pointed out that, this application having been consolidated withEldoret High Court Miscellaneous Criminal Application No. 159 of 2018,the scope was widened to include the County Commissioner of Uasin Gishu County, who is the 1st Respondent inApplication No. 159 of 2018. He submitted that the Court has powers to do justice to the parties no matter the manner of approach. He relied onKeroche Breweries Ltd & 6 Others vs. Attorney General [2016] eKLRand reiterated the contention of the Applicants that the factual basis of their application has not been refuted.

[7]I have given careful consideration to the application in the light of the averments set out in the Supporting Affidavits and the submissions made herein by learned Counsel. The Applicant having abandoned their prayer for temporary injunction, it is my considered view that the submissions of Counsel for the Respondent are, to that extent, off-target. The issue herein, as I see it, is whether good cause has been shown herein for the Court to have the Respondents summoned to furnish an account; which is what prayer 4 of the applications are about. To that end, the Applicants have demonstrated that their properties were confiscated by the 1st Respondents in both applications and that the machines, which in their contention had money in them, have been disposed of by way of burning, without recourse to the procedure for disposal of such machines as set out inSections 118 and 121 of the Criminal Procedure Code.

[8]No response was made by either the 1st Respondent herein or the 1st Respondent inEldoret High Court Miscellaneous Criminal Application No. 159 of 2018;and therefore, the Applicants averments are unrebutted. I am satisfied, on the basis of those averments that sufficient cause has been shown for the issuance of the Orders sought under prayer 4 of the applications. Accordingly, it is hereby ordered that:

[a] the 1st Respondent herein and the 1st Respondent in Eldoret High Court Miscellaneous Criminal Application No. 159 of 2018 be summoned as prayed to attend Court for the purpose of or rendering a proper inventory of the confiscated betting and gaming machines belonging to the Applicants herein.

[b] That costs of the application to be in the cause.

It is so ordered.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 17TH DAY OF SEPTEMBER 2019

OLGA SEWE

JUDGE