[2022] KEHC 12988 (KLR)

Office of the Director Of Public Prosecutions & another v Rotino & 2 others (Criminal Review E029 of 2022) [2022] KEHC 12988 (KLR) (12 September 2022) (Judgment)

Neutral citation: [2022] KEHC 12988 (KLR)

Republic of Kenya

In the High Court at Kapenguria

Criminal Review E029 of 2022

WK Korir, J

September 12, 2022

Between

Office of the Director Of Public Prosecutions

1st Applicant

Kenya Revenue Authority

2nd Applicant

and

Leonard Pkerker Rotino

1st Respondent

Anest Emmule

2nd Respondent

Geoffrey Musto

3rd Respondent

Judgment

1. Through the notice of motion dated April 13, 2022, the 1st Applicant, the Office of the Director of Public Prosecutions and the 2nd Applicant, Kenya Revenue Authority, seek orders as follows:a.Spent;b.Spent;c.Spent;d.That this Honorable Court be pleased to call for and examine the record of the Principal Magistrate in Kapenguria Criminal Case No. E168 of 2022: Republic vs. Leonard Pkerker Rotino & 2 others;e.That upon examination of the record, this Honorable Court be pleased to revise, vary, set aside and/or discharge the orders of Hon. M. M. Nafula, PM issued on March 25, 2022 in Kapenguria Criminal Case No. E168 of 2022: Republic vs. Leonard Pkerker Rotino & 2 others;f.That this Honorable Court be pleased to make any other order or relief as it may deem just and fair to meet the ends of justice.

2. The application which is supported by the affidavit of Police Constable James Nyagemi is premised on grounds that Leonard Pkerker Rotino, Anest Emmule and Geoffrey Musto who are the respective 1st to 3rd respondents were arrested and charged in Kapenguria Principal Magistrate’s Court Criminal Case No. E168 of 2022 with offences under the East Africa Community Customs Management Act, 2004 (EACCMA). The applicants aver that the 1st Respondent faced three counts while the 2nd and 3rd respondents faced two counts which they all pleaded guilty to and were sentenced accordingly.

3. The applicants fault the trial magistrate for releasing motor vehicle KCS 009Z which was used to convey the prohibited goods for which the respondents were convicted arguing that she failed to appreciate sections 211(1) and 215 ofEACCMA. The applicants’ case is that upon conviction of the respondents, the motor vehicle automatically stood condemned.

4. The respondents opposed the application through a replying affidavit sworn by the 1st Respondent on May 19, 2022. Their averment is that upon pleading guilty to the charges and tendering their mitigation, the 1st and 2nd respondents were fined while the 3rd Respondent who was a minor was discharged under Section 35(1) of the Penal Code. Further, that the goods were forfeited to the State while the motor vehicle was released to Masol Enterprises Ltd and NIC Bank Ltd being the registered owners. It is the respondents’ case that the registered owners of the motor vehicle were not parties to the criminal proceedings and none of them had been found guilty of any offence. They assert that the trial court did not err in releasing the motor vehicle to the owners since they had no notice of the case nor were they convicted of any offence. According to the respondents, the release order was premised on the evidence on record. This Court is therefore urged to dismiss the application and uphold the decision of the trial court.

5. In their submissions dated June 21, 2022, the applicants identified two issues for the determination of this Court. First, the applicants submitted that the trial magistrate erred in failing to follow the legal procedure in releasing the motor vehicle. It is their submission that under Section 389 of the Criminal Procedure Code, the trial magistrate was required to invite the owners of the motor vehicle to show cause why the vehicle should not be forfeited under sections 211 and 215 of EACCMA. In support of their argument, the applicants relied on this Court’s decision in Kenya Revenue Authority v Joseph Namwai Lotiki & 2 others; Office of the Director of Public Prosecutions (Interested Party) [2022] eKLR. Second, the applicants submitted that the motor vehicle ought to be forfeited to the State since the 1st Respondent is a director of Masol Enterprises which is one of the two companies that owns the motor vehicle. The applicants relied on Section 23 of the Penal Code to argue that the 1st Respondent being a director of Masol Enterprises used a motor vehicle belonging to the entity in which he is a director with knowledge that the same could be liable to forfeiture. The applicants also relied on the case of Rebecca Mwikali Nabutola v Republic [2016] eKLR to urge this Court to find that the Masol Enterprises is culpable in connection with the offence in which the 1st Respondent was charged and therefore the motor vehicle should not be released but should be forfeited to the State. Finally, the applicants submitted that the orders of the trial court should be vacated because they continue to offend the provisions of sections 200(d)(ii) and 215 of theEACCMA.

6. On their part, the respondents filed submissions dated May 30, 2022and supplementary submissions dated June 30, 2022. In the two sets of submissions, the respondents submitted on three issues. First, the respondents submitted that Section 215 as read with sections 199(c)(iii), 210(1) and 211 of EACCMA granted the trial court discretion on the forfeiture of the chattel conveying uncustomed goods. Reliance was placed on the case of Joseph Namwai Lotiki (supra) in support of the submission. The respondents cited the decision of the Court of Appeal in Caroline Auma Majabu v Republic [2014] eKLR and urged this Court to be guided by that decision in interpreting the words used in the various sections of EACCMA.

7. The second issue submitted on by the respondents is whether the trial court exercised its discretion lawfully and reasonably in ordering the release of the motor vehicle. The respondents argued that under Section 389A (2) of the Criminal Procedure Code, once a court is satisfied that the owner of a property is not guilty of an offence, then the property should not be forfeited. They asserted that there was no attempt by the prosecution to link the owners of the motor vehicle to the offence committed by the respondents. In their view, the trial court was obliged to order the release of the motor vehicle to the owners owing to the failure by the prosecution to link the owners of the motor vehicle to the offences.

8. Finally, the respondents submitted that sections 215(1) and 217(2)(a) of EACCMA are null and void to the extent that they prescribe a mandatory sentence and therefore violate the right of accused persons to fair hearing and dignity. The respondents submitted that sections 215(1) and 217(2)(a) of EACCMA should be read and interpreted in a manner that conforms to Articles 28 and 50 of the Constitution. In support of this argument, the respondents relied on the decision in Machakos HC Petition No. E017 of 2021 Philip Mueke Maingi & 5 others v Director of Public Prosecutions & another.

9. Upon perusal of the pleadings and submissions of the parties, the only question for the determination of this Court is whether the trial magistrate erred in ordering the release of the motor vehicle to the registered owners.

10. It is the applicants’ position that the trial court did not comply with the requirements of Section 389 of the Criminal Procedure Code. The applicants further argue that the trial magistrate was required to invite the owners of the said motor vehicle to show cause why it should not be forfeited as required by sections 211 and 215 ofEACCMA.

11. Section 211(2) of EACCMA provides for the forfeiture of any object used to transport or handle goods liable to forfeiture as follows:211. (1) A vessel of less than two hundred and fifty tons register, and any vehicle, animal, or other thing, made use of in the importation, landing, removal, conveyance, exportation, or carriage coastwise, of any goods liable to forfeiture under this Act shall itself be liable to forfeiture.

12. In Joseph Namwai Lotiki (supra), when faced with a similar argument from the 2nd Applicant, I held that Section 211(1) of EACCMAgives discretion to the trial court on the issue of the forfeiture of the chattel conveying uncustomed goods. The applicants have not persuaded me otherwise. The trial court retains the discretion to determine whether or not the object used to convey uncustomed goods should be forfeited.

13. In the stated decision, I also considered the provisions of Section 215 of EACCMA and held as follows:“My understanding of Section 215 of EACCMA is that once a conviction has been entered, then there is no need for other proceedings to have the carrier of the goods liable to forfeiture condemned. The conviction by itself is sufficient. However, where a person steps forward to ask for the thing to be released to him, then the trial court has a duty to consider the application and make a determination hence giving life to the meaning of the words “liable to forfeiture” in Section 211 of EACCMA.”

14. In the proceedings which are the subject of this application for review of the magistrate’s order, the record shows that the motor vehicle was indeed produced as an exhibit. A perusal of the trial court’s proceedings also shows that the court, on its own motion, made an order for the release of the motor vehicle to the owners. There is no evidence that any of the owners of the said motor vehicle applied to the court for the release of the motor vehicle. It is my view that by suo moto ordering the release of the motor vehicle, the trial magistrate violated the procedure hence denying the applicants an opportunity to state whether they were pursuing the forfeiture of the motor vehicle or not.

15. In Joseph Namwai Lotiki (supra), I had this to say about the forfeiture procedure under the EACCMA:“43. The question is whether Section 211(1) of EACCMA provides for mandatory forfeiture of any carrier of goods liable to forfeiture. A reading of the provision which the Applicant cites in support of the argument for automatic forfeiture upon conviction shows that the words used are “liable to forfeiture.” As already stated in this judgement, the use of the term “liable” leaves the decision of whether to forfeit or not in the hands of the trial court. That means the question of forfeiture squarely fell within the jurisdiction of the Trial Court. It is, however, important to note that whether the thing conveying the condemned goods will be forfeited will be determined by the circumstances of each case. …45. … My understanding of Section 215 ofEACCMA is that once a conviction has been entered, then there is no need for other proceedings to have the carrier of the goods liable to forfeiture condemned. The conviction by itself is sufficient. However, where a person steps forward to ask for the thing to be released to him, then the trial court has a duty to consider the application and make a determination hence giving life to the meaning of the words “liable to forfeiture” in Section 211 of EACCMA. …48. I have perused the proceedings and it is clear that the prosecutor produced as an exhibit the motor vehicle that had been used to commit the offences with which the 1st and 2nd respondents were charged and convicted. Upon conviction of the 1st and 2nd respondents there was no need for any other order for the motor vehicle to stand condemned.49. In the circumstances it fell upon the 3rd Respondent to persuade the Trial Court not to forfeit the motor vehicle to the Applicant. I do not buy the argument by the Applicant that the Trial Court became functus officio upon passing the sentence. In the case at hand, the 3rd Respondent had stepped forward and identified himself as the owner of the motor vehicle in question. In such a situation the Trial Court was required to consider the application of the 3rd Respondent in order to determine if the motor vehicle was to be forfeited or not. It is during such post-sentencing proceedings that the claimant identifies the thing seized as his and demonstrates why it should not be forfeited to the revenue agency.50. The right to a hearing is not only reserved for the person whose thing has been condemned. The tax collector is also entitled to demonstrate by pointing to the court record that the owner of the condemned thing intimately knew of the tax crime and that the thing used in the commission of the crime should therefore be forfeited. Where the prosecution intends to pursue the forfeiture of the aircraft, vessel, motor vehicle, animal or thing used to convey goods liable to forfeiture, it must adduce evidence during the prosecution of its case to support such forfeiture. It is only after both sides have been heard that the trial court can determine whether the aircraft, vessel, motor vehicle, animal, or other thing used to transport the goods liable to forfeiture should be forfeited.”

16. I have perused the trial court record and find that after convicting the respondents the trial magistrate proceeded to order the forfeiture of the uncustomed goods to the State and the release of the motor vehicle to Masol Enterprises. In my view, the motor vehicle was already condemned by operation of the law and the same could only be release upon the owners successfully moving the trial court to lift the condemnation. Forfeiture proceedings are distinct and separate from sentencing proceedings. The orders of the trial magistrate clearly violated the applicants’ right to argue their case for confirmation of the condemnation that had occurred pursuant to Section 215 of EACCMA.

17. There was the argument by the respondents that the mandatory nature of the provisions ofEACCMA are unconstitutional. On this, I only need to point the respondents to my decision in Joseph Namwai Lotiki (supra) in order for them to appreciate that forfeiture of the thing conveying the condemned goods is discretionary. I need not say more on this argument.

18. Considering what I have stated above, it follows that the applicants’ application for review should succeed. The order for the release of the motor vehicle was issued without giving them an opportunity to state why the statutory condemnation of the motor vehicle should be sustained.

19. In the circumstances, the application succeeds to the extent that the order issued on March 25, 2022 by Hon. M.M. Nafula, PM in Kapenguria Criminal Case No. E168 of 2022, Republic v Leonard Pkerker Rotino & 2 others directing the release of motor vehicle registration number KCS 009Z to Masol Enterprises Ltd is set aside. This means that the motor vehicle remains condemned in accordance with the provisions of Section 215 of EACCMA.

20. The owners of motor vehicle registration number KCS 009Z are, however, at liberty to seek the lifting of the condemnation before the trial court. Considering that the order that is the subject of these proceedings was made by the trial court without the application of any of the parties, I direct that the time given to the owners to seek the release of the motor vehicle shall start running from the date of this decision.

DATED, SIGNED AND DELIVERED AT KAPENGURIA THIS 12TH DAY OF SEPTEMBER, 2022. W. KORIR,JUDGE OF THE HIGH COURT