[2008] KEHC 3285 (KLR)
The court found that the applicant was not a party to the criminal proceedings in which the forfeiture order was made and was not afforded an opportunity to be heard regarding the forfeiture of his vehicle. This omission constituted a breach of the rules of natural justice and was contrary to section 389(a) of the...
Source-derived case information.
- Citation
- [2008] KEHC 3285 (KLR)
- Parties
- Applicant: Jotham Etiang Rasto; Applicant: Peter Nakitare; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- ? 1 of 2008
- Procedural Posture
- Criminal Review / Ruling
- Outcome
- application allowed
- Judges
- CM Kariuki
- Legal Topics
- Forfeiture of Property, Right to Be Heard, Natural Justice, Criminal Review Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jotham Etiang Rasto
Applicant
Peter Nakitare
Applicant
Republic
Respondent
Procedural Posture
Criminal Review / Ruling
Legal Issues
- 1 Whether the forfeiture order against the applicant's vehicle was lawful given that the applicant was not a party to the criminal proceedings.
- 2 Whether the applicant was denied the right to be heard before the forfeiture order was made.
Ratio Decidendi
The court found that the applicant was not a party to the criminal proceedings in which the forfeiture order was made and was not afforded an opportunity to be heard regarding the forfeiture of his vehicle. This omission constituted a breach of the rules of natural justice and was contrary to section 389(a) of the Criminal Procedure Code. The court held that the forfeiture order was improper in the circumstances and should be reversed, ordering the release of the vehicle to the applicant.
Court Disposition
application allowed
Orders
- The order dated 30/01/2008 forfeiting Lorry Reg. No. KAH 516 E in Kitale CMCR. Case No.3454 of 2007 is reversed.
- Lorry Reg. No. KAH 516 E shall be released to the applicant forthwith without charge.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITALE
Criminal Review 1 of 2008
PETER NAKITARE
JONAM ETIANG RASTO ===========================APPLICANTS
V E R S U S
REPUBLIC ===================================RESPONDENT
R U L I N G
The applicant, JOTHAM ETIANG RASTO, was not an accused in Kitale Cr. Case No.3454 of 2007 in which one Peter Nakitare was charged with the offence of transporting Forest produce contrary to section 52 (a) as read with section 52 (20 of the Forest Amendment Act 2005 of the laws of Kenya. The latter was found guilty convicted and fined Shs.50, 000/= and in default six months imprisonment. As the forest produce was found too have been transported in motor vehicle registration No. KAH 516E (which belonged to the applicant), the trial court ordered its forfeiture.
In his application dated 31/1/2008, the applicant averved that he was not given an opportunity to be heard before the order for forfeiture was made and that the applicant was not an accused person in the Criminal Case No.3454 of 2007 in which the forfeiture order was made.
When the application came up for hearing on 6/3/2008, Mr. Maliro learned counsel for the applicant urged the court to set aside the forfeiture. Mr. Mutuku the learned Senior Principal State Counsel conceded the application on the grounds that the order for forfeiture was against section 389 (a) of Cap 75. He observed that the applicant was not a party to the criminal case and was not given an opportunity to be heard with regard to forfeiture. In his view, the rules of natural justice with regard to the right to be heard were not observed.
I have perused the application herein and the affidavit sworn on 31/1/2008 by the applicant. No replying affidavit was filed by the Respondent and the averments of fact in the applicant’s affidavit remain uncontroverted. The applicant was not privy to the Criminal Case No.3454 of 2007. He was not given an opportunity to be heard when the forfeiture was being ordered. I am satisfied that the order forfeiture was in the circumstances of this case improper.
In the circumstances, I reverse the order dated 30/01/2008 forfeiting the Lorry Reg. No. KAH 516 E in Kitale CMCR. Case No.3454 of 2007 and order that the said Lorry Reg. No. KAH 516 E shall be released to the applicant forthwith without charge.
It is so ordered.
Dated at Kitale on 11th March 2008.
G.B.M. KARIUKI
JUDGE
11/3/2008
11/3/2008
Coram G.B.M KARIUKI – JUDGE
John Ngitira – C/Clerk
Mr. Maliro for the Applicant
Mr. Mutuku for the Respondent
Court: - Ruling read in open court at 2. 30 p.m. on 11/3/2008 in the presence of both counsel.
G.B.M. KARIUKI
JUDGE
11/3/2008