[2018] KEHC 6172 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

JUDICIAL REVIEW NO. 4 OF 2018

AND

IN THE MATTER OF AN APPLICATION BY MILKA JEPKOSGEI SONGOK FOR ORDER OF LEAVE TO APPLY FOR ORDERS OF JUDICIAL REVIEW

AND

IN THE MATTER OF SECTION 3,4,5,7,9,10 &11 OF THE FAIR ADMINISTRATION ACTION ACT AND FOREST CONSERVATION AND MANAGEMENT ACT 2016 SECTION 40 AND SECTION 47 OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF MOTOR VEHICLE KCD 379N

REPUBLIC............................................................................................APPLICANT

VERSUS

THE ATTORNEY GENERAL.................................................1ST RESPONDENT

KENYA FOREST SERVICE..................................................2ND RESPONDENT

THE DIRECTOR OF PUBLIC PROSECUTIONS..............3RD RESPONDENT

THE CHIEF MAGISTRATE, KAJIADO LAW COURTS....4th RESPONDENT

RULING

By a notice of motion filed in court on 23:4:2018 the applicant sought that the order on forfeiture of the motor vehicle registration KCD 379N issued on 12th March 2018 be quashed and set aside. The applicant relied on order 53 rule 3 and 4 of the Civil Procedure rules 2010, section 8 and 9 of the Law Reform Act.

In support of the revision the applicant relied on the affidavit and the attached record of the trial court. According to the affidavit she owns the subject motor vehicle registration number KCD 379N that she came to learn of the forfeiture of her motor vehicle after the criminal proceedings in Criminal case No. 349 of 2018.

Mr. Itaya for the applicant has argued that the order on forfeiture issued and signed by the trial Magistrate was in contravention of section 3,4,5,7,9,10and 11 of the Fair Administrative Act Article 40 and 47 of the Constitution and section 68 of the Forest Conservation and Management Act 2016. Learned counsel prayed for the review on setting aside of the forfeiture order.

Mr. Akula for the respondent conceded to the application as filed by the applicant.

How does the matter before this case arise?

On 12th March 2018 Charles Kiptoo was indicted and arraigned before the Chief Magistrate Court with the offence of removing any forest produce contrary to section 64 (1) (a) as read with section 64 (2) of the Forest Act 2016. The particulars of the charge were that on the 9th March 2018 along Namanga-Nairobi road in Kajiado Central Sub-county the accused was found transporting 4 bags of charcoal using motor-vehicle registration No. KCD 379N make Probox without a permit from the Director of Kenya Forest Service for the year 2018.

On his own plea of guilty the accused was convicted and sentenced to a fine of Kshs. 60,000/=. In default six months imprisonment. In addition to this sentence, the trial court forfeited the motor vehicle to the Forest Conservator.

The last order is what is a subject matter in these revision proceedings.

Analysis and Decision

It is appropriate at this stage to take cognizance of the statutory provisions pertaining to revisional jurisdiction of this court. Section 362 of the CPC provides as hereinunder:

“The High court may call for and examine the record of any criminal proceedings before any 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 of any such subordinate court.”

From the provisions of this section any person aggrieved by an order or proceedings passed or entertained by the subordinate can apply to the High court to exercise revisional jurisdiction. The provision is also available to the High court at any one time on its own motion to call for and examine the record in respect to the order passed or proceedings taken by the trial court. With this the law does vest power in the high court to exercise jurisdiction in matters arising in the course of or after the proceedings in the subordinate court to either interfere, reverse or affirm the sanctity of the proceedings or order.

Looking at the record of the trial court though no provisions of the law was referred to by the learned trial magistrate, this case seems to arise within the scope of section 68 of the Forest Conservation and Management Act.

The section provides that:

“Where a person is convicted of an offence of damaging, injuring or removing forest produce from any forest, the forest produce shall be forfeited to the owner.”

The court may in addition to any other ruling order: (a) That such person pays to the forest owner by way of compensation of a sum equal to the determined value of the forest produce so damaged, injured or removed and where the value cannot be estimated ten thousand shillings for each offence. (b) If it is proved to the satisfaction of the court that the person so convicted is the agent or employee of another person; that other person to pay by way of compensation to the forest owner, the value of the forest produce, unless after hearing that other person, the court is satisfied that the offence was not due to his negligence or default. (c) The vessels, vehicles, tools or implements used in the commission of the offence be forfeited to the service. Provided that the value of the forest produce shall be either the commercial value of the forest produces or the cost of the offence committed, whichever is higher.”

It is apparent from section 68 of the Act that trial magistrate in addition to imposing fine or imprisonment has other penalties to compensate the owner of the forest produce injured, damaged or removed. While dealing with section 68 it is clear from the language the overall objective is to compensate for the loss or damage incurred during the commission of the offence.

As regards sub-section (b) the language of the section is wide in scope. The formal expression of an adjudication is introduced by the words proved to the satisfaction of the court and unless after hearing that other person quite obviously does vest powers in the trial court to hear a third party who may be an agent or employer of the accused to conclusively determine the rights of the parties. With regard to all matters in controversy.

That is why the Act draws a distinction between section 68 (1) which is couched in mandatory terms contrary to section 68 (a) (b) which provides for the expression of the word may in addition to the order.

As far as the additional orders on compensation or forfeiture is concerned the language of the Act is styled in a discretionally manner. The issue presented in this notice of motion is whether the order on forfeiture of the motor vehicle under section 68 was facially a violation of a constitution right to a fair hearing and procedural due process.

The legal scheme

I begin with the overview of the constitutional provisions. Article 47 (1) provides that

“every person has the right to administrative action that us expeditious efficient, lawful reasonable and procedurally fair. The right to a fair administrative action is also a reflection of the provisions in article 10 on National values and principles of governance such as inclusivity, rule of law, transparency, accountability, equality, etc.

The right to prosecute property is provided under Article 40 of the constitution which provides interalia that the state or any person shall not arbitrarily deprive a person of property of any description or any interest in or right over any description. Sub- section 3 b (11) allows any person who has an interest in or right over that property a right of access to a court of law. Section 4 of the Fair Administrative Action Act No. 4 of 2015 provides that:

“where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person prior and adequate notice of the nature and decisions for the proposed decisions and an opportunity to be heard and make a presentation in that regard”

Section 68 of the Forest Conservation and Management Act provides that:

“any vessel, vehicle, tool or implement seized and delivered to the court may be forfeited to the conservator of forests.”

These are the provisions that will apply in determining this application.

As earlier alluded to elsewhere in this ruling, the word may in addition under this provision indicates a permissive or directory reading rather than mandatory one. That therefore means that with sufficient cause shown by the owner of the seized item the statute provides for a discretionary return of the article or vessel depending on the facts of each case.

In my view this adjudicature proceedings in section 68 are meant to cover situations where the vessel, vehicle or implement allegedly seized was incurred without willful negligence or any blameworthy on the part of the owner of the property. The right to be heard finds itself into the statute to enable the defendant to offer any mitigating circumstances to justify return or restoration of the vessel or vehicle into his or her custody.

I am by no means of the conceded view that the state bears the burden of proof at the hearing on an application on forfeiture to show that the subject motor vehicle used the removal of forest produce under section 64 of the Act should be forfeited to the conservator forest. Section 389 A of the Criminal Procedure Code provides for a more elaborate procedure on notice and due process in circumstances similar to the present case.

I have appraised the evidence it shows that the trial magistrate took an automatic step of forfeiting the motor vehicle rather than conducting a hearing to satisfy herself as to the standard outlined in section 38A of the Criminal Procedure Code.

From the foregoing provisions and discussion, the vehicle in this case was forfeited without any application by the conservator of forest produce or the state. Secondly, the registration and ownership of the motor vehicle remained unknown. Thirdly, the state never discharged the burden of proof by adducing sufficient evidence that the vehicle in question involved in the crime under the Act ought to be forfeited. Additionally, the statute under section 68 of the Act emphasizes the principle of compensation for loss or damage. It also underpins prove to the sufficient of the court before any forfeiture order is granted by the trial court.

Finally, it is also well settled under the same law a hearing be held targeting a third party who is not the accused person before court but has adequate interest in the vessel or item proposed to be forfeited.

I therefore do agree with Mr. Itaya that the applicant was denied due process and right to a fair hearing to challenge the forfeiture of her motor vehicle. The trial court judgement forfeiting the motor vehicle without any judicial hearing was in violation of the statute section 68 as read with section 389A of the Criminal Procedure Code. In any case it is noted that under section 68 the drafters of the law were cognizance of the fact that the forfeiture clause should not be in violence with the principle of proportionality on sentencing.

I have just outlined the legal test of section 68 which sets forth the guidelines to be used by the court when imposing additional orders as punishment for the crime under the Forest Conservation and Management Act.

By the time the learned trial magistrate forfeited the vehicle no inquiry had been done as to compensate the owner of the forest for injury or damage as set forth in the Act.

I would hold that the approach taken by the trial court to go direct for forfeiture and dispensation of the motor vehicle does create unnecessary confusion in the law. The clear distinct approaches and application of the provision should be followed so as to serve the interest of justice.

In taking this position I bear in mind the provisions of section 68 aside from forfeiture, compensation for the loss and damage should be considered as a remedy in addition to any other punishment.

Having said that I am alive with the provisions of section 382 of the CPC which provides that:

“a finding or sentence shall not be altered or reversed on appeal or revision on account of an error omission or irregularity in the order or judgement unless the error, omission or irregularity has occasioned a failure in justice. “

From what I have discussed above the trial magistrate order on forfeiture issued without giving an opportunity to the applicant to be heard was improper, incorrect and irregular that it cannot be cured by the provision of section 382 of the Criminal Procedure Code. A violation to a right to a fair hearing and due process occasioned a failure of justice on the part of the applicant.

In this particular case, the procedural irregularity was elevated to a substantive right that rendered the trial unsatisfactory. The order made therefore in error of the law is in the instant case stands ousted.

I have perused and considered the proceedings before the trial court and I am persuaded that a retrial is not to way to go in this matter. Accordingly, I order that the impugned order having been quashed and set aside, the subject motor vehicle KCD 379N be and is hereby released back to the applicant with no orders as to costs.

Dated, delivered and signed in open court on 21St May, 2018.

………………………………..

R. NYAKUNDI

JUDGE

Representation:

Mr. Itaya for the Applicant

Mr. Akula for DPP

Mr. Mateli: Court Assistant