[2021] KEHC 4384 (KLR)
The court found that the trial magistrate erred in releasing the motor vehicles to the respondent without requiring sufficient documentary proof of ownership, as required by Section 8 of the Traffic Act. The application for release should have been made in the traffic cases where the drivers were charged, not in a...
Source-derived case information.
- Citation
- [2021] KEHC 4384 (KLR)
- Parties
- Applicant: Republic; Respondent: Erastus Maina Kagecha
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E146 of 2021
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- Order of the trial magistrate releasing the motor vehicles to the respondent is revised.
- Legal Topics
- Criminal Revision, Ownership of Motor Vehicles, Traffic Offences, Release of Exhibits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Erastus Maina Kagecha
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the trial magistrate erred in releasing motor vehicles to the respondent without sufficient proof of ownership.
- 2 Whether the application for release of the motor vehicles should have been made in the traffic cases where the drivers were charged.
- 3 Whether the trial magistrate overstepped his mandate by granting the orders despite objections and pending warrants of arrest against the drivers.
Ratio Decidendi
The court found that the trial magistrate erred in releasing the motor vehicles to the respondent without requiring sufficient documentary proof of ownership, as required by Section 8 of the Traffic Act. The application for release should have been made in the traffic cases where the drivers were charged, not in a miscellaneous application. The trial magistrate failed to properly scrutinize the documents presented and did not adequately address the objections raised by the applicant. As a result, the order releasing the vehicles was an illegality and warranted revision. The court therefore revised the order, directing the applicants to investigate and establish the rightful ownership of...
Court Disposition
Order of the trial magistrate releasing the motor vehicles to the respondent is revised.
Orders
- The order releasing motor vehicles KAX 661W and KAV 165H to the respondent is set aside.
- Applicants are given a limited period to investigate and establish ownership of the vehicles and report to court.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL DIVISION
CRIMINAL REVISION NO. E146 OF 2021
REPUBLIC..............................................................................................APPLICANT
VERSUS
ERASTUS MAINA KAGECHA.........................................................RESPONDENT
R U L I N G
1. The state/DPP vide letter dated 18th June 2021 applied that Mombasa Chief Magistrates court Misc. CR. Application No. E076 OF 2020 be placed before this court for revision of Orders made on 8th April 2021 releasing motor vehicles Registration KAX 661W and KAV 165H Nissan matatus to Erastus Maina Kagecha the Respondent herein as beneficial owner.
2. The applicant want the said order revised for reasons that the same contravened Section 8 of the Traffic Act as the Respondent didn’t have any records proving he was the owner of the subject motor vehicles. It was also argued that the trial Magistrate overstepped his mandate in granting the orders and failing to take into account the objection raised considering the drivers of the said motor vehicles were facing traffic charges in relation to the 2 vehicles and that they had absconded and warrants of arrest were inforce against them. The application was duly served but there was no response.
3. I have perused the trial courts file and find that indeed the application for release of the motor vehicles ought to have been made in the traffic cases where the drivers were charged.
4. Secondly, I do find that Respondent ought to have shown by way of agreement for sale or otherwise how he was a beneficial owner of the 2 motor vehicles. Mere word of mouth where it was suspected that vehicle was registered in the names of 3rd parties was insufficient. The trial Magistrate ought to have taken initiative to establish particulars of the vehicle even where he thought documents presented were questionable.
5. Releasing the motor vehicles to a party who had no documentary proof of ownership was an illegality and on the account the trial Magistrates order is hereby revised. The applicants are however given limited period of time to establish/investigate ownership or otherwise of the said two vehicles and make a report to court and/or release the 2 motor vehicles to the rightful owner or take appropriate action.
6. Mention on 27/09/2021 for No. 236933, IP Francis Mwangi to file report.
Dated, signedand deliveredinOpen Court /onlinethroughMS TEAMS, this29thday ofJuly, 2021
HON. LADY JUSTICE A. ONG’INJO
JUDGE
In the presence of:-
Ogwel – Court assistant
Ms. Karanja for Applicant
Ms. Omondi Waweru & Co. Advocate for Respondent – No appearance
Hon. Lady Justice A. Ong’injo
Judge