[2019] KEHC 4322 (KLR)
The court found that the trial magistrate erred by ordering the release of the motor vehicle KCL 393L (trailer) without first determining its role in the alleged offence and without the vehicle being produced as an exhibit. The court emphasized that it is improper to release an exhibit in the abstract, without...
Source-derived case information.
- Citation
- [2019] KEHC 4322 (KLR)
- Parties
- Applicant: Republic; Respondent: John Kyalo Mutisya; Respondent: Moses Wachira Kaburu; Respondent: Mark Matheka
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 7 of 2019
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- Application for revision allowed; order for release of motor vehicle set aside.
- Legal Topics
- Exhibit Release, Revision Jurisdiction, Criminal Procedure Irregularity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
John Kyalo Mutisya
Respondent
Moses Wachira Kaburu
Respondent
Mark Matheka
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the trial court erred in ordering the release of motor vehicle KCL 393L (trailer) before determining its role in the alleged offence.
- 2 Whether an exhibit can be released without confirmation of its existence or production before the court.
- 3 Whether the prosecuting counsel erred in supporting the application for release without consulting the investigating officer.
Ratio Decidendi
The court found that the trial magistrate erred by ordering the release of the motor vehicle KCL 393L (trailer) without first determining its role in the alleged offence and without the vehicle being produced as an exhibit. The court emphasized that it is improper to release an exhibit in the abstract, without confirming its existence or relevance to the proceedings. Furthermore, the prosecuting counsel's support for the release application without consulting the investigating officer was also deemed improper. Consequently, the High Court set aside the order for release and directed that the matter be heard expeditiously by a different magistrate, with strict adherence to proper procedure...
Court Disposition
Application for revision allowed; order for release of motor vehicle set aside.
Orders
- The orders issued on 25th July, 2019 by J.D Karani Resident Magistrate Makindu SPM’s court releasing the motor vehicle (trailer) KCL 393L to the interested party Mukulu David Nzuki are set aside.
- The file to be placed before the SPM Makindu for mention for re-allocation on 19th September, 2019 to any Magistrate besides J.D Karani, Resident Magistrate for hearing and determination.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MAKUENI
HIGH COURT CRIMINAL REVISION NO. 7 OF 2019
REPUBLIC..........................................................APPLICANT
-VERSUS-
JOHN KYALO MUTISYA.....................1ST RESPONDENT
MOSES WACHIRA KABURU ............2ND RESPONDENT
MARK MATHEKA ...............................3RD RESPONDENT
(From the original Ruling before J. D. Karani - Resident Magistrate, case No. SPMCR. no. 513 of 2019 of the SPM’s Court at Makindu on 25-07-2019. )
RULING
1. The State applied for Revision of Orders in Makindu SPM Cr. Case No. 513 of 2019, Republic –vs- John Kyalo Mutisya, Moses Wachira Kaburu and Mark Matheka.
2. The order sought to be reviewed relates to release of a motor vehicle KCL 393L (trailer). It was issued on 25th July 2019 by the Resident Magistrate Makindu – J. D. Karani upon an application being made by Mr. Kasyoka for the 1st and 3rd accused in the said case. The application was made on behalf of Mukulu David Nzuki the owner of the said vehicle and referred to as the interested party. The same was not objected to by the learned prosecuting counsel M/s Nzuki which was an error.
3. The interested party filed a replying affidavit opposing the application by the State.
4. When the application came for hearing on 17th September, 2019, Mr. Kasyoka indicated to the court that the interested party was no longer opposing the application. All she wanted was for the hearing to be expedited so that she gets her vehicle back.
5. Upon the filing of this application the court stayed the order by the Resident Magistrate ordering for release of the motor vehicle KCL 393L (trailer) to the interested party. This court also called for the original file and has perused it.
6. I have clearly observed that the motor vehicle in issue has not been produced as an exhibit before the court. Besides, the registration number cited the trial court does not even know how the vehicle she ordered released looks like.
7. It was therefore an error for the court to make such an order before determining the role played by this trailer in the commission of the offence that was before the said court.
8. Secondly, the court could not release an exhibit in the abstract without even confirming its existence, and/or even seeing it.
9. It was also wrong for the prosecuting counsel to support the application without consulting the investigating officer in the matter.
10. For the above reasons;
i. I hereby set aside the orders issued on 25th July, 2019 by J.D Karani Resident Magistrate Makindu SPM’s court releasing the motor vehicle (trailer) KCL 393L to the interested party Mukulu David Nzuki.
ii. The file in respect to this matter to be placed before the SPM Makindu for mention for re-allocation on 19th September, 2019 to any Magistrate besides J.D Karani, Resident Magistrate for hearing and determination.
iii. Let the trial court hear and determine the matter expeditiously since it involves a motor vehicle whose owner is not a party to the proceedings.
iv. In the event that there is need to release the motor vehicle in issue, the proper procedure must be strictly adhered to.
Orders accordingly.
DELIVERED, SIGNED & DATED THIS 18TH DAY OF SEPTEMBER 2019, IN OPEN COURT AT MAKUENI.
……………………………….
H. I. ONG’UDI
JUDGE