[2022] KEHC 365 (KLR)

Republic v Juma & 2 others (Criminal Revision E160 of 2021) [2022] KEHC 365 (KLR) (13 May 2022) (Judgment)

Neutral citation: [2022] KEHC 365 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Revision E160 of 2021

JM Mativo, J

May 13, 2022

Between

Republic

Applicant

and

Hassan Juma

1st Respondent

Yusuf Shinga

2nd Respondent

Sofia Kassim Salimu

3rd Respondent

Judgment

1. By a Notice of Motion dated 1st September 2021, the Republic/applicant prays that this court makes such orders as it deems fit, fair and just in the circumstances. Prayers (1) & (2) of the application are spent. The application is founded on the grounds on the face of the application and the supporting affidavit of PC Musa Amakobe annexed thereto dated 1st September 2021.

2. The grounds in support of the application are that the 1st and 2nd Respondents are facing charges of trafficking in narcotic drugs contrary to section 4 (a) of the Narcotic Drugs and Psychotropic Substance Control Act in criminal case number E 979 of 2021, Republic v Hassan Juma and Yusuf Shinga. The applicant states that on 17th April 2021, the two accused persons were found ferrying the narcotics drugs using motor vehicle registration number KBF 794 A, Toyota Vitz and a seizure notice of the motor vehicle was issued to the two accused persons and the motor vehicle was handed to the custody of the DCIO Jomvu Sub-County pending trial. The applicant states that on 28th April 2021 upon a search at the National Transport and Safety Authority the record confirmed the motor vehicle registration number KBF 794 Make Toyara Virz is owned by a one Loren Sophia Kalume.

3. The aplicant states on 16th July 2021, the said Sofia Kassim Salim filed miscellaneous criminal application number E290 of 2021 seeking release of the said motor vehicle as the owner and in support of the application, she annexed a copy of the logbook for the said vehicle, but the date of registration of the logbook was 7th July 2021 when the said vehicle was already in the custody of the DCI, Jomvu Sub- County.

4. The applicant states that it objected to release of the said motor vehicle on grounds that it was an exhibit in criminal case number E979 of 2021 and it was yet to be identified and produced, but in a ruling delivered on 26th August 2021 the trial court allowed the release of the said motor vehicle. The applicant states that under sections 75 and 78 of theNarcotic drugs and Psychotropic Substances Act, the said vehicle is upon conviction of the accused persons susceptible to forfeiture. The applicant contends that the release of the vehicle will prejudice the prosecution case since its yet to be identified and also the ownership of the motor vehicle is questionable. Lastly, the applicant says that the Respondents will not be prejudiced.

5. The application is opposed. On record is the Replying affidavit of Sofia Kassim Salimu, the 3rd Respondent dated 16th November 2021. She deposed that Loreen Sophia Kalume was the registered owner of the said motor vehicle at time of seizure and she was the beneficial owner. She averred that the ownership of the said vehicle is not disputed and that the said Loreen Sophia Kalume was summoned to the police station and she confirmed having disposed the motor vehicle and there has never been a dispute of ownership nor has it ever been reported as stolen.

6. Further, she averred that much as it will be used as an exhibit, photographs can be taken and used as exhibits, and that, the orders granted on 26th August 2021 are reasonable. Lastly, she deposed that the detention of the vehicle and disuse exposes it to extreme weather conditions and may possible engine failure.

7. Both parties filed written submissions. The nub of the applicant’s submissions is that the motor vehicle is an exhibit in Criminal case number E979 of 2021 and that it is yet to be identified and produced as such. The applicant relied on Republic v Everlyne Wamuyu Ngumo1in which the High Court faulted lower courts order releasing a motor vehicle which was an exhibit in a pending criminal trial and set it aside. It was the applicant’s submission that the said motor vehicle is an integral part of proving the criminal case against the accused persons and in discharging the prosecutions evidential burden. Further, the applicant submitted that the said motor vehicle is subject to forfeiture upon conviction of the accused persons in accordance with section 78 of the Narcotics Drugs and Psychotropic Substances Act.1Criminal Revision No. 138 of 2016-Embu

8. The Respondents submitted that the application is incompetent, unmeritorious and an abuse of court process. They submitted that the order directing the release of the motor vehicle was served upon the DCIO Jomvu, but it was ignored and that the instant application was filed to frustrate the Respondents. They urged the court to note that they were charged with trafficking 0. 5 grama of heroin and 24. 7 grams of bhang with a combined total value of Kshs. 2,292/=. Further, they argued that it’s outrageous to conclude that the vehicle was proceeds of crime and urged the court to up hold the decision of the lower court.

9. Section 362 of the Criminal Procedure Code2 vests this court with power to call for the record or proceedings of the subordinate courts and satisfy itself as to the legality or propriety of any order, judgement or proceedings passed. In exercising the said powers, this court enjoys the same powers as when hearing an appeal. Parliament in its wisdom provided a mechanism of examining the propriety or legality of orders/judgments/proceedings issued by subordinate courts in criminal cases as a safeguard to ensure that criminal processes are undertaken fairly and in a manner that protects the rights of accused persons.2Cap 75, Laws of Kenya.

10. Supervisory jurisdiction refers to the power of superior courts of general superintendence over all subordinate courts. Through supervisory jurisdiction, superior courts aim to keep subordinate courts within their prescribed sphere, and prevent usurpation. In order to exercise such control, the power is conferred on superior courts to issue the necessary and appropriate writs.33Gallagher v. Gallagher, 212 So. 2d 281, 283 (La. Ct. App. 1968).

11. This power of superintendence conferred by Article 165 (6) of the Constitution, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. v Sukumar Mukherjee4 is to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors. This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with an unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes. As the Supreme Court of India stated unless there is a grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under Article 165 (6) of the Constitution to interfere.54AIR 1951 Cal. 193. 5See D. N. Banerji v. P. R. Mukherjee1953 SC 58.

12. Courts derive their power from the Constitution and the statutes that regulate them. The jurisdiction of each hierarchy of the courts is limited within the boundaries of the written law apart from the High Court which is sometimes said to have inherent jurisdiction to do things not specifically provided for. Historically, the high court, in addition to the powers it enjoyed in terms of statute, has always had additional powers to regulate its own process in the interests of justice. This was described as an exercise of its inherent jurisdiction. Useful guidance can be obtained from Freedman C J M, citing I H Jacob Current Legal Problems who adopted the following definition of ‘inherent jurisdiction’6though writing in the context of civil cases:-6Montreal Trust Co v Churchill Forrest Industries (Manitoba) Ltd1972 21 DLR (3d) 75 at 81 quoting I H Jacob, Current Legal Problems (1970) p 51. “. . . the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, and in particular to ensure the observance of the due process of the law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them…”

13. Jerold Taitz, in his book, The Inherent Jurisdiction of the Supreme Court7 succinctly describes the inherent jurisdiction of the high court as follows: -7Jerold Taitz, University of Cape Town, Juta, 1985. “. . .This latter jurisdiction should be seen as those (unwritten) powers, ancillary to its common law and statutory powers, without which the court would be unable to act in accordance with justice and good reason. The inherent powers of the court are quite separate and distinct from its common law and its statutory powers, eg in the exercise of its inherent jurisdiction the Court may regulate its own procedure independently of the Rules of Court.”

14. I.H. Jacob in "The Inherent Jurisdiction of the Court' 8quoted by Jerold Taitz (supra) states:8(1970) 23 Current Legal Problems 23 at pp. 51-52. “(it)exists as a separate and independent basis of jurisdiction, apart from statute or Rules of Court ... It stands upon its own foundation, and the basis for its exercise is ... to prevent oppression or injustice in the process of litigation and to enable the court to control and regulate its own proceedings ... [it] is a necessary part of the armoury of the courts to enable them to administer justice according to law. The inherent jurisdiction of the court is a virile and viable doctrine which in the very nature of things is bound to be claimed by the superior courts of law as an indispensable adjunct to all their other powers ... it operates as a valuable weapon in the hands of the court to prevent any clogging or obstruction of the stream of justice."

15. The application is premised on sections 75 and 78 of the Narcotic Drugs and Psychotropic Substances (Control) Act which provide:-75. Keeping of property seized under Act

All articles and things, including any narcotic drug or psychotropic substance, motor vehicle, aircraft, ship, carriage or other conveyance seized by any person under this Act shall, as soon as possible, be delivered to the Commissioner of Police with a statement of the particulars relating to the seizure and the Commissioner of Police shall arrange for the articles and things to be kept safely until they are dealt with in accordance with any other provision of this Act, and shall ensure that all reasonable steps are taken to preserve the articles and things while they are so kept. 78. Condemnation of seized things

Where a person is convicted of an offence under this Act and any narcotic drug or psychotropic substance, motor vehicle, aircraft, ship, carriage or other conveyance or any other article or thing, liable to forfeiture to the Government under this Act in respect of that offence has been seized under this Act, the court convicting him may, in addition to any other penalty imposed on him, order that the narcotic drug, psychotropic substance, motor vehicle, aircraft, ship, carriage of other conveyance or other article or thing be condemned and forfeited to the Government.

16. Interestingly, the Respondents said nothing about the provisions despite their relevance to the issues at hand. Also, there is nothing to show that the trial Magistrate considered the two provisions. Section 75 provides for keeping of property seized under the Act while section 78 provides for forfeiture upon conviction. The provisions are worded in very clear language. The provisions do not talk about ownership of a vehicle nor is it a consideration either at this stage or in the lower court. With such clear provisions of the law, it is not clear on what basis the release order was issued. What is clear is that the orders cannot be read in a manner that conforms with the above sections.

17. Its basic law that evidence seized for use as exhibits in criminal proceedings is generally held by the police or prosecuting authority until the time when it is formally introduced into evidence during the trial of an accused person. Such evidence is then considered to be custodia legis or in custody of the court until the final disposition of the case either by the lower court or where an appeal is preferred by the final appellate court.

18. The police are vested with powers to keep and protect exhibits to be produced in court. As was held in Simon Okoth Odhiambo v Republic,9 exhibits should never be released by the court until it is satisfied that in the case of conviction, no appeal has been preferred and if the appeal has been filed, such exhibits should only be released once the appeal has been heard and determined.9{2005} e KLR.

19. The Respondents have been charged in the lower court with offences under the Narcotic Drugs and Psychotropic Substances Control Act. I need not repeat the provisions of sections 75 and 78 reproduced earlier. Unless and until the trial court clears them or they are cleared on appeal, the Respondents and/or even the purported owner cannot claim any legal right to have the exhibits released to them. In the same vein, the order or suggestion that photographs of the motor vehicle be taken (or have been taken) flies on the face of the two cited provisions. If Parliament intended photographs of motor vehicles implicated in offences under the act be taken, it would have said so in clear terms.

20. In construing a statutory provision, the first and the foremost rule of construction is that of literal construction. All that the court has to see at the very outset is, what does the provision say? Courts would not be justified in so straining the language of the statutory provision as to ascribe the meaning which cannot be warranted by the words employed by the Legislature. Where the words of a statute are plain, precise and unambiguous, the intention of the Legislature is to be gathered from the language of the statute itself and no external aid is admissible to construe those words. It is only where a statute is not exhaustive or where its language is ambiguous, uncertain, clouded or susceptible of more than one meaning or shades of meaning that the external aid may be looked into for the purpose of ascertaining the object which the Legislature had in view in using the words in question.

21. It is in public interest that alleged offenders be prosecuted. It is also in public interest that the innocent should not be punished. On this basis, the guilty or innocence of the Respondent will be determined by the lower court.

22. Sadly, this application has been pending before this court since 20th September 2021. A reading of the charge sheet shows that the Respondents were arraigned in court on 17th April 2021, over one ago. A reading of the replying affidavit shows that the trial in the lower court is yet to commence, and it has suffered several adjournments. Such delays are unacceptable. Trial delay has been the bane of Kenyan judiciary, a serious affront to the constitutional edict in Article 159 which requires courts to administer justice without delay. To me, the solution in this matter lies in expediting the criminal trial in the lower court.

23. Flowing from the foregoing discussion, the conclusion becomes irresistible that the orders issues on 26th August 2021 fly on the face of sections 75 and 78 cited earlier. Accordingly, I allow the application dated 1st September 2021 and set aside the said order in its entirety.

SIGNED, DATED AND DELIVERED VIRTUALLY AT MOMBASA THIS 13TH DAY OF MAY 2022. JOHN M. MATIVOJUDGE