[2024] KEHC 1685 (KLR)
The trial court's order releasing sandal wood, a proscribed forest produce, to the accused was erroneous as it contravened the prohibition under Gazette Notice No. 3176 of 2007. The High Court, exercising its revisionary jurisdiction under Sections 362 and 364 of the Criminal Procedure Code, found that the sandal...
Source-derived case information.
- Citation
- [2024] KEHC 1685 (KLR)
- Parties
- Applicant: Republic; Respondent: David Mungai Mucheru
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Revision Case E100 of 2023
- Procedural Posture
- Criminal Revision / Ruling on Revision of Trial Court Order
- Outcome
- Trial court order revised; sandal wood forfeited to the state and to be disposed of by Kenya Forest Service.
- Judges
- HM Nyaga
- Legal Topics
- Forfeiture of Exhibits, Prohibited Forest Produce, Criminal Revision Powers, Disposal of Exhibits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
David Mungai Mucheru
Respondent
Procedural Posture
Criminal Revision / Ruling on Revision of Trial Court Order
Legal Issues
- 1 Whether the trial court erred in ordering the release of sandal wood, a proscribed forest produce, to the accused.
- 2 Whether the High Court should revise the trial court's order and direct forfeiture and lawful disposal of the sandal wood.
Ratio Decidendi
The trial court's order releasing sandal wood, a proscribed forest produce, to the accused was erroneous as it contravened the prohibition under Gazette Notice No. 3176 of 2007. The High Court, exercising its revisionary jurisdiction under Sections 362 and 364 of the Criminal Procedure Code, found that the sandal wood, being an illegal commodity, could not lawfully be returned to the accused. The proper course was forfeiture to the state through the Kenya Forest Service, with subsequent disposal as provided by law. The revision ensures compliance with environmental protection laws and proper handling of prohibited items.
Court Disposition
Trial court order revised; sandal wood forfeited to the state and to be disposed of by Kenya Forest Service.
Orders
- The order of the trial court dated 9th February, 2024 releasing sandal wood to the accused is set aside.
- The 50 tonnes of sandal wood produced as an exhibit shall be forfeited to the state through the Kenya Forest Service, Nakuru/Laikipia Counties.
Full Case Text
Judgment text and source record
22 paragraphs
Republic v Mucheru (Revision Case E100 of 2023) [2024] KEHC 1685 (KLR) (26 February 2024) (Ruling)
Neutral citation: [2024] KEHC 1685 (KLR)
Republic of Kenya
In the High Court at Nakuru
Revision Case E100 of 2023
HM Nyaga, J
February 26, 2024
Between
Republic
Applicant
and
David Mungai Mucheru
Respondent
Ruling
1. This file has been referred to the High Court by the trial magistrate, Hon. R. Kefa vide her letter dated 26th February, 2024.
2. In her letter, the magistrate explains that she issued an order that the exhibit produced in court namely sandal wood be released to the accused. She now acknowledges that the said order was erroneous.
3. There is a prohibition of the harvesting, transportation and sale of sandal wood vide Gazette Notice No. 3176 of 2007.
4. As such, the sandal wood produced in court was a proscribed forest produce and could not, under any circumstances be released to the accused, who was charged with an offence relating to the same.
5. Therefore, under the powers vested upon this court under Sections 362 and 364 of the Criminal Procedure Code, the orders of the trial court issued on 9th February, 2024 are hereby revised and substituted with an order that the 50 tonnes of sandal wood produced as an exhibit shall be forfeited to the state through the Kenya Forest Service, Nakuru/Laikipia Counties.
6. Further upon forfeiture, the Kenya Forest Service shall dispose of the said exhibit as provided by law and issue a certificate of such disposal to the trial court.
7. These orders are to be served on the ODPP, the Kenya Forest Service and the National Police Service for compliance.
DATED, SIGNED AND DELIVERED AT NAKURU THIS 26TH DAY OF FEBRUARY, 2024. .........................H. M. NYAGAJUDGEIn the presence of;C/A DicksonN/A for state