[2022] KEHC 339 (KLR)

Republic v Njeru & another (Criminal Revision E278 of 2021) [2022] KEHC 339 (KLR) (5 May 2022) (Ruling)

Neutral citation: [2022] KEHC 339 (KLR)

Republic of Kenya

In the High Court at Kiambu

Criminal Revision E278 of 2021

MM Kasango, J

May 5, 2022

Between

Republic

Applicant

and

Ijidio Kariuki Njeru

1st Respondent

Samuel Waruingi Mwangi

2nd Respondent

(Being a Revision Application from the Original Order of 23rd December, 2021 in Kiambu Chief Magistrate’s Court (Hon. M. Kinyanjui, PM) Criminal Miscellaneous Application NO. E529 of 2021)

Ruling

1. This Revision arises from the Order of the Principal Magistrate Hon. M. Kinyanjui, made on 23rd December, 2021. By that order, the learned Magistrate ordered:-(i)That motor vehicle (KCM 356Y) be and is hereby released to Samuel Waruingi.(ii)That caveat be placed on it so that it is not sold.(iii)That motor vehicle be availed in court as when trial begins and that photo of the same be taken.

2. A revision of the above orders, and more particularly the order for release of the subject vehicle was sought by Director of Public Prosecutions (DPP) by a letter dated 31st December, 2021.

3. The impugned order was made following the application made by Samuel Wauringi Mwangi. By that application, Waruingi stated he was a bonafide owner of the subject motor vehicle. Waruingi stated that he legally purchased the subject vehicle from Ejidio Kariuki Njeru. That although Waruingi produced to the investigating officers, of alleged criminal complaint, all documents proving his ownership of the subject vehicle they were not released to him.

4. DPP seeks Revision of the order made by Hon. M. Kinyanjui, PM before Kiambu Chief Magistrate’s court on the ground that the subject motor vehicle is the subject of a criminal trial being Kiambu C.M. Criminal Case No. E2277 of 2021 where Ejidio Kariuki Njeru is charged with its theft. From the documents before court, it would seem Waruingi purchased the subject vehicle from Ejidio Kariuki Njeru.

5. This Court called for the file where subject order was made as provided under Section 362 of the Criminal Procedure Code, which provides:-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.

6. This Court does not wish to interfere in any way with the pending trial and accordingly, the background discussion of this Revision shall be maintained at a minimum. Suffice it to say that the impugned order was made before the accused Ejidio Kariuki Njeru was arraigned before court and charged with the theft of the subject vehicle and in all probability, the court would not have ordered for the release of the subject vehicle if it was aware of the commencement the criminal trial relating to a charge of theft of the subject vehicle. Having considered the affidavit evidence filed in this matter, I am satisfied DPP has made out a case for the Revision of the order for releasing the subject vehicle.

7. I accordingly order as follows:-a.The order for the release of motor vehicle registration No. KCM 356Y made in Kiambu C.M. Misc. Application No. E529 of 2021 on 23rd December, 2021 and also 3rd January, 2022 is hereby set aside and vacated.b.Any subsequent application for the release of the motor vehicle registration No. KCM 356Y** shall only be made in Kiambu C.M. Criminal Case No. E2277 of 2021.

RULING DATED AND DELIVERED AT KIAMBU THIS 5TH DAY OF MAY, 2022. MARY KASANGOJUDGECoram:Court Assistant: MouriceFor Republic: - Mr. KasyokaFor Respondent: Samuel Waruingi Mwangi : Ms. NjorogeCOURTRuling delivered virtuallyMARY KASANGOJUDGE