[2022] KEHC 10618 (KLR)

Republic v Njoroge & another; Bashy African Credit Ltd (Interested Party) (Criminal Revision 1 of 2020) [2022] KEHC 10618 (KLR) (Crim) (18 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10618 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision 1 of 2020

LN Mutende, J

May 18, 2022

Between

Republic

Applicant

and

Susan Wangare Njoroge

1st Respondent

Daniel Gucoma Ndutire

2nd Respondent

and

Bashy African Credit Ltd

Interested Party

Ruling

1. Susan Wangare Njoroge, (1st Respondent) and Daniel Gucoma Ndutire, (2nd Respondent and now deceased) were charged in criminal case no. 552 of 2019 with the offence of robbery with violence contrary to Section 296(2) of thePenal Code. The allegation was that they had robbed Cyrus Koigi Mwaura, a Motor Vehicle Registration number KCK 912 R make Toyota Harrier black in colour. In the alternative they were alleged to have handled a stolen motor vehicle.

2. Prior to the prosecution presenting its case, two interested parties namely Bashy African Credit Ltd and Susan Wangare Njoroge on their part and Alhusnain Motors Ltd filed separate applications seeking release of the motor-vehicle in issue. According to the 2nd Respondent and Bashy African Credit Ltd the motor-vehicle was Registration Number KCF 328B while the prosecution and Alhusnain Motors Ltd argued that the motor-vehicle was Registration Number KCK 912R which was stolen and interfered with.

3. The trial court considered the applications and by a Ruling dated 4th November 2019 ordered the vehicle to be released to Bashy African Credit Ltd.

4. On the 20th October 2019, Mr. Joseph Riungu, Assistant Director of Public Prosecutions through a letter addressed to the court sought revision of the order under Section 362 and 364 of the Criminal Procedure Code (CPC). The argument raised was that the court called the motor-vehicle in question KCF 328B and disregarded the log book availed by Alhusnain Motors and the report filed by the Special Crime Prevention Unit that the chasis of the motor-vehicle was tampered with.

5. Further, that the prosecution would be prejudiced as the exhibit being a movable property was likely to be disposed off, vandalized, stolen or even be involved in an accident. The letter also sought stay of execution of the order pending hearing of the application. The matter was assigned Criminal Revision No. 310 of 2019.

6. On the 7th January 2020 the State filed an application by way of Notice of Motion seeking stay of execution pending hearing and determination of Criminal Revision Case No. 310 of 2019. The application is supported by an affidavit deposed by No. 71286 Cpl. Julio Mutembei who avers that in releasing the motor-vehicle the court was of the view that Bashy African Credit Limited had attached a log book confirming ownership of the vehicle but similarly Alhusnain Motors had also attached a Logbook proving ownership of motor-vehicle KCK 912R.

7. That the court failed to consider the report that was on record by the special Crime Prevention Unit that confirmed that the chasis number of the motor-vehicle had been tampered with.

8. The 1st Respondent filed a replying affidavit in response to the application. She averred that the application was intended to assist Al Husnain Motors in taking the Motor –vehicle KCF 328B converted into KCK 912R unlawfully. That no identity of KCK 912R was found on the Motor-vehicle KCF 328B to insinuate that is was the same Motor-vehicle.

9. That charges the Respondents are facing relate to a Motor-vehicle KCK 912R a Toyota Harrier whereas the Respondent’s Motor-vehicle is KCF 328B, Toyota Harrier Hybrid.

10. That stay of release of the Motor-vehicle could be necessary if forensic examination or inspection would have been carried out or if photographs would have not been taken. That if the challenge was over ownership of the Motor-vehicle the court with jurisdiction to hear the matter was a civil court. That if the orders sought are granted the 1st Respondent would suffer loss as she had already been threatened with a legal action by Bashy African Credit Ltd.

11. The appellant swore a supplementary affidavit where Cpl. Mutembei deposed that the number plate affixed on the Toyota Harrier did not conform to the Vehicle Identification Number (VIN) and further investigations revealed that the chasis number had been tampered with.

12. In order to safeguard its interest Bashy African Credit Ltd Sought to be enjoined as a party. By an affidavit sworn by its director, Bashir Kipimo Mrimia, it was averred that the Motor-vehicle was released to them in November 2019 and the applicant failed to challenge the order of the court or sought to obtain restraining orders over the Motor-vehicle and after the 1st Respondent paid the loan the Motor-vehicle was released to her as well as the log book.

13. When this matter was placed before Kimaru J. on 13/2/2020, Criminal Revision No. 310 of 2019 and Misc. Criminal Application No. 1 of 2020 were consolidated but no stay order was granted. Subsequently on 22/9/2020 the matter was placed before Lesiit J (As she then was) where directions were given and as such the matter was placed before this court on 16/6/2021 after the motor-vehicle had been released. Parties did not seem to be in haste regarding the matter but, on the 11/11/2021 the 1st Respondent filed a further affidavit stating that she disposed the vehicle KCF 328B because of financial difficulty and constraints. Therefore, she had no claim over the Motor-vehicle as it was owned by a different party. In the result she argued that orders sought were not warranted as the prosecution had closed its case in the lower court.

14. During hearing of the application, the Applicant through Learned Counsel Mr. Kiragu relied on documents filed including the application dated 9/1/2020 and the supplementary affidavit filed on 13/2/2020.

15. The 1st Respondent through Mr. Mwaura, learned counsel, who also held brief for Mr. Kinyanjui, learned counsel for the Interested Party opposed the application. It was argued that the application had been overtaken by events as the subject Motor-vehicle had been sold and was in possession of a 3rd party. That the prosecution took photos, a forensic report was made and the Investigation Officer had testified, therefore the issue of ownership could be determined through a civil suit.

16. In response thereto it was urged that the 1st Respondent sold the Motor-vehicle knowing that the criminal trial was pending which called for granting of the orders sought.

17. I have duly considered pleadings and arguments by parties herein. This court being a High Court is seized of jurisdiction over subordinate courts. It has power to revise, alter or even set aside orders of the lower court. In making the relevant order the court has to ensure justice is done. (See Article 165 (6) of the Constitution and Section 362 of the Criminal Procedure Code). The duty of this court is therefore to interrogate the record of the lower court so as to determine the legality, correctness and propriety of the impugned Ruling.

18. As earlier pointed out, the applicant moved to court seeking stay of execution a month and half after the court granted the orders. By then the Applicant had not complied with the court order. Compliance of the order was on 5/3/2020. The manner in which the matter was handled was lackluster such that the prayer for stay of execution was overtaken by events.

19. That notwithstanding, this court has the jurisdiction to interrogate the regularity of the orders made by the lower court.

20. The application for release of the Motor –vehicle, an exhibit in a criminal case was made prior to being identified by witnesses and/or the Investigation Officer. It was not in dispute that the Motor-vehicle was detained following reasonable apprehension that it was stolen in the course of a robbery. Being an exhibit in a criminal case, the prosecution had the right of custody over it and the court had the duty to ensure it was preserved.

21. In the case of Republic verses Henry Were Obuya & Another (2006) eKLR; where the trial court released containers that had been allegedly stolen prior to being adduced in evidence, Sergon J. held that:“What is clear is that the 2 containers are the subject matter of the complainant or charge before the principal Magistrate’s court. The containers have not been produced as exhibits in evidence hence they have not become the property of the court. The learned Principal Magistrate therefore did not have jurisdiction to issue the orders releasing the containers which in essence are the intended evidence in support of the prosecution’s case…….. In a nutshell the court had no control over the proposed exhibits until they were submitted to court as exhibits in evidence in the usual manner prescribed in law”

22. In the case of Elijah Nyakebondo Vs. Republic(2017) eKLR Bwonong’a J had this to state:“I find that the magisterial court was not entitled to direct that the subject motor vehicle be released to the respondent/accused. The reason for this is that the motor vehicle had not been produced as an exhibit in the magistrate’s court. It is only when some property including a motor vehicle have been produced as an exhibit in court that that court is then seized with the jurisdiction to order for its disposal. I find that the trial court did not have jurisdiction to order the release of the subject motor vehicle to the accused, given that the prosecution intended to use it in proving their case against the accused person.”

23. In its Ruling the trial court stated thus:13. The vehicle was found in possession of the 1st accused and is currently registered in the name of Bashy Credit Ltd and the 1st accused.14. Any claimant to the contrary alleging fraud in such registration should find remedy in another forum where the fraud would have to be proved.15. To allow such to happen I find it better to have the vehicle released pending hearing of this case so that the parties can resolve the issue of ownership elsewhere without requiring this court to arrive at conclusions that could appear to convicting the accused before hearing the evidence.16. The objective of the police/the prosecution for that matter is to prove the offence. They do so by use of photographs to be taken.17. Consequently, I order that the vehicle be released upon photographs to been taken. The Bashy African Credit Ltd and the 1st accused as prayed in prayer 3. ”

24. An indepth look at the Ruling clearly shows that the court actually proceeded to determine who had a better legal interest in the vehicle. The court seemed to be interested in determining rights of ownership and the presumption of innocence which made it overlook the fact of the vehicle having been an exhibit in a criminal court.

25. Further, the court overlooked some important facts. It ordered release of the Motor-vehicle without establishing whether the Number Plate on the vehicle conformed to the main Identifying feature of the Motor-vehicle and/or whether the chasis had been tampered with which could only be done upon viewing the physical exhibit as opposed to photographs.

26. Of importance is the fact of the court having failed to appreciate that the Motor-vehicle had not been produced in evidence which meant that it lacked jurisdiction over the exhibit. Ordering release of an item that was not in its custody, the court was simply aiding the party who was to blame. This was hence prejudicial to the prosecution’s case.

26. The release in question was unconditional. As soon as Bashy African Credit Ltd ceased to have a lien on the Motor-vehicle following clearance of the credit, circumstances that followed enabled the 1st Respondent, an accused person in the criminal case to retain exclusive rights over the Motor-vehicle and to defeat justice, as she has allegedly disposed it. This was a mockery of justice.

27. It is worth noting that it is important for an exhibit to be available to the court at all stages of a criminal trial. The action taken by the 1st Respondent is contemptuous which calls for reversal.

26. The upshot of the above is that there was an irregularity that must be corrected by this court. In the premises, I hereby set aside the order of the trial court issued on the 4th November 2019 which I substitute with an order directing the 1st Respondent who is illegally in possession of the Motor-vehicle to surrender it to the Investigating Officer who should cause it to be in custody of the court until the matter is determined.

26. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLYAT NAIROBI THIS 18TH DAY OF MAY, 2022. L. N. MUTENDEJUDGEIN THE PRESENCE OF:Mr. Kiragu for the ApplicantMr. Mwaura for 1st RespondentCourt Assistant - Mutai