[2022] KEHC 10081 (KLR)

Republic v Onyango & another; Director of Criminal Investigations & 2 others (Respondent); Wambua & another (Interested Party) (Miscellaneous Criminal Application E093 of 2021) [2022] KEHC 10081 (KLR) (Crim) (12 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10081 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Miscellaneous Criminal Application E093 of 2021

LN Mutende, J

July 12, 2022

IN THE MATTER OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF THE CRIMINAL PROCEDURE CODE, CHAPTER 75 OF THE LAWS OF KENYA AND IN THE MATTER OF THE EXCISE DUTY ACT, NO. 23 OF 2015 AND EXCISE DUTY (EXCISABLE GOODS MANAGEMENT SYSTEM) REGURLATIONS, 2017 AND IN THE MATTER OF THE EAST AFRICAN COMMUNITY CUSTOMS MANAGEMENT ACT, 2004

Between

Republic

Complainant

and

Daniels Andres Onyango

1st Accused

Bruce Omollo Okoko

2nd Accused

and

Director of Criminal Investigations

Respondent

Kenya Revenue Authority

Respondent

Director of Public Prosecutions

Respondent

and

Monicah Mwende Wambua

Interested Party

Raymond Olenodo

Interested Party

Ruling

1. Daniels Andres Onyango and Bruce Omollo Okoko, were charged at the outset with the offence of stealing goods in transit contrary to Section 279(c) of the Penal Code. Particulars being that on the 28th day of May, 2020, at Chokaa Area in Njiru Sub-County within Nairobi County, with others not before court stole One Thousand, Eight Hundred and Fifty cartons containing Jik products valued at Kshs 3,005,100/- the property of Evance Mudanya Magumba. The charge was however substituted with one of conveying uncustomed goods contrary to Section 244 (2) of the East African Community Customs Management Act 2004. Particulars being that on the 28th day of May 2020, at Chokaa Area in Embakasi Central Sub-County within Nairobi County, jointly used an unlicensed motor-vehicle Registration No. KCF 987T/ZG 1370 make Renault Prime Mover, in conveyance of goods subject to customs control without permission of authorizing officer.

2. Daniels Andres Onyango was the Manager and driver of the Prime Mover Registration No. KCF 987T/ZG the property of Monicah Mwende Wambua (1st Interested Party) which was hauling trailer Registration Number ZG 1370 owned by Raymond Otendo (2nd Interested Party). The motor-vehicles in issue were intercepted while carrying cartons of Jik Bleach products from Orbit Chemical Industries Nairobi.

3. After plea-taking the Prosecution made an application for release of the products to the owner, an application that was allowed, but, they were to be released under supervision of KRA and investigations officer. Subsequently, the containers that had been hired to Onyango and Okoko had the (2) released to him.

4. By an application dated 9th October, 2020 Monicah and Raymond sought release of the motor-vehicles. The trial court opined that the motor-vehicles breached the tax laws therefor made orders thus: The 2 applicants are allowed to collect their vehicles upon payment of all duty or taxes due as a result of the diversion of the goods.

The applicants shall also deposit the original logbooks herein in court prior to the release.

Photographs to be taken prior to release.

Each applicant shall also execute a bond of Kshs 200,000/- undertaking to avail their respective vehicles when required.

5. By an application dated 29th June, 2020, filed in Misc. CriminalApplication No. 176 of 2020, Onyango and Okoko sought orders as follows:1. This Application be certified as urgent and the same be heard ex-parte in the first instance.2. That the Lordship Court be pleased to Review and/or vary the orders issued on the 25th June, 2020 in this matter for the evident error on record, that there is no order for release of the goods issued by the lower court.3. The Lordship court be pleased to grant an order to track, intercept and arrest the motor-vehicle KAW 137J, affixed with trailer ZE 4216, which is transporting the 1850 cartons of Jik products, and the same be placed under police custody.4. The same goods be re-transported under a tracking system or police escort to Nairobi and be placed under police custody at the Central Police Station.5. The OCPD and/or OCS at Busia and/or Malaba border points to ensure execution and compliance of the above orders.

6. The application was premised on grounds that James Obura and Evance Mudanya Magumba who entered into a transportation agreement with the accused turned against them and caused them to be charged. That they have perfected a tax evasion scheme and use various actors including persons from Dembe Trading Enterprises Ltd. That the Lower Court ordered release of the exhibits to a fictitious party, an entity called Dembe Trading Enterprises Limited. The application has however never been prosecuted.

7. Subsequently through a Notice of Motion dated 12th March 2021, the Interested Parties herein seek orders that:(i).This Application be considered alongside/together with Misc Criminal Application No. 176/2020 because of their connection.(ii).This Court be pleased to Set Aside, Vary Vacate and/or Review the orders issued by the trial Chief Magistrate’s Court in respect to the Interested Parties Application dated 9th October, 2020. (iii).This Court be pleased to issue an order directing the Respondents and/or their agents to unconditionally release the motor vehicle Registration Number KCF 987T Renault Prime Mover (chassis/Frame VF624JPA000001608) White and affixed with Trailer Number ZG 1370 (Chassis/Frame RO-002-19) Color Red-Black Load Capacity 2700 KG to the Interested Parties/Applicant’s advocate together with the Logbooks, Keys and other accessories thereof in their possession and/or control.

8. The application is premised on the grounds that the Interested Parties are bonafide owners of the Motor-vehicle and Trailer that were hired from them to transport 1850 cartons of Bleach products from Orbit Chemical Industries Nairobi to some destination by James Obura Odour and Evance Mudanya Magumba, the 2nd and 3rd Respondents in the Misc. Criminal Application No. 176 of 2020; and, there were unclear circumstances that resulted into accused persons being charged in Criminal Case Number 1312 of 2020, at the Chief Magistrate’s Court.

9. That the Interested Parties had employed the accused persons to manage their motor-vehicles and when the contract to transport Jik products was entered into, it was without the knowledge and/or privity of the Interested Parties; A disagreement having arisen between the complainant and accused persons as to where exactly goods were to be delivered, the Director of Criminal Investigations moved to the scene, arrested the accused and impounded the motor-vehicles.

10. That Interested Parties were not linked to the investigations which have since been concluded; they were not part of charges and they have no interest in the Jik products; and, no other party has expressed proprietary interest in the vehicle.

11. That the court erred when it placed the tax burden on the innocent owners who had suffered financial loss due to detention of the vehicles. That the taxes should be paid by persons involved in the offence after the court established factual claims; that the unestablished grounds and unnecessary burden offends the law and Public Policy. That the vehicle was used for commercial purposes and was driven at the time by a stranger who was not the Interested Parties’ employee or under their authority as he had been hired by the accused.

12. The application is supported by an affidavit deponed by Raymond Olendo having been authorized by the 1st Interested Party who reiterates what is stated on the body of the application and adds that the taxes had not been ascertained or determined by the court of law. That the court had not established the issue of diversion and there was no evidence to link the Interested Parties to the guilt.

13. Respondents did not file any response to the application.

14. The application was canvassed through written submissions. It was urged by the Interested Parties that there was a mistake on the face of the record and there exist other sufficient reasons necessitating review which include: the gravity of the loss in terms of financial; business opportunities experienced by the applicants since June 2019, when the motor-vehicle was impounded, weathering, wear and tear conditions the vehicle was subjected to since 2019; resultant infringement of the rights of possession and use of the property and discriminative and un-equal benefit and protection of the law.

15. That the Ruling was anchored on unverified and disputed facts that had not been decided by the court which include: whether the goods were on transit to Uganda or not; whether documents filed by the complainant indeed meet the threshold and requirements of the documents meant to be used for transit or export goods; whether there was diversion of or not; whether there are any taxes and dues calculated and declared payable, and if any, who shall be responsible for the payments.

16. That the court unconditionally released the two (2) containers to it’s owners but the Interested Parties were compelled to bear the tax penalties. That the court did not give reasons for unconditional release of the containers to the owners and burdening of the parties with the tax responsibility, which was discrimination against them, breach of their constitutional rights under Article 27(1) of the Constitution that provides for equal protection of persons and equal benefit of the law under Article 27(5) which prohibits direct or indirect discrimination.

17. That the court based its Ruling on disputed factors, an approach that is contrary to principles of natural justice and Article 50(1) of the Constitution, 2010. That the finding based on the argument that custom laws require the owners of vehicles that transport transit goods to comply with several rules including installing real time trackers, a dispute that should have been determined as documents produced by the complainants did not sufficiently indicate that the same goods were for export and as to whether the goods were on transit or not is in dispute, therefore, the Ruling had no legal basis.

18. That although the court directed KRA to ensure the goods were verified properly, loaded, sealed and transported to their destination in Uganda, at the time of the Ruling, this had not been complied with.

19. That the accused are still presumed innocent since there is no charge or civil claim on diversion of goods that has been determined by the court. In this regard they relied on the case of Petroleum Institute of East Africa v Republic & 3 others [2021] eKLR where the court stated that:“Despite the fact that the prosecution submitted that upon conviction they shall be seeking to have the Motor Vehicle forfeited, the 3rd and 4th respondents have not yet been found guilty and/or convicted with the offences they are charged with before the trial Court thus they are still presumed innocent until proven guilty.”

20. That there being no order of calculations of taxes, the Interested Parties have been prematurely subjected to explain their case to the taxman, to determine tax payable which offends legal procedure. In this instant they relied on the case of Senior Assistant Commissioner (Enforcement Post Operation) & 3 others [2018] eKLR where the court stated that;“27. The applicant urged the court to rely on Regulations 104 (22) and (23) of the East Africa Community Customs Management Regulations, 2006 which provides as follows:22. A person who diverts from the transit route specified under sub regulation (4) commits an offence and shall be liable to a fine not exceeding fifty per cent of the value of the goods and the goods which are the subject of the offence, shall be liable to forfeiture23. Where goods in transit cannot be traced, the person referred to under sub regulation (22) shall pay to the proper officer the penalty to bond in addition to the fine.”And, in the case of Pastoli v Kabale District Local Government Council and others [2008] 2 EA 300 where the court held that:“Illegality is when the decision making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality”

21. That there is an error on the face of the record as the accused were never made aware of the application by the alleged owners of the containers and the allegation that the same had been hired out to the accused was never subject to any trial.

22. That there is a manifest error on record in the two (2) Rulings as in the initial one the court did not state serial numbers of the two (2) containers while in the second Count described the vehicle as container No. CMA21 47Y8925 Lorry Truck KCF 987 trailer ZC 1370, meaning that the court was dealing with different vehicles, and following the mix-up, the motor-vehicles should be released.

23. Ms. Ntabo for the 1st and 3rd Respondents urged that if the accused are convicted the vessels in question stand to be forfeited to the State, the argument that was based on Section 311 of the Penal Code that provides that:Where any person is convicted of an offence, or of an attempt to commit an offence or of counselling or procuring the commission of an offence, under the provisions of this Chapter, or of Chapter XXVI or Chapter XXVIII or section 322, and the court by which the person is convicted finds that any aircraft, vessel or vehicle was used or employed by that person in the commission or to facilitate the commission of the offence of which he is convicted, the aircraft, vessel or vehicle may be forfeited.(2) An aircraft, vessel or vehicle which is liable to forfeiture under subsection (1) shall be dealt with in accordance with section 389A of the Criminal ProcedureAnd Section 389 of the Criminal Procedure Code (CPC) that provides that:(1) Where, by or under any written law (other than section 29 of the Penal Code), any goods or things may be (but are not obliged to be) forfeited by a court, and that law does not provide the procedure by which forfeiture is to be effected, then, if it appears to the court that the goods or things should be forfeited, it shall cause to be served on the person believed to be their owner notice that it will, at a specified time and place, order the goods or things to be forfeited unless good cause to the contrary is shown; and, at that time and place or on any adjournment, the court may order the goods or things to be forfeited unless cause is shown by the owner or some person interested in the goods or things: Provided that, where the owner of the goods or things is not known or cannot be found, the notice shall be advertised in a suitable newspaper and in such other manner (if any) as the court thinks fit. (2) If the court finds that the goods or things belong to some person who was innocent of the offence in connexion with which they may or are to be forfeited and who neither knew nor had reason to believe that the goods or things were being or were to be used in connexion with that offence and exercised all reasonable diligence to prevent their being so used, it shall not order their forfeiture; and where it finds that such a person was partly interested in the goods and things it may order that they be forfeited and sold and that such person shall be paid a fair proportion of the proceeds of sale.

24. That the court has the discretion to have the vehicle confiscated to the State therefore the matter having not been determined status quo should be maintained.

25. I have considered the application made by the Exparte Applicants described herein as Interested Parties, the affidavit in support and rival submissions by some of the parties herein.

26. The High Court has a general power of supervision over the actions of the subordinate court. Where there exist illegalities or irregularities resulting in injustice the superior court must rectify the injustice. This power is provided for by Constitution and Statute. Article 165 (6) (7) of the Constitution provide that:6. The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.7. For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.

27. Section 362 of the CPC enacts thus: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.

28. While interrogating the legality, propriety or the correctness of the order or finding of the subordinate court the court does not dwell on facts and evidence but looks at the record to establish its correctness, legality and propriety of the sentence. In the case of Republic v James Kiarie Mutungei [2017] eKLR the court stated that:“The enactment of Section 362 as read with Section 364 of the code is substantially part of the provisions of the statute to actualize the provisions of Article 165 (6) and (7) of the Constitution.The rationale of the High Court as a revisionary authority can be initiated by an aggrieved party, or suo-moto made by the court itself, call for the record relating to the order passed or proceedings in order to satisfy itself as to the legality, or propriety, correctness of the order in question. The scope of revision therefore is more restrictive in comparison with the appellate jurisdiction which requires the high court to rehear the case and evaluate the evidence in totality by the lower court to come with a decision on the merits. ....As can be seen from this analysis the function of the court under Section 362 of the Criminal Procedure Code as read with Section 364 is to enable the court to scrutinize and examine the correctness of facts of a subordinate court or tribunal so as to make a finding on legality or propriety. Legality means lawfulness, strict adherence to law, correctness and propriety ordinarily having the same meaning... The interference under Section 362 by this court on revision can only be justified if the impugned decision is grossly erroneous, to justness appropriateness (sic) and suitability to trial.”

29. The main contention by the Interested Parties is release of the Motor-vehicles Registration No. KCF 987T Prime Mover and the trailer Number ZG 1370 affixed thereon which remain impounded to date. It is urged that the orders by the subordinate court were oppressive and against the law.

30. Restitution of property is provided for in Section 177 of the CPC which stipulates thus:Where, upon the apprehension of a person charged with an offence, any property is taken from him, the court before which he is charged may order— (a) that the property or a part thereof be restored to the person who appears to the court to be entitled thereto, and, if he be the person charged, that it be restored either to him or to such other person as he may direct; or (b) that the property or a part thereof be applied to the payment of any fine or any costs or compensation directed to be paid by the person charged.

31. At the outset when the State preferred the charge of stealing goods in transit, the motor-vehicle that was in possession of the accused persons together with the goods it had carried and offloaded were seized by the Police during arrest. The goods were restored to the persons alleged to be special owners following an application that was considered by the court. The Prosecution established that the items were exhibits, they were produced prior to the order being made following a special hearing. The release of items by the court was ordered despite strong objection by the accused persons. The motor-vehicle that had carried the goods were not released on grounds that the 1st accused who applied for the release was not the legitimate owner. Subsequently, the court released the containers that had carried the goods as they had been hired hence the question whether it was just for the same court to decline to release the motor-vehicles. I do note that the Police were called following the finding of the goods having been allegedly diverted. I use the term “allegedly” because at the point of releasing the goods and container the court had not heard the accused persons who remained innocent until proven otherwise.

32. But, it is worth noting that following investigations conducted, the charge of stealing in transit seems to have been substituted with one of conveying uncustomed goods. The allegation was that the accused had contravened the East African Community Customs Management Act by conveying goods subject to customs control without the permission of the authorizing officer.

33. The initial charge that was signed on 4th June, 2020 was cancelled and it was indicated that it had been amended. However, the subsequent charge signed by the OCS Kayole on 25th June, 2020 had no indication of having been acknowledged by the Magistrate and it was not read to the accused, although this was not raised by the Interested Parties.

34. The court is obligated to balance the interest of the State /Prosecution and the administration of justice with the proprietary rights of the legitimate owner of the property. The court acted in haste by releasing the goods to the claimant having disregarded issues raised by the accused persons and the containers to the owners who were to cater for some costs of extraction and for the truck ferrying the containers to their destination. In the process the court failed to note that depending on evidence adduced the goods were liable to forfeiture under the East African Community Customs Management Act (Act)

35. Whether or not to grant orders sought the law must be considered.

36. The Act defines “uncustomed goods” as:Goods on which the full duties due have not been paid, and any goods, whether dutiable or not, which are imported, exported, carried coastwise or in any way dealt with contrary to the provisions of this Act;

35. According to the law any uncustomed goods are liable to forfeiture (See Section 210 of the Act).

37. Any vehicle used in conveyance of such goods is liable to forfeiture (See section 211 of the Act).

38. According to Section 213 (5) of the Act – if the thing seized and is in police custody is to be released this should be after the proceedings are complete and in event that such an order is made by the court, the commissioner is required to assess and collect any duty payable on that particular thing prior to restoration of the item to the owner.

39. Section 214(1) (3) of the Act provides thus:(1)Where any thing has been seized under this Act, then, unless such thing was seized in the presence of the owner of the thing, or, in the case of any aircraft or vessel, of Procedure on seizure the master thereof, the officer effecting the seizure shall, within one month of the seizure, give notice in writing of the seizure and of the reasons to the owner or, in the case of any aircraft or vessel, to the master: Provided that—(a)notice of seizure shall not be given in any case where any person has, within a period of one month, been prosecuted for the offence by reason of which the thing has been seized, or the offence has been compounded under Part XVIII, and if, after any notice has been given but before condemnation of the thing in accordance with this Act— (i) (ii) any such prosecution is brought, then such thing shall be dealt with in accordance with section 215 as if such notice had been given; the offence is so compounded, then such thing shall be dealt with in accordance with Part XVIII as if no such notice had been given;(b)where any such thing has been seized in the presence of any person coming within the definition of owner 116 East African Community Customs Management [Rev. 2009 for the purposes of this Act, then it shall not be necessary for the officer effecting the seizure to give notice person coming within such definition; to any other(c)a notice given to any person coming within such definition of owner shall be deemed to be notice to all other persons coming within such definition; (d) where a person coming within such definition of owner is not known, then it shall not be necessary for the officer effecting the seizure to give notice to any person.(3)Where any thing liable to forfeiture under this Act has been seized, then—(a)if any person is being prosecuted for the offence by reason of which the thing was seized, the thing shall be detained until the determination of such prosecution and dealt with in accordance with section 215;(b)in any other case, the thing shall be detained until one month after the date of the seizure, or the date of any notice given under subsection (1), as the case may be; and if a claim is not made as provided in subsection (4) within a period of one month, such thing shall be deemed to be condemned.

40. The trial court herein failed to comply with the law, that being the case, it does not mean that this court will also flout the law in respect of what is still in custody of the police. The case is pending further hearing and determination, the court has not resolved whether the goods it erroneously released were uncustomed or not and whether the Interested Parties’ vehicles were unlicenced within the meaning of the charges that were brought. The duty of determining what tax was to be paid was upon the Commissioner. The fact of the Interested Parties having not been involved in the commission of the offence and the accused having disputed the allegation of goods having been diverted, these are issues to be settled at the end of the trial where the court will consider the totality of evidence adduced and if the accused are acquitted, the vehicle will not be liable to condemnation.

41. From the foregoing, the interested parties herein have not demonstrated any error or irregularity committed by the subordinate court that calls for intervention. The court having exercised the discretion cannot be viewed to be an illegality or impropriety. This could have been a ground of appeal as opposed to revision.

42. Accordingly the application fails and is dismissed.

43. It is so ordered

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI, THIS 12THDAY OF JULY, 2022. L. N. MUTENDEJUDGEIn the presence of:Udoto Kongani holding brief for Mr. Wanyonyi for Interested Parties (Applicants)Ms. Adhiambo for the Respondents Court Assistant - Mutai