[2020] KEHC 4377 (KLR)
The trial court ordered forfeiture of the applicant's motor vehicle under section 68(1)(c) of the Forest Conservation and Management Act without following the procedure mandated by section 389A of the Criminal Procedure Code, which requires notice to the owner and an opportunity to be heard. Since the Act does not...
Source-derived case information.
- Citation
- [2020] KEHC 4377 (KLR)
- Parties
- Applicant: Solomon James Okumu Apudo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 2 of 2020
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- application allowed; forfeiture order set aside
- Judges
- DW Mbuteti
- Legal Topics
- Forfeiture of Property, Due Process, Criminal Procedure, Rights of Third Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Solomon James Okumu Apudo
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the trial court followed the correct legal procedure in ordering forfeiture of the applicant's motor vehicle.
- 2 Whether the applicant, as a non-accused owner, was deprived of property without due process.
- 3 Whether section 389A of the Criminal Procedure Code applies where the forfeiture procedure is not provided under the Forest Conservation and Management Act.
Ratio Decidendi
The trial court ordered forfeiture of the applicant's motor vehicle under section 68(1)(c) of the Forest Conservation and Management Act without following the procedure mandated by section 389A of the Criminal Procedure Code, which requires notice to the owner and an opportunity to be heard. Since the Act does not provide a forfeiture procedure, the Criminal Procedure Code applies. The failure to serve notice and allow the applicant to show cause amounted to deprivation of property without due process, violating constitutional protections. The forfeiture order was therefore illegal and must be set aside.
Court Disposition
application allowed; forfeiture order set aside
Orders
- The order of forfeiture of motor vehicle registration number KCQ 097A is set aside.
- The motor vehicle shall be released to the applicant forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT NANYUKI
CRIMINAL REVISION NO 2 OF 2020
SOLOMON JAMES OKUMA APUDO.....................APPLICANT
VERSUS
REPUBLIC.........................................................RESPONDENT
(From the Order of Forfeiture of Motor Vehicle Registration KCQ 097A, Isuzu FVZ Lorry, dated 02/01/2020 in Maralal PM Criminal Case No 446 of 2019 – A Gachie, SRM)
R U L I N G
1. Upon application by the Applicant herein, SOLOMON JAMES OKUMU APUDO,I have called for and examined the record of the trial court in respect to the order of forfeiture the subject of this ruling.
2. The Applicant was not an accused before the trial court; however, he was the owner of motor vehicle registration number KCQ 097A, Isuzu FVZlorry, by which some contraband (which formed the basis of the charges against the accused persons) was being transported.
3. The accused persons were convicted upon their own pleas and were duly sentenced. The trial court then, inter alia, ordered forfeiture of the motor vehicle to the Kenya Forest Service under section 68(1) (c) of the Forest Conservation and Management Act, No 34 of 2016. In so doing the trial court apparently ignored, or was not aware of, the requirements of section 389A (1) of the Criminal Procedure Code, Cap 75 which provides -
“389 A.(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.”
4. Section 68 of the Forest Conservation and Management Act aforesaid does not provide the procedure by which forfeiture is to be effected. It was therefore incumbent upon the trial court to have recourse to section 389A of the Criminal Procedure Code. It did not. The result was that the Applicant was deprived of his property without due process of the law contrary to constitutional protection under Article 40 of the Constitution of Kenya, 2010.
5. The order of forfeiture of motor vehicle registration number KCQ 097A was thus illegal, and learned prosecution counsel was right in not opposing the application at hand.
6. In the circumstances, the said order of forfeiture is hereby set aside. The motor vehicle in issue shall be released to the Applicant forthwith unless otherwise lawfully held. It is so ordered.
DATED AND SIGNED AT NANYUKI THIS 9TH DAY OF JULY 2020
H P G WAWERU
JUDGE
DELIVERED AT NANYUKI THIS 9TH DAY OF JULY 2020