[2023] KEHC 23086 (KLR)

Surf Hauliers Limited v Director of Public Prosecution (Miscellaneous Criminal Application E015 of 2023) [2023] KEHC 23086 (KLR) (4 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23086 (KLR)

Republic of Kenya

In the High Court at Kisumu

Miscellaneous Criminal Application E015 of 2023

RE Aburili, J

October 4, 2023

An Application For Revision Of The Decision Of The Trial Magistrate At Kisumu Chief Magistrates’court In Criminal Case No. E157 Of 2023 To Decline An Application By Surf Hauliers Limited For The Release Of Motor Vehicle Exhibit Registration Number Kda 321r Pending The Hearing And Determination Of The Criminal Case Against One Arthur Oterah Ndanyi & Another

Between

Surf Hauliers Limited

Applicant

and

Director of Public Prosecution

Respondent

Ruling

1. This is a ruling on an application for revision of the decision of the trial court’s Ruling made on 22/5/2023 declining to grant an application by Surf Hauliers Limited for the release of Motor Vehicle Registration Number KDA 321R pending the hearing and determination of the Kisumu CM CR Case NO. E157 of 2023. The Applicant claims that the motor vehicle in question belongs to the applicant and that the trailer ZF6300 and Freight Container No. CLHU9098111 thereof belonged to another company and that the said motor vehicle allegedly carried narcotic drugs the subject of the trafficking charge against the accused persons originally in Maseno SPM Criminal Case No. E 984 of 2021 R. v. Arthur A. Ndanyi Oterah &Another.

2. The application for revision is set out in the letter to court addressed to the Deputy Registrar of this Court dated 23rd May 2023 framed as follows:“Date:23rd May, 2023The Deputy Registrar,High Court of Kenya at Kisumu,Box 126 40100KisumuRe: Kisumu Cmc Cr Case No. E157 Of 2023Republic Vs Arthur A. Ndanyi Oterah &anotherApplication By Surf Haulers LimitedRevision Application Under Dection 362 CpcWe refer to the above matter.On the instructions of our client, M/s Surf Hauliers Limited, we made a formal application for the release of motor vehicle registration number KDA 321R Mercedes Benz and Trailer No. ZF6300 pending the hearing and determination of the trial on condition that the said chattels could remain in the custody of the said M/s Surf Hauliers Ltd and that the same shall be available to Court as at and when needed.The Office of the Director of Public Prosecutions opposed the application in a ruling delivered on 22/05/2023, the Learned Trial Magistrate declined the application and dismissed the same.The ruling delivered on 22/05/2023 cannot be the subject of an appeal.We hereby apply that the High Court calls for and examines the entire record in Kisumu CMC, Criminal CASE No. E157 of 2023, Republic vs Arthur Allan Ndanyi Otera & Another for the purpose of satisfying itself as to the correctness, legality and or propriety of the decision in the said ruling.The applicant, M/s Surf Hauliers wishes to be heard during the hearing of the revision. By copy hereof, the Office of the Director of Public Prosecutions is informed and notified of this application.We shall appreciate your prompt and positive action.Yours Faithfully,signedOnsongo & Company Advocates.”

3. The above application was placed before me on 19/6/2023 and I directed that the trial court file be placed before me for examination. This directive was complied with. I then set the application for oral hearing on 26/6/2023. However, on the above date, Mr. Onsongo counsel for the applicant was away attending the swearing in process as a member of the Selection Panel for the appointment of Director of Public Prosecutions. The hearing was therefore adjourned to 29/9/2023 as this court was proceeding on leave in July and resuming in September 2023 after the August recess.

4. To avoid delaying the hearing of the case before the trial court, and as this court was on leave combined with the recess period, the lower court file was returned t so that the hearing of the criminal case could continue uninterrupted as a hearing date had already been fixed by the trial court.

5. In his oral submissions, Mr. Onsongo urged this court to order for the release of the subject motor vehicle which had been produced as an exhibit in the trial court as the case was taking long to be determined. He argued that the applicant owner of the subject motor vehicle was not a party to the case which involves its driver. That the motor vehicle was used for commercial purposes and that the container was attracting demurrage charges to the detriment of the applicant.

6. He submitted that the court can grant a conditional release including depositing documents of registration into court. That it was now over six months since the vehicle was impounded hence the attendant expenses will be enormous.

7. Opposing the application for revision, Ms. Manyal the Prosecution Counsel on behalf of the ODPP submitted that the motor vehicle in issue was used for drug trafficking and the said vehicle has been produced as an exhibit already while the case was due for defence hearing on 30/10/2023. That the said motor vehicle will be forfeited to the state if it is found that the owner knew that it was being used for trafficking of Narcotic Drugs. She relied on the affidavit sworn by the investigating officer in the case in the lower court.

8. In a rejoinder, Mr. Onsongo Counsel for the applicant reiterated his submissions adding that it had not been demonstrated that the applicant was likely to dispose of the said motor vehicle, that the accused in the case is not the owner thereof and that at that time of impounding, the vehicle had no transit goods after delivering goods to DRC and was on its way back to Mombasa to the owners thereof.

9. The applicant’s counsel also complied and supplied to this court all the documents and application filed in the lower court for the release of the subject motor vehicle which application and replying affidavit I have perused.

10. In the detailed application and affidavit in support of the application for the release of the said motor vehicle in the lower court, sworn by Salim Khamis Ahmed then General manager of the applicant company, it is deposed that the trailer belongs to the shipping Company Blue Funnel Limited and that it was hired hence it attracts demurrage charges.

11. The applicant annexed copy of the tracking report on the movement of the said motor vehicle until it was impounded at Kojolla in Kisumu County and denies that it was party to the alleged trafficking of narcotics, the offence with which the driver was charged. It also produced copies of logbook and ownership of both the vehicle, trailer and container and the letter of employment of the said manager.

12. It was deposed that the court could have the said vehicle photographed and released so that the applicant does not continue suffering damages.

13. In the replying affidavit sworn by the investigating Officer PC Bernard Langat, it was deposed that there was no evidence of ownership of the said motor vehicle by the applicant, that the applicant had made a similar application in Maseno Court in Misc Criminal Application No.E006 of 2023 and the application was dismissed prior to this court transferring the matter to Kisumu CMs Court for hearing and determination, that the application which was made in Kisumu CMS’s Court was therefore res judicata and amounts to forum shopping, that the affidavit by the applicant was sworn by its employee whose employment is doubtful as a company is owned by Directors and that the applicant disowns the driver saying he was not their agent as the motor vehicle was hired for transportation of goods to the Democratic Republic of Congo and back.

14. The power of the Court in revision of orders of the trial court is indubitable under section 362 of the Criminal Procedure Code as follows:“362. Power of High Court to call for records

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.”

15. Section 364 (1) of the Criminal Procedure Code provides that this jurisdiction may be invoked by any means by which the court may be notified or made aware; and indeed, the court may call for a matter for revision where it otherwise becomes aware of a matter that requires revision to ensure legality of the process of the subordinate courts. Section 364 (1) (b) of the Criminal Procedure Code provides as follows:“(1)In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—(a)….(b)in the case of any other order other than an order of acquittal, alter or reverse the order.”

16. I have perused the ruling of the trial magistrate and I find no illegality or impropriety in the manner that he handled the application for release of the subject motor vehicle. This was a matter of exercise of judicial discretion.

17. Iam aware that the driver of the motor vehicle in question is facing charges before the lower court and that he remains presumed innocent until proven guilty. Iam also aware that the right to one; property is guaranteed by Article 40 of the Constitution and that from the documents produced, the applicant had initially applied for release of the said motor vehicle but the Maseno Court declined. However, the proceedings in the case for release of the vehicle show that the order dismissing the application was made on a preliminary objection to the effect that the applicant should have applied for release in the trial court file not a separate Miscellaneous court file. The application was not dismissed on its merits hence the applicant could still make another application before the same court to be heard and determined on its merits, without being called a forum shopper for the doors of justice are many.

18. However, of concern is that in the affidavit of Kahamis Salim Ahmed, he annexed a letter of employment with the applicant which clearly show that his contract with the applicant was for one year only from 7th June 2022 to 6th June 2023. There is no further affidavit sworn to show that he is still the applicant’s employee or that the depositions as they were then now still bind the applicant. It was expected that the applicant files into this court an affidavit sworn by one of its directors so that should the court make orders, those orders are not made in vain.

19. The applicant has however annexed sale agreements showing that it bought the motor vehicle from Eagle Heights Ventures East Africa Limited at 5. 7 million Kenya Shillings. on 5th October, 2022. The latter had bought it from Cargo Frex Logistics (CFL) Ltd on 30th November, 2020.

20. The question is whether it would be prejudicial to have the motor vehicle released to the apparent owner since the accused person does not claim ownership of the said motor vehicle which he was only authorized to drive to take goods to the DRC and return it to the owner in Kenya.

21. A similar situation arose in Director of Public Prosecution v Ibrahim Asala Mahangwa & 2 others [2022] eKLR where the learned judge reproduced the ruling of the trial magistrate at Meru, wherein he had released a multivehicle in a similar case and circumstances and the Prosecution applied for revision of the order of release. The learned Judge-Muriithi J observed that such order could be subject of revision and not appeal as argued by the prosecution counsel.

22. The learned Judge observed as follows:“In my respectful view, there are 3 considerations to be made on the possible outcome of the proceedings:-1)The accused are convicted of the offence of trafficking and the motor vehicle is forfeited in accordance with the Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994. The vehicle must be available for forfeiture2)The accused are acquitted of the charge of trafficking in narcotics. The determination of the motor vehicle will have cost the Applicants herein source of income and livelihood and means of repugnant of chattels mortgage on the vehicle.3)It is in the interests of both sides of the prosecution and the accused/ owner of the motor vehicle that the tune value of the Motor vehicle is retained so that sale on forfeiture or return upon determination of the Criminal trial in favour of the accused secures the value of the vehicle and avoid waste, disrepair and consequent depreciation”.

23. The court further posited as follows and it is worth reproducing it here:“How does the court protect the property from waste or loss of value and the interest of the owner/mortgages in the property consistency with the necessary Criminal Process" Securing the value of the property calls from the restriction of the vehicle to the owner so that he may use it to generate income to live on and pay off the mortgage. An order of the Court restricting any disposal by sale or mortgage, if possible, may be maintained as ordered by the court by a restriction placed with the National Transport and Safety Authority. Which is responsible for Motor vehicle ownership transfer registration.How does the court ensure that the order it makes is fit for purpose of promoting or ensuring effective criminal prosecution of the anti-corruption offence. If the release of the motor vehicle lapses the ability of the prosecution to prove the charge of trafficking because, say, the vehicle is not availed, or there is no opportunity to prove the carriage of the narcotic drug in the vehicle because of intervening interference of the vehicle, or the consequential process of forfeiture is disabled by loss of value of the vehicle or its unavailability, there would have been a misjustice in the failure of the prosecution to carry out its lawful mandate. Of course, the repeat offender argument of the Prosecution was inaccurate as the respondent bus, although involved in a previous charge for the same trafficking of narcotics, has not been found guilty as the case is still pending.”

24. As correctly stated by the learned Judge in the above case which is in pari materia with this case, a balance of the prosecution’s interest in the effective prosecution of crime by enabling proof of offences and the remanding of forfeiture as a deterrent on the one hand and the proprietary interest of the accused or the owner of the motor vehicle and the inter-locking interest of both in securing the value of the motor vehicle must be sought.

25. Adopting what the learned Judge stated, I consider such balance to exist in an order for the release of the motor vehicle, bearing in mind the principle of presumption of innocence on the accused, and of course, the non- involvement on the evidence, if that were so, of the Applicant owner of the motor vehicle, with a counter measure from the protection of prosecutions ability to prosecute effectively through an order that the prosecution is allowed to present such evidence relevant to the motor vehicle before the order for release is affected.

26. In the present case, it was submitted that the prosecution had already produced the said motor vehicle as an exhibit hence no evidence will be lost since if in the final analysis of the entire evidence of the trial, the offence is proved and there is need for forfeiture, an order will be made for the motor vehicle to be produced in court and Notice to show cause will also issue to the owners thereof to show cause why the order of forfeiture cannot be made, should the court be satisfied that the owner of the said vehicle knew and had reason to believe that the vehicle was being used to traffic narcotics and psychotropic substances.

27. In addition, the vehicle can be secured by a restriction on transfer or other disposal of the vehicle. If the offence is not proved, the Applicant owner of the Motor vehicle shall not have lost its use and benefit in the meantime as the same is used for commercial purposes and already, it has lost immensely since the impounding of the said motor vehicle.

28. In addition, even if the vehicle had not been produced as an exhibit, it can be photographed and released thereafter to the owner thereof.

29. In R. v. John Nganga Mbugua [2014] eKLR, Muchemi J observed that:“the prosecution have not attempted to demonstrate to this court why the vehicle should continue to be detained at the Police Station while the Applicant is ready and willing to produce it during hearings.”

30. In the above cited case of Public Prosecutions v Ibrahim Asala Mahangwa & 2 others, the prosecution feared that the release of the motor vehicle would destroy the chain for custody of the vehicle and compromise the outcome of the trial, and the motor vehicle is susceptible to wear and tear and in the event of accident there would be no exhibit to produce.

31. Addressing those fears, the learned Judge in the revision case stated as follows and I concur that:“I think that the possibility of loss of the benefit of the exhibit by way of interference with the chain of custody and the possibility of damages wear and tear through accident is a compelling factor, which in the circumstance of this case call for the presentation of the vehicle before the court in evidence before an order for release. It is the question of forfeiture which must await in determination of the trial which does not require the physical custody of the vehicle with the court, and it may be released to the owner subject to the orders of the court upon the end of the trial, the restrictions on dealings thereof securing at least the physical loss. The court cannot insure against loss of the vehicle by loss of value on account of accident in the course of use, and the comparative benefit of use of the vehicle for the innocent until proven guilty accused or owner of the vehicle, as the case may be, would in my view out weight the loss of value of forfeiture of the motor vehicle in the end.Apart from the order for presentation of the motor vehicle in evidence before the order for release, a further order for expeditious trial may also lessen the time for conclusion of the matter and determination of whether or not to forfeit, in the interests of Applicant owner, the prosecution, and the accused. The court shall impose a time line with which to present the vehicle in evidence.”

32. This court truly believes that had the above case been cited before the trial court, it would have made different orders from what it made declining the application for release of the motor vehicle to the applicant herein. I say so because the vehicle has been produced as an exhibit and the case is at the tail end where the accused is due to tender his defiance. The accused does not claim ownership of the vehicle in question and the vehicle can be photographed and an order made restricting its disposal and production into court as and when it is required to do so.

33. For the above reasons, I allow the application for revision of the orders made by the trial magistrate in Kisumu CM Cr Case No. E157 of 2023 and order as follows:a.The application for revision dated 23rd May, 2023 is hereby allowed.b.That the order made in Kisumu CM Cr Case No. E157 of 2023 declining the application for release of Motor vehicle the motor vehicle registration Number KDA 321RMercedes Benz Axor and its trailer ZF6300 made on 22/5/2023 by the trial court is revised.c.The motor vehicle KDA 321R and its trailer ZF6300 shall be released to the applicant Surf Hauliers Limited within Seven (7) days of today upon the investigating officer photographing the said motor vehicle if he has not done so already and presenting to court the photographs of the said motor vehicle with its contents, and upon the director of the said company, not an employee or manager, appearing before the trial court to give an undertaking on oath in court, not to sell, dispose of, transfer ,dismantle or in any manner dispose the said motor vehicle and its trailer and to produce it in court on an order of the trial court as and when required to do so.d.This order and ruling to be served upon the said Director of the applicant company to comply.

34. This file is now closed.

35. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 4THDAY OF OCTOBER, 2023R. E. ABURILIJUDGE