[2021] KEHC 1085 (KLR)
The High Court found that the trial court's order of forfeiture was made without issuing a notice to show cause, thereby violating the applicants' right to due process. The respondent failed to oppose the application despite multiple opportunities. The court was satisfied with the applicants' affidavit evidence and...
Source-derived case information.
- Citation
- [2021] KEHC 1085 (KLR)
- Parties
- Applicant: Timon Ayieko Ochieng; Applicant: Juma Kombo Done; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E001 of 2020
- Procedural Posture
- Criminal Revision / Ruling on Application for Release of Forfeited Property
- Outcome
- application allowed
- Legal Topics
- Forfeiture of Property, Criminal Revision Procedure, Notice to Show Cause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Timon Ayieko Ochieng
Applicant
Juma Kombo Done
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Release of Forfeited Property
Legal Issues
- 1 Whether the order of forfeiture of Motor Vehicle Registration Number KCX 348 C was made without due process.
- 2 Whether the applicants are entitled to the release of the motor vehicle.
- 3 Whether the trial court erred in declining to comply with the High Court's directive to follow proper procedure.
Ratio Decidendi
The High Court found that the trial court's order of forfeiture was made without issuing a notice to show cause, thereby violating the applicants' right to due process. The respondent failed to oppose the application despite multiple opportunities. The court was satisfied with the applicants' affidavit evidence and supporting documents, and in the absence of any opposition, allowed the application for the release of the motor vehicle to the 1st applicant.
Court Disposition
application allowed
Orders
- Motor vehicle Registration KCX 348 C Mazda Demio to be released to the 1st Applicant forthwith.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL REVISION NO E001 OF 2020
TIMON AYIEKO OCHIENG.....1ST APPLICANT
JUMA KOMBO DONE..............2ND APPLICANT
-VERSUS-
REPUBLIC......................................RESPONDENT
R U L I N G
1. The Applicants Timon Ayieko Ochieng and Juma Kombo Done by an application dated 7th October 2020 that prayed that Motor Vehicle Registration Number KCX 348 C be released unto them as it belonged to 1st Applicant who had bought it on hire purchase and leased it to 2nd Applicant. They also prayed that order of forfeiture made on 30th September 2020 by the trial court in Mombasa CMC CR. Case Number 1353 of 2020 be released.
2. The Application was supported by the grounds on the face of Notice of Motion and the Supporting Affidavit of 2nd Applicant together with annextures thereto.
3. The Respondent was served but they didn’t file a response.
4. This court went through the trial courts proceedings and established that the order of forfeiture was made without a notice to show cause being issued. The matter was referred to the trial court to undertake proper procedure but the trial magistrate declined to do so on allegations of lack of jurisdiction.
5. Failure by the trial court to act on the orders issued by the High Court prompted the Applicants to move this court to reconsider orders issued on 17th November 2020 and 26th February 2021.
6. Upto the time that the Applicant’s sought the courts intervention, a second time, the Respondent had not filed a response opposing or conceding to the application.
7. On 6th October 2021 Mr. Mulamula for Respondent was given 7 days to respond to the application but still on 13th October 2021 there was still no response.
8. On 22nd October 2021 Mr. Mulamula informed the court that the Investigating Officer had prepared a response which was to be filed by close of business and they were granted 3 days to file a response and submissions but as I write the ruling no such response or submissions are in the file.
9. In the circumstances that the Respondent have not filed a response opposing the application and in consideration of the affidavit by the 2nd Applicant and annextures thereto this court has no reason to disallow the applications.
10. The application dated 7th October 2020 is allowed. Motor vehicle Registration KCX 348 C Mazda Demio to be released to 1st Applicant forthwith. Orders accordingly.
DATED, SIGNED AND DELIVERED ONLINE THROUGH MS. TEAMS ON THIS 9TH DAY OF DECEMBER, 2021
HON. LADY JUSTICE A. ONG’INJO
JUDGE
In the presence of:-
Mr. Otolo – Court Asst.
Mr. Mulamula for Respondent
Ms. Wambani Advocate hold brief for Mr. Mwangunya for Applicant
HON. LADY JUSTICE A. ONG’INJO
JUDGE