[2022] KEHC 14054 (KLR)

Watu Credit Limited v DPP & another (Miscellaneous Criminal Application E012 of 2022) [2022] KEHC 14054 (KLR) (19 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14054 (KLR)

Republic of Kenya

In the High Court at Nakuru

Miscellaneous Criminal Application E012 of 2022

TM Matheka, J

October 19, 2022

Between

Watu Credit Limited

Appellant

and

DPP

1st Respondent

DCI Kaptembwa Police Station

2nd Respondent

Ruling

1. According to the documents placed before me Zacharia Mwangi Njiru entered into an agreement with Watu Credit and obtained an asset finance loan through which he purchased a haojue 150-6 motor cycle classNo LC6PCKD71K0003089 registration number KMEW 771W, on August 14, 2019. The loan including fees was Kshs 199,500/= plus interest. It came to Kshs 203,610/=. His weekly repayments would be Kshs 3,338/=.

2. On February 22, 2022 an application was filed, notice of motion dated February 18, 2022 brought undert article 40 of the Constitution, section 157 and 118 of the Criminal Procedure Code, section 78(1) of the Evidence Act, seeking orders;“That the respondents be directed immediately to release the motor vehicle to the applicants to prevent inconveniences, losses, irreparable damage, wasting due to immobilization of the engine, in the alternative photographs of the same be taken for production at the hearing.”

3. According to the affidavit sworn by Jonathan Mugambo Kimathi sworn on February 18, 2022, the grounds of the application are that the motor cycle belongs to the applicant who is the legal and registered owner of the motorcycle, which possession was given to Zachary Njiru Mwangi on hire purchase facility. Zachary was on November 11, 2020 arrested and charged with murder in High Court Criminal Case Number E036 of 2021. The police impounded the motor bike as an exhibit against the accused person. That when the applicant noted that Zachary was no longer paying the instalments, they traced the motorcycle to Kaptembwa police station. In their attempts to recover the same they were told that the motorcycle was indeed an exhibit in the criminal case against Zachary. The application is therefore seeking the release of the motorcycle to them and that the investigating officer be directed to take photographs of the exhibits and retain them in lieu of the motor cycle and to release the it to them.

4. Annexed to the application is the log book for the motor cycle, in the name of Watu Credit, where Zachary Njiru Mwangi is the borrower. There are two guarantors and three referees. There is a five (5) page document of fine print (I can barely read it myself) headed schedule D Terms and Conditions Of The Mobile Loan Agreement, with initials of borrower, none of lender, Rules and Regulations of Watu Credit Asset Finance Loan signed by Zacharia Njiru Mwangi, an illegible “vehicle/asset loan agreement No 2019 – 016254”, initialed by Borrower, none by lender and other illegible documents signed by other people, one Damaris and bearing the initials of borrower.

5. Prior to the hearing of the application an out of court settlement failed. The State filed a replying affidavit opposing the application.

6. On May 25, 2022 parties made oral submissions.

7. Mr Mogire for the applicant submitted that the applicant is a business entity giving people motorcycles to pay for on a weekly basis. That the applicant was now making losses as the said Zachary had stopped paying for it, that the storage conditions at Kaptembwa police station were poor. That the applicant now wanted the motorcycle for re-sale or lending to another customer, and that photos of the motor cycle would sufficient for the criminal case.

8. Ms Murunga submitted that the state was opposed to the release of the motorcycle because the applicant wanted it released so that it would sell the motorcycle or lend to another customer, yet the motor cycle was an exhibit in a murder case before this court, that the prosecution fear was that if the motor cycle was released to the applicants and sold, even if the photos were taken at the time of producing it as exhibit, it would have changed hands and they may not have access to it; that the applicant was not accepting the fact that the motorcycle was encumbered by the criminal case and was not available for sale, that the applicant was not ready to disclose to any other party the fact of this encumbrance and that is where the problem was.

9. Further that at the hearing of the case the accused person from whom the motor cycle was impounded, would also want to see the exhibit.

10. In response, Mr Mogire submitted that any claim by Zachary was covered by the sale agreement whose condition was that failure to make repayments would lead to his losing any rights over the motor cycle.

11. Upon finalization of hearing and pending the ruling the matter was placed before the Deputy Registrar for purposes of supply of legible documents by the applicant.

12. I have carefully considered the application, the affidavits, annexures, submissions, the only issue for determination is whether the order sought by the applicant is tenable.

13. Article 40 of the Constitution provides for the protection of the right to property, sub Article (1) provides for the right to property, section 157 of the Criminal Procedure Code cited has no bearing to the issue before me.

14. Section 177 of theCriminal Procedure Code on the other hand cones under the part providing for “Restitution of property”. It states;“177. Property found on accused person

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.”

15. Section 78 of the Evidence Act Cap 80 Laws of Kenya provides for the admissibility of photographic evidence;“78. Photographic evidence—admissibility of certificate

(1)In criminal proceedings a certificate in the form in the first schedule to this act, given under the hand of an officer appointed by order of the Director of Public Prosecutions for the purpose, who shall have prepared a photographic print or a photographic enlargement from exposed film submitted to him, shall be admissible, together with any photographic prints, photographic enlargements and any other annex referred to therein, and shall be evidence of all facts stated therein.(2)The court may presume that the signature to any such certificate is genuine.(3)When a certificate is received in evidence under this section the court may, if it thinks fit, summon and examine the person who gave it.”

16. The first notable thing here is that the alleged borrower of the money from the applicant, is not a party to this application. Zacharia or Zachary is the person alleged to have borrowed money or entered into a hire purchase agreement with the applicant, while the applicant is seeking the protection of his own right to property his is treading all over the said Zachary or Zacharia’s right to be heard. He ought to have been the 1st respondent in the matter. Failure to join him in this application renders it a non -starter.

17. Coming to section 177 of the Criminal Procedure Code , it is clear that that provision of the law applies to restoration of property that is within the control of the Court. Before anything that the police have impounded is produced in court as an exhibit, the court has no powers of control over that property. The court cannot make orders over property that is not within its control. See Elijah Nyakebondo Onsongo v Republic [2017] eKLR where the court cited with approval Republic v Everlyne Wamuyu Ngumo Criminal Revision No 138 of 2016 (Embu). Before an exhibit is produced in court, the court has no power to deal with the exhibit, that would be tantamount to an interference with the evidence for the prosecution or investigations, whether or not the applicant has proved ownership of the property, it is not within the powers of the court orders the release of the same.

18. Section 78 of the Evidence Act is also applicable during the hearing of the case, when for instance the scenes of crime personnel wish to produce photographs of exhibits.1. This court that has not received the alleged exhibit in evidence and cannot direct the investigating officer, Directorate of Public Prosecutions on the form their evidence ought to take, whether the real thing or image of the real thing. That may amount to interference with the investigation or prosecution of the case.2. However, when the court has heard the witness producing the exhibit and it has come into the custody of the court, then the court has the discretion to deal with the exhibit as per section 177 of the Criminal Procedure Code.3. As it is now, the application is accordingly dismissed.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 19THDAY OF OCTOBER, 2022. MUMBUA T MATHEKAJUDGEC/A JenniferMogire for the ApplicantMs. Murunga for ODPP