Joseph Kabuchwa Muya v Republic (Criminal Appeal 61 of 2004) [2004] KECA 149 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that vehicles used in forest offences can be forfeited without hearing the owner.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court of Appeal had jurisdiction to entertain an appeal from an order made by the High Court in the exercise of its revisionary jurisdiction.
- 2.Whether the High Court judge erred in declining to exercise her revisionary powers to reverse the forfeiture order where the appellant claimed he was not heard on whether the offending driver was his agent, in alleged breach of sections 14(2)(b) and (c) of the Forests Act.
- 3.Whether the judge misdirected herself in relying on the absence of the appellant's name from the logbook, and whether the forfeiture of the vehicle was harsh, punitive and unsustainable in law as the appellant was not an accused person.
Key legal issues
#Whether an appeal lies to the Court of Appeal from an order made by the High Court in its revisionary jurisdiction
Yes. Under section 361(7) of the Criminal Procedure Code (Cap 75), such an order is deemed a decision of the High Court in its appellate jurisdiction and is appealable to the Court of Appeal on a matter of law.
At the hearing the Court itself raised the jurisdictional question; counsel for the appellant wavered and counsel for the Republic submitted there was no right of appeal from a revisionary order. After careful scrutiny of section 361(7) of the Criminal Procedure Code, which deems a High Court revisionary order to be a decision in its appellate jurisdiction, the Court concluded the present appeal lay on a matter of law, clearing the way to determine the merits.
The construction of section 14(2) of the Forests Act: whether the owner of a vehicle used in a forest offence was entitled to be heard before forfeiture
No. The hearing safeguard in section 14(2)(b) applies only to compensation orders against a person other than the accused; forfeiture under section 14(2)(c) requires no prior hearing, and the order made in this case was one of forfeiture only.
The Court read section 14(2) as entitling the trial court, in addition to any other penalty, to order compensation and/or forfeiture. A compensation order may be made against a non-accused only where it is proved the convict was his agent or employee, and only after hearing that person on neglect or default. Since the magistrate made no compensation order but forfeited the vehicle as an implement of the offence under paragraph (c), the appellant's complaint of breach of paragraph (b) was misconceived.
Whether the trial proceedings disclosed illegality, impropriety or irregularity warranting revision of the forfeiture order
No. The magistrate was entitled to find the vehicle was used to transport illegally procured timber, and the High Court judge correctly declined to intervene in revision.
Revision under section 364 of the Criminal Procedure Code is directed at illegality, impropriety or irregularity in the proceedings below. The magistrate was satisfied that vehicle KMN 363 had transported timber illegally procured from the forest, which was the basis of forfeiture; the claimant neither featured in the proceedings nor appeared in the logbook. The Court of Appeal agreed with Okwengu J that nothing on the record justified intervention, the appellant having misapprehended section 14(2).
Legal principles established
#- An order made by the High Court in the exercise of its revisionary jurisdiction is deemed a decision of the High Court in its appellate jurisdiction and is therefore appealable to the Court of Appeal on a matter of law.
- Forfeiture of tools or implements (including a vehicle) used in the commission of a forest offence under section 14(2)(c) of the Forests Act may be ordered without first hearing the owner or any other person; the hearing requirement applies only to compensation orders against a person other than the accused under section 14(2)(b).
- A compensation order under section 14(2)(b) of the Forests Act cannot be made against a person other than the accused unless that person has first been given an opportunity to show that the offence was not due to his neglect or default.
Court orders
#- 1.The appeal was dismissed: "we are impelled to dismiss this appeal. It is so dismissed."
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Section 361(7) of the Criminal Procedure Code (Cap 75) - an order made by the High Court in the exercise of its revisionary jurisdiction is deemed a decision of the High Court in its appellate jurisdiction and is therefore appealable to the Court of Appeal on a matter of law.
Relief refused
#Reversal, by way of revision, of the order forfeiting motor vehicle KMN 363 to the State
The High Court judge correctly declined to intervene because the record disclosed no illegality, impropriety or irregularity; the request for revision was misconceived since forfeiture under section 14(2)(c) requires no prior hearing.
A finding that the judge misdirected herself on the ownership of the vehicle (logbook point) and that the forfeiture was harsh, punitive and unsustainable in law because the appellant was not an accused person
The Court found the forfeiture to be a lawful order under paragraph (c) of section 14(2) of the Forests Act and saw no error in the judge's handling of the ownership issue; the grounds predicated on breach of paragraph (b) failed because no compensation order was made.
Costs
No costs order was made; the judgment ends with the bare dismissal of the appeal ("It is so dismissed.").
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The provision is to the effect that an order made by the High Court in the exercise of the revisionary jurisdiction shall be deemed to be a decision of the High Court in its appellate jurisdiction. Accordingly, the decision of the High Court in this case was appealable to this Court on a matter of law.
There is no requirement under that provision that any person be heard before the tools or implements used in the commission of the offence are ordered forfeited.
The order of compensation cannot be made against a person other than the accused unless he has been given an opportunity to show whether or not the offence was committed without his neglect or default.
The upshot of this matter is that having found that the learned judge did not err in law in making the order that was made in revision, and that it is the appellant who misapprehended the pertinent provisions of the Forests Act upon which he predicated his application for revision, we are impelled to dismiss this appeal. It is so dismissed.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Kabuchwa Muya v Republic (Criminal Appeal 61 of 2004) [2004] KECA 149 (KLR)", Case Analysis (2004). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2004/149/eng@2004-05-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.