Epublic of Kenya v D.c.i.o. Kitui Central & 2 others

EPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KITUI CRIMINAL MISC. APPLICATION NO. 24 OF 2017 FRED MWAURA KIMANI........................................APPLICANT VERSUS D.C.I.O. KITUI CENTRAL...............................1ST RESPONDENT THE O.C.S. KITUI POLICE STATION..........2ND RESPONDENT DIRECTOR OF PUBLIC PROSECUTION....3RD RESPONDENT RULING 1. By a Notice of Motion dated the 3rd April, 2017, the Applicant, Fred Mwaura Kimani seeks orders as follows: (i) That the Motor Vehicle Registration Number KCD 339J detained at Kitui Police Station be released forthwith to the Applicant Fred Mwaura Kimani, by the OCS Kitui Police Station or by the officerer under the direction of the OCS Kitui Police Station. (ii) That the Applicant to be ready to avail the Motor Vehicle any time that the Court may ask for it. (iii) That the Director of Public Prosecutions Kitui County do serve the order on the OCS Kitui Police Station. 2. The application is premised on grounds that the Applicant purchased the subject motor-vehicle through the Asset Finance Loan from Equity Bank (k) Limited and it’s jointly registered in his name and that of the Bank. The motor-vehicle has been in police custody since April, 2016 awaiting investigations into an offence of Conspiracy to Defeat Justice contrary to Section 117 of the Penal Code. That the loan has remained un-serviced since then such that the bank has threatened to repossess the motor-vehicle to exercise its right of re-sale to recover the unpaid amount plus interest thereon and that a similar application was made before the Chief Magistrate who declined to rule on it on the ground that it was overtaken by events as the High Court ordered a retrial in Kitui Criminal Case No. 357 of 2016 in which the subject motor-vehicle is an exhibit. But, since photographs of the motor-vehicle have been taken they can be used during trial. 3. In an affidavit in support of the application, the Applicant deponed that Kimani Kamau hired his motor-vehicle to use within Kitui West. He failed to return it on the 9th April, 2016 therefore he carried out a search only to find that Kimani Kamau had been arrested and charged for the offence of Transporting Charcoal without a Permit in Kitui Chief Magistrate’s Court where he was convicted and sentenced. 4. On learning that he was required to appear before Court to show cause why the subject motor-vehicle should not be forfeited to the State he appeared before Hon. Rose Ombata on 11th April, 2016 who warned him and issued an order for release of motor-vehicle. 5. That on the 13th April, 2016, No. 232022 C I Daniel Thuku obtained orders to detain the subject motor-vehicle pending investigations into the offence of Conspiracy to Defeat Justice as provided by Section 117 of the Penal Code. He moved the Court to have the motorvehicle released which ruled that the application had been overtaken by events as a retrial had been ordered in Kitui Criminal Case No. 357 of 2016 in which the motor-vehicle was an exhibit. 6. It was the Applicant’s averment that he is suffering unfairly for an offence committed by Kimani Kamau and it is only proper for the subject motor-vehicle to be released to him pending a retrial. The continued detention of the motor-vehicle is harmful as it exposes him to irreparable loss and damages and grave financial loss. 7. In a supplementary affidavit the Applicant averred that suspects were charged with the offence of Conspiracy to Defeat Justice and he is a witness.

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