High Court 13233 of 2021

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CRIMINAL DIVISION CRIMINAL REVISION NUMBER E016 OF 2021 BETWEEN STEPHEN VICKER MANGIRA............................................APPLICANT -VSREPUBLIC........................................................................RESPONDENT ASSET RECOVERY AGENCY...............................INTERESTED PARTY RULING 1. Stephen Vicker Mangira was jointly charged with three others in Shanzu Chief Magistrate Court Criminal Case no 257 of 2017 but after the conclusion of the trial he was acquitted in Counts II, IV, XII under section 215 of the Criminal Procedure Code. The trial Magistrate however declined to make orders regarding release of the exhibits for reasons that the same were subject to proceedings before the High Court. 2. The applicant was aggrieved by this order and by a letter dated 31 st May, 2021, his advocate wrote to the Deputy Registrar requesting that the lower Court records be placed before the judge for revision of the trial Magistrates order refusing to release the exhibits to the applicant. The applicant based his application on the fact that the Asset Recovery Agency did not seek any order to hold the exhibits after the acquittal and that the trial Court had no jurisdiction to make civil orders in criminal proceedings. 3. The applicant argued further that the trial cannot be described as fair as envisaged under Article 25 (c) of the Constitution if after an acquittal the Court refuses to release property of an innocent person, he further claimed that his rights under Articles 27 (1) & (2), 31 (b) & 40(6) had been violated by the refusal to release his money and motor vehicles which had not been showed to have been acquired unlawfully. That the respondents did not file an appeal within the prescribed period of time which has since lapsed, therefore, the continued holding of exhibits was a violation of the presumption of innocence under Article 50 (2) (a), 4. The application was opposed by grounds of opposition dated 16 th June, 2021, in which it was argued that orders sought against the judgment of 12th May, 2021 are not available in law; that there is no error apparent on the face of the record nor is the judgment of the trial Court illegal, incorrect or improper and the threshold for application for revision has not been met. The respondent’s argued that the applicant has not filed a Constitutional petition despite claiming that his Constitutional rights have been violated and the Constitutionality or otherwise of the appointment of the Director Assets Recovery Agency cannot be a subject of these proceedings. 5. It was argued that the application for revision is frivolous and vexatious and an abuse of the Court process because it cannot be used as an appeal against the preservation orders made in High Court Misc. Civil Application No. 195 of 2017. The respondents argued that there is a danger that this Court may give conflicting orders if the revision application is heard in exclusion of Mombasa High Court Civil Application No. 195 of 2017 which was filed on 13th July, 2017. 6. A preliminary objection was also raised by principal state Counsel for director Asset Recovery Agency to the effect that the Court lacks jurisdiction to grant the orders sought where there are proceedings for forfeiture pending in a Court of concurrent jurisdiction. It was also argued in the objection that the applicant is a vexatious litigant who had filed another application in Mombasa Civil Misc. Application No. 195 of 2017 seeking similar orders and which was pending ruling on 9 th July, 2021. The director Asset Recovery also indicated that the exhibits which are sought to be released are subject of an application for forfeiture in Mombasa High Court Civil Misc. Application No. 269 of 2017. 7. It was further argued that the application for revision raises issues that were not subject of the criminal proceedings and was therefore incompetent, misconceived, an abuse of the Court process and should be dismissed.

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