John Nderu Mwaura Gathuku v Jens Olaf Epkes

Kshs.1,700,000/= by falsely representing himself as the owner of the motor vehicle a fact you know to be false. The applicant took plea and was released on bond and the matter set down for pretrial. Vide an application dated 29/10/2024 the applicant approached the court for orders of release on the motor vehicle and the log book to him as he is registered owner. He also sought that the Investigating Officer takes photos of the vehicle or give a date on priority to have the vehicle produced in court as it was being vandalized and is likely to go to waste. I called fot the file and went through the record. The Law Section 177 of the Criminal Procedure Code provides thus “ Where upon the apprehensions if a person charged with an ofience, 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 part thereof be applied to the payment of any fine or any costs or compensation directed to be paid by the person charged”. The provision does not expressly indicate the stage of the proceedings at which the court may exercise such powers. However, a careful analysis of the provision reveals that the court may exercise such powers during the pendency of the hearing or upon conviction of the accused person. Furthermore, the provision does not distinguish between property intended to be used as an exhibit and that which is not intended to be used as such. The Court has also pronounced itself on release of exhibits although there are divergent opinions over the same . In the case of John Syimonjero vs Directorate of Public Prosecution & Another [2018] eKLR a motor vehicle had been detained by the police and it was stated that the same would be used as exhibit a murder trial. Lagat Korir J ordered for the release of the motor vehicle and observed that it was an established practice by the court that a motor vehicle would normally be released to the owner on condition that it would be availed whenever required by the court. The court further orders that ownership of the motor vehicle was not contested. In the case of Republic vs Everlyine Wamuyu Ngumo [2016] eKLR, the trial court ordered for release of a motor vehicle to the respondent who was the accused person. The prosecution moved the High court for revision arguing that the motor vehicle was intended to be used as an exhibit in the trial. While reversing the order, Bwonwong’a J held as follows: “ I find that the trial court was not entitled to direct that the motor vehicle be released to the respondent/accused in order as that court put it “to save if from the wear and tear due to immobilization of the engine”. The reason for this is that the motor vehicle had not been produced as an exhibit in court. It is only when some properly including a motor vehicle have been produced as an exhibit in court that court is then seized with the jurisdiction to order for its disposal. In the authorities above in which the court ordered for release of the items in issue, there was no dispute on ownership. The instant application reveals that there is a dispute as to the ownership of the motor https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13294/eng@2025-07-17 2

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vehicle. Both parties have claimed ownership of the motor vehicle. The accused is also charged with an ofience of Obtaining Registration of Motor Vehicle by False Pretense Contrary to Section 320 of the Penal Code. This therefore brings to my mind the question of whether the release will defeat the purpose of the criminal case. In the authority of Cape Van International Ltd (supra), Kimaru J held in part as follows:“ In the instant case, the said learned Magistrate could not possibly be in a position to make a finding as to the ownership of the said goods as the criminal trial has yet to commence. It has been stated that there is a rival claimant of the said goods. In the absence of a positive determination by the trial Court in the criminal case as to the true owners of the stolen goods, the provisions of Section 177 of the Criminal Procedure Code may not be invoked”. In Joseph Kithuku Kitonga & another Officer in Charge of Police Station Bamburi & 3 Others [2020] eKLR, Ong’injo J held that where two parties are disputing on goods and ownership it would be unjust to release the exhibits to one party without the court determining the ownership by either of the parties in a trial. From the statement of the ofience and the particulars thereof, this court would be expected to determine over whether the accused person was an agent of the complainant, whether the funds for purchase of the motor vehicle had been entrusted to him by the complainant or he raised them by himself. There is an issue of whether they were bonafide shareholders of a company as alleged by the complainant the application before court has raised these issues. I agree with the trial court that if the court resolves these issues through the applications, the purpose of the criminal trial would be defeated. It would lead to a premature determination of the guilt or otherwise of the accused person. That is because the ownership of the vehicle is what is in issue before the trial court. I therefore find that there was no error ,illegality , irregularity nor any impropriety by the trial court, to warrant any intervention by the superior court. Disposition 2. In view of the foregoing, I find no merit in the applicant’s application and I dismiss it with following orders. a. Motor vehicle registration number KBX 758 Make Toyota Hillux Currently under the custody of the OCS Mtwapa Police Station or the Police generally shall continue to be in such custody until further orders of this court or court of competent jurisdiction. b. The OCS Mtwapa Police to ensure the safety of the motor vehicle while in is custody. c. The trial court to expedite the matter. d. No orders as to costs, DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 17TH DAY OF JULY 2025 HON. LADY JUSTICE W. K. MICHENI JUDGE In the presence of: MR SIRIMA for the state Bebora court Assistant HON. LADY JUSTICE W. K. MICHENI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13294/eng@2025-07-17 3

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SIGNED BY: HON. LADY JUSTICE WENDY MICHENI https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13294/eng@2025-07-17 4

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