Republic v Chief Magistrate Nakuru

2. The Ex-parte Applicant avers through affidavit purportedly sworn on 15th November, 2024 that his subject motor vehicle was found to have been used to remove forest produce without a permit contrary to Section 64 (1) as read with Section 64 (2) and 68 (1) of the Forest Conservation and Management Act. The vehicle had allegedly been rented to the Interested Party to transport construction materials when it was arrested, and the Interested Party as well as his driver were charged with the ofience alluded to above. They pleaded guilty to the ofience and were each sentenced to a fine of Kshs.20,000 which they paid and got released. According to this Ex-parte Applicant, the vehicle was impounded and detained by the Kenya Forest Service Yard in Pyrethrum Nakuru, on the ground that it was involved in illegal activities. The Ex-parte Applicant contends that he never permitted the vehicle to be used in any illegal activities. 3. I have perused the Application and other filings in the Court’s e-filing portal. An Affidavit of Service of the Application filed in the portal indicates that an unnamed Court Assistant received the Application and signed and/or stamped on the Ex-parte Applicant’s copy. It is unclear whether the Court Assistant is authorized to receive court process on behalf of the Respondent. Besides, a copy of the Application showing evidence of receipt is not filed. There is therefore no proof of proper service, of the Application, if at all. 4. On this ground alone, the Application would fail. Were the court to consider its merits, if only for academic purposes, it is now trite law as observed in many judicial authorities that judicial review orders including those in the nature of certiorari are concerned with the decision making process and not the merits of a decision in question (See case law in Republic v Kenya Revenue Authority Ex-parte Yaya Towers Limited (2008) eKLR). 5. In Republic v Nairobi City Council and Hannah Waithira Gatundu Ex-parte Boniface Gichimu (20006) eKLR, it was explained in pertinent part thus; “ ….It is now a cardinal principle that save in the most exceptional circumstances, judicial review jurisdiction would not be exercised and the Court must not exercise it where there exists an alternative remedy…”. 6. Section 389A of the Criminal Procedure Code allows the owner of property liable to forfeiture or any other interested party, to show cause why the property should not be forfeited before any forfeiture order is issued. The Ex-parte Applicant does not show if this procedure was exhausted. The proceedings of the trial court have not been exhibited for the court’s perusal. 7. The Ex-parte Applicant further seems to state that the vehicle in question is in the custody of the Kenya Forest Service. If this be the case, this public body has not been joined to these proceedings 8. It would in the premises, appear that the Ex-Parte Applicant has not first approached the lower court for redress before bringing this Application. The remedy of certiorari is not available to him in the circumstances. There are no exceptional factors foregoing demonstrated to warrant bypassing the provided alternative forum. 9. For the foregoing reasons, the Application is dismissed with no order as to costs. JUDGEMENT SIGNED, DATED, AND DELIVERED AT NAKURU. THIS 12TH DAY OF NOVEMBER, 2025. J. M. NANG’EA JUDGE. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16343/eng@2025-11-12 2

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In the presence of: Mr. Ombati Advocate for the Ex-parte Applicant Respondent – Absent Interested Party - Absent Court Assistant - Jennifer J. M. NANG’EA JUDGE. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16343/eng@2025-11-12 3

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