Republic v Erick Ombagi

agreement dated 8th November 2022 with the Applicant for a loan facility of Kshs. 134,800/= to purchase a motorcycle registration No. KMGG 196V TVS STAR 100cc. He states that the said motor cycle was duly registered in the Applicant’s name as security for the advanced loan but that on or around 20th January 2024, while following up on the delayed monthly instalments from the Accused, they were informed that the suit motorcycle was in police custody and had been forfeited to the State vide Orders issued in Keroka Magistrate’s Court on 18th October 2023. 3. It was the Applicant’s case that they were neither aware of the existence of the said case nor were they summoned to show cause why the motor cycle should not be forfeited to the State. It was averred that the motor cycle was released to the Accused person who had not completed servicing the loan which had by then accrued arrears. 4. It was further averred that the Applicant was denied the right to a fair administrative action as provided under Article 47 (1) of the Constitution when they were not informed of the forfeiture orders yet they had a legal interest in the suit motor cycle. It was further averred contended that the suit motor cycle was at the risk of being sold or auctioned thus leading to the loss of their security over the loan that had been advanced to the Accused person. 5. The Respondent did not file any response to the application. 6. The application was canvassed by way of written submissions. I note that while the Applicant filed submissions, the Respondent conceded to the application. 7. The main issue for my determination is whether the Applicant has made out a case for the revision of the subordinate court orders of 18th October 2023. Analysis and Determination 8. 9. The Constitution of Kenya under Article 50 provides for the right of a party to seek redress from a superior court is dissatisfied with a court’s decision as follows: (2) Every accused person has the right to a fair trial, which includes the right- (q) if convicted, to appeal to, or to apply for review by a higher court as prescribed by law. The High Court’s revisionary powers are predicated on Article 165 of the Constitution which provides as follows: Article 165 1. 10. The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial, or quasi-judicial function, but not over a superior court. The Criminal Procedure Code breathes life into the said revisionary jurisdiction under Section 362 as follows: S. 362. Power of the High Court to Call for Records The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of any such subordinate court. 11. Section 364 further encapsulates the manner of exercise of the said revisionary powers thus: - https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19385/eng@2025-10-23 2

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S. 364. Powers of the High Court on Revision 1. In the case of a proceeding in a subordinate court, the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may – a. In the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence; b. In the case of any other order other than an order of acquittal, alter or reverse the order. 2. No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defense: Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned. 3. Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed that might have been inflicted by the court which imposed the sentence. 4. Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction. 5. When an appeal lies from a finding a sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed. 12. The import of the above provisions is that the High Court is vested with revisionary powers over subordinate courts which allow it to call for the records of the subordinate courts and consider their decisions in order to determine if they are correct, appropriate and legal. 13. In the present case, it was contended that the subordinate court rendered itself in a decision whose effect was to deprive the Applicant of their right to the suit motorcycle when it ordered for its forfeiture to the State. I have perused the Lower Court’s proceedings and I note that the Accused person herein was convicted on his own plea of guilty for the offence under Section 7 (1) (b) as read with Section 34 of the Alcoholic Drinks Control Act No. 4 of 2010. The Accused was subsequently sentenced to pay a fine of Kshs. 50,000/= or to serve 8 months’ imprisonment in default. The subordinate court went ahead to order that the motor cycle be forfeited to the State. 14. I also note, from the Record, that indeed there were no proceedings before the subordinate court in Keroka to establish if the said motor cycle belonged solely to the Accused person so as to warrant its direct forfeiture or if any other third parties had a legal or beneficial interest over the same. 15. I have also considered the fact that the Accused was charged with the offence of transporting alcoholic drinks without a license contrary to Section 7 (1) (b) as read with Section 34 of the Alcoholic Drinks Control Act No. 4 of 2010. I have considered the provisions of Section 34 of the said Act which stipulate the attendant punishment for the offence as follows: 34. Breach of licence Any person who sells an alcoholic drink or offers or exposes it for sale or who bottles an alcoholic drink except under and in accordance with, and on such premises as may be specified in a licence issued in that behalf under this Act commits an offence and is liable— https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19385/eng@2025-10-23 3

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a. for a first offence, to a fine not exceeding fifty thousand shillings or to imprisonment for a term not exceeding nine months, or to both; b. for a second or subsequent offence, to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding one year, or to both, and in addition to any penalty imposed under paragraph (a) or (b), the court may order, the forfeiture of all alcoholic drinks found in the possession, custody or control of the person convicted, together with the vessels containing the alcoholic drink. 16. The above provision indicates that besides imposing a fine or an imprisonment sentence, the court may also call for the forfeiture of the vessel used to transport the alcoholic substances without a license. It was on this basis that the trial court imposed the said forfeiture Order. 17. The question that this court has to grapple with is whether it was legal and appropriate for the subordinate court to automatically order for the forfeiture of the motorcycle that was used to ferry the alcoholic drinks without affording any interested party the opportunity to participate in the proceedings. 18. Section 389A of the Criminal Procedure Code sets out the manner in which the court should handle issues of forfeiture of property in criminal matters. It provides as follows: 389A. Procedure on forfeiture of goods 1. Where, by or under any written law (other than section 29 of the Penal Code (Cap. 63)), any goods or things may be (but are not obliged to be) forfeited by a court, and that law does not provide the procedure by which forfeiture is to be effected, then, if it appears to the court that the goods or things should be forfeited, it shall cause to be served on the person believed to be their owner notice that it will, at a specified time and place, order the goods or things to be forfeited unless good cause to the contrary is shown; and, at that time and place or on any adjournment, the court may order the goods or things to be forfeited unless cause is shown by the owner or some person interested in the goods or things: Provided that, where the owner of the goods or things is not known or cannot be found, the notice shall be advertised in a suitable newspaper and in such other manner (if any) as the court thinks fit. 2. 19. If the court finds that the goods or things belong to some person who was innocent of the offence in connection with which they may or are to be forfeited and who neither knew nor had reason to believe that the goods or things were being or were to be used in connection with that offence and exercised all reasonable diligence to prevent their being so used, it shall not order their forfeiture; and where it finds that such a person was partly interested in the goods and things it may order that they be forfeited and sold and that such person shall be paid a fair proportion of the proceeds of sale. From the above provisions, it is expected that before a court of law can order the forfeiture of goods, due process must be followed. Due process in this case required that the Applicants, who have adduced sufficient evidence to show that they had a legal interest over the suit motor cycle and were jointly registered as owners of the suit motor cycle with the Accused, to have been given adequate notice or served with a Notice to show cause why the motor cycle should not be forfeited to the State. It was only upon fulfilment of this obligation that the State and the subordinate court, in turn, would have afforded them adequate opportunity to state their claim over the said motor cycle. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19385/eng@2025-10-23 4

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20. It is clear that the Orders issued by the subordinate court on 18th October 2023 were made without due regard to the above provisions and in utter disregard to the principles of natural justice which required that a party should not be condemned unheard. There was no evidence to show that there was service of any Notice to the interested parties. Indeed, the Applicant stated that they only learnt that the motor cycle had been impounded and forfeited to the State when they began a follow up on its whereabouts after the Accused defaulted on his monthly loan repayments. 21. In the same breath, there was also no evidence to show that the Accused was, at the time of his arrest and arraignment before the subordinate court, employed by or was acting on the instructions of the Applicant to ferry the alcohol in question. This means that the Applicant had no way of knowing about the Accused’s illegal activities of transporting alcohol without a licence. It is therefore clear that the Applicant was condemned for the illegal actions of the Accused without a being accorded a hearing. 22. In Peter Igiria Nyambura vs. Director of Public Prosecutions [2018] KEHC 7016 (KLR) it was held thus: “ Applying the above principles I am satisfied that the owner of the motor vehicle registration no. KBL 373 was not served nor was he aware that his vehicle had been seized by the police for the alleged offence. The failure to serve notice both under Section 68 of the Act and Section 389A of the Criminal Procedure Code occasioned prejudice and a failure of justice against the applicant. 23. For the reasons that I have stated in this ruling, I find justification in reviewing with the said orders for want of legality and correctness. I find merit in the present Application and allow it. I direct that the Orders of 18th October 2023 issued in Keroka MCCR E678 of 2023 on forfeiture of the motorcycle registration No. KMGG 196V TVS STAR 100cc be and are hereby quashed. The suit motor cycle shall be released to the Applicant forthwith unless otherwise lawfully held. 24. I make no orders as to costs. 25. Orders accordingly. RULING SIGNED, DATED AND DELIVERED AT NYAMIRA VIRTUALLY VIA MICROSOFT TEAMS THIS 23RD DAY OF OCTOBER 2025. W.A. OKWANY JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19385/eng@2025-10-23 5

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