Republic v Charles Mwangi Thuo

to satisfy itself as to the correctness, legality or propriety of the rulings in regards to ownership and release of exhibits. c. That the Honorable Court be pleased to review and set aside the rulings of Honorable R.K. Ondieki SPM dated 27th May, 2022. d. That this Honorable Court be pleased to review the ruling of Honorable R.K. Ondieki SPM on 27th May, 2022 which sought to grant the respondent herein to receive the unregistered goods. e. That the Court be pleased to grant any other order in the circumstances to protect the Constitutional mandate of the Applicant. Which application is supported by the following grounds, the Affidavit of CPL. Odeyo and Lawrence Kalwa Ikiba ; a) That the interested parties herein had been charged vide Criminal Case Number E3274 of 2020 for the offence of storage of pest control products without premises license contrary to section 2(1) of the Pest Control Products (Licensing of premises) regulations 2006 as read with section 12(1) of the Pest Control Products Act CAP laws of Kenya and keeping unregistered pest control products contrary to section 4(1) as read with section 12(1) of the Pest Control Products Act CAP 346 Laws of Kenya. b) That the Respondent herein was a defense witness DW4 in Criminal Case Number E3274 of 2020 and an applicant in MISC. Criminal Application Case No. E1660 of 2022 in which the trial court ordered for the release of the unregistered pesticides despite objection from the state. c) That the Respondent despite being granted the goods has no right to be in possession, authority for sale or distribution whatsoever of pesticides that are not registered with the regulatory body being Pest Control Products Board. d) That the Applicant despite raising an objection in the miscellaneous application opposing the release of the unregistered pesticides for use in Kenya and that since their quality status and their safety on human environment could not be ascertained the trial court went ahead to order the release of the same to the Respondent. e) That the trial magistrate proceeded and granted the orders without taking into consideration our objections and the effect that would have to the consumers if the unregistered pesticides were released. f) That as the custodian of the rule of law, it was expected of the learned trial court to uphold the rights on consumer protection as envisaged under Article 46 of the Constitution. g) That the Pest Control Products Board can only releasee the goods if they are duly registered and certified that it meets the quality standards for the consumer market. h) That the court gave the impugned orders for release of the goods to the Respondent yet the interested party had made a similar application on 23rd August,2021 that was not canvassed by all parties for determination by the trial court. i) The Applicant having exercised its lawful mandate to intercept the goods and the order by the trial court releasing the same will subsequently result to an illegality and open various litigation against the Applicant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11565/eng@2026-01-15 2

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j) That the respondent's application was brought in bad faith and was improper and illegal and ought not to have been entertained by the trial court. k) That it is in the interest of justice that this Application be certified urgent and heard. 4. The application was opposed by the respondent. The court issued directions that the matter be disposed off by way of written submissions. 5. The respondent filed his submissions on 23rd February 2024 after the applicant had filed their submissions on 11th February 2024. Applicant’s Case 6. The interested parties herein had been charged vide Criminal Case number e3274 of 2020 for the offence of Storage of Pest Control Products (Licencing of premises) Regulations 2006 as read with Section 12(1) of the Pest Control Products ACT CAP 346 Laws of Kenya and Keeping Unregistered Pest Control Products Contrary to Section 4(1) as read with Section 12(1) of the Pest Control Products ACT CAP 346 Laws of Kenya. 7. The respondent herein was a defense witness DW4 in Criminal case number E3274 of 2020 and an applicant in Misc Criminal Application case number E1660 of 2022 in which the trial court ordered for the release of the unregistered pesticides despite objection from the state. 8. The applicant averred that the trial Magistrate erred by proceeding and granting the orders without taking into consideration the objections by the state and the effect that it would have to the consumers if the unregistered pesticides were released for their use in Kenya and that since their quality status and their safety on human environment could not be ascertained. 9. The applicant relied on the replying affidavit dated 4th December 2023 and the grounds as stated on the face of the application which this court has duly concerned. 10. The applicant asserted that the ruling by the trial court was illegal, incorrect, or improper to warrant this court to exercise its revisionary power. 11. The Applicant submitted that the court has jurisdiction to entertain this application as provided by section 362 of the criminal procedure code. 12. The Section provides;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 any purpose of satisfying itself to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceeding of any such subordinate court. 13. The applicant submitted that in the Joseph Ndubi case, the court cited the Malaysian case of Public Prosecutor v Muhari bin Mohd Jani and another (1996) eLRC 728 where the court stated the object of revision proceedings as follows page (734-735): “ The powers of the High Court in revision are amply provided under Section 325 of the Criminal Procedure Code subject only to subsections (ii) and (iii) thereof. The object of revisionary powers of the High Court is to confer upon the High Court a kind of paternal or supervisory jurisdiction' in order to correct or prevent a miscarriage of justice. In a revision, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11565/eng@2026-01-15 3

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the main question to be considered is whether substantial justice has been done or will be done, and whether any order made by the lower court should be interfered with in the interests of justice............if we have been entrusted with the responsibility of a wide discretion, we should be the last to attempt to fetter that discretion..... This discretion, like all other judicial discretions ought as far as practicable, to be left untrammeled and free, so as to be fairly exercised according to the exigencies of each case." 14. In sum, the applicant asserted that revision powers are meant to prevent a miscarriage of justice. Section 364 Criminal Procedure Code sets out the revision jurisdiction of the court. It reads as follows: “ 364 (1) 15. 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 defence. 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 than 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, sentence or order, and no appeal is brought, no proceeding by way of revision shall be opp entertained at the insistence of the party who could have appealed." The Applicant argued that despite raising an objection opposing the release of the unregistered pesticides for use in Kenya and that since their quality status and their safety on human environment could not be ascertained, the trial Court went ahead to order the release of the same to the respondent. The respondent despite being grated the goods has no right to be in possession, authority for sale or https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11565/eng@2026-01-15 4

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distribution whatsoever of pesticides that are not registered with the regulatory body being pest control products Board. 16. According to the applicant the trial magistrate erred and acted illegally and improperly by proceeding to grant the orders without taking into consideration the Applicants objections and the effect it would have to the consumers if the unregistered pesticides were released. As the custodian of the Rule of Law, it was expected of the learned trial Court to uphold the rights on consumer protection as envisaged under article 46 of the Constitution. Respondent's Case 17. Respondent was a Defense witness and the tenant of the warehouse where the subject goods seized from formed the basis of the Criminal Matter; Nairobi Criminal Case No. E3274 of 2020 wherein the Interested Parties were charged. 18. The Interested Parties underwent a thorough trial process, and the Subordinate Court after careful examination of the evidence presented by all parties, it ultimately acquitted them under Section 215 of the Penal Code on 4th May, 2022. 19. The respondent submitted that it is instructive to note from the onset that the said judgment has not been appealed to date. 20. After delivery of the judgment and the subsequent acquittal of the Interested Parties, the Respondent, the tenant of warehouse No.2 where the subject goods were seized from and owner of the subject goods, promptly applied for the release of the seized goods through a formal application dated 16th May, 2022. 21. The said Application was vehemently opposed by the state and after careful consideration the court delivered its ruling on the matter on 24th May, 2022 with an order for release of the subject seized goods. 22. The state through an application dated 29th July, 2022 sought a revision of the above -mentioned ruling that ordered the release of the seized goods/exhibits. 23. The said application had been opposed by the Respondent's Replying Affidavit dated 4th December, 2023. 24. The respondent heavily relied on the contents and annexures on the said Replying Affidavit, 25. On the jurisdiction of this court to entertain the revision the respondent submitted that the powers of the High court in revision are contained in Section 362 through to 366 of the Criminal Procedure Code (cap.75). Section 362 specifically provides as follows: “ 362. 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". Section 364 of the Criminal Procedure Code Cap 75, states as follows: - "364. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11565/eng@2026-01-15 5

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(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 section 354, 357 and 358, and may enhance sentence; order. (b) in the case of any other order than an order of acquittal, alter or reverse th 2. No order under this section shall be made to the prejudiced of an accused person unless he had had an opportunity of being heard either personally or through 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 than 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 arises from a finding, sentence or order and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed." 26. The applicant submitted that it is clear from the above provisions of the Criminal Procedure Code that the High Court has wide powers in exercising its revisionary jurisdiction. 27. The respondent maintained that the Interested Parties having been acquitted under Section 215 Section 364(4), this Honourable Court does not have power to reverse the acquittal into a conviction so that the Court orders for the seizure of the subject goods. And that the acquittal of the interested parties had a nexus to the subject goods. 28. The respondent cited the decision of the Court of Appeal in Bichange v R (2005) 2KLR4 where the Honorable court explained the relevance of Section 364(4) as follows: “ The meaning of the section is plain. Where an accused person has been acquitted, the provisions in respect of revision cannot be used to turn an acquittal into a conviction. The trial magistrate had acquitted the appellant on the main charge of defilement under Section 145 of the Penal Code. In view of the provisions of Section 364(4) of the Criminal Procedure Code, Tuiyot, J had no power and was not entitled to convert that acquittal into a conviction." https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11565/eng@2026-01-15 6

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Similarly, in the case of DPP vs Gilbert M'ringera Kiungu & Another [2018] eKLR where the court, relying on the Court of Appeal decision in Rueben Nyamai, held that: “...... ... revisionary powers cannot be exercised on an acquittal but that where a person has been acquitted, the prosecution has a right to appeal." Republic v Mark Lloyd Stevenson [2016] eKLR Joel Ngugi J held as follows while addressing section 364(5) of the Criminal Procedure Code; ...... that a party who has a right of appeal cannot "insist" on invoking the High Court's power of review; in other words, such a party does not have a right to have the court review the decision s/he is aggrieved of. The only sure way to have such grievances heard and considered as a matter of right is through an appeal... 29. In the instant case, the respondent contended that the interested parties underwent a thorough trial process which involved testimonies of witnesses both from the state and the Defense, during which they were acquitted under section 215 of the Penal Code against the charges brought against them. 30. No appeal was preferred against the acquittal, to date the judgment delivered in E3274 of 2020 stands as the final judgment in the case. 31. The respondent went on to submit that the release of the exhibits is closely tied to the outcome of the criminal proceedings. The exhibits in this case were linked to the criminal charges brought against the Interested parties and formed an essential part of the trial. According to the respondent the applicant wants this court to treat the said exhibits as separate and distinct from the case in Criminal E3274 of 2020 which is untenable in law. 32. The respondent further argued that the grounds presented in the Revision application that the release of unregistered pesticides for use in Kenya, their quality and safety cannot suffice as grounds for a revision. The said grounds were presented during the trial, the legal burden of proof fell on the state to avail evidence pertaining the registration status, quality and safety of the pesticides which evidence was not availed and thus lost their case. 33. The respondent thus argued that the applicants having failed to prove their case cannot approach this court through a revision to overturn the trial court’s decision. 34. The respondent went on to submit that in normal circumstances, the retention of the exhibits during trial and appeal is considered apt to help the court to determine whether the accused persons are innocent or guilty. 35. In the case of State v Moses Macharia Kigo [2019] eKLR the court while pronouncing itself in an issue where the state wanted the released sugar(exhibits) to the accused person after they were acquitted of the counts they were facing charges be revised R.P.V. Wendoh J held as follows; “ It is obvious that the applicant was aggrieved by the decision to acquit the respondent and the way to challenge their grievance was through an appeal. For that reason, I find that the acquittal of the respondent on Count IV to VII and the order to release the exhibits were part and parcel of the court's order which was appealable but the applicant opted not to appeal. They cannot purport to sever the acquittal and release of exhibits to challenge it through a revision order for reasons already stated" https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11565/eng@2026-01-15 7

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36. The respondent went on to submit that Pest Control Products Act CAP 346, Section 10 provides for Forfeiture of the Pest Control Products, (3) A court convicting any person for an offence under this Act or any regulation made thereunder(a) may order that any pest control product in relation to which the offence was committed shall be forfeited to the state; and (b) may make such order as it may deem proper as to the payment by the defendant of all or any fees and other expenses incidental to the analysis and disposal of a pest control product in respect of which the conviction is obtained. 37. The respondent maintained that the applicants having lost the criminal case they could not seek forfeiture of the exhibits under the Act. 38. The silence of the Act on the matter of acquittal does not prevent the release of the seized goods. The respondent urged the court to invoke the principle of fairness, justice and find that the property rights dictates that the seized goods released should remain with the Respondent unless there are compelling legal grounds to justify their forfeiture which reasons and or evidence has not been presented before this Honourable Court. 39. It was further argued for the respondent that this application has been brought in bad faith by the Applicants. They failed to appeal the judgment of the court delivered on 4th May, 2022 waited for the goods to expire in the alleged month of June 2022 and filed an application for revision close to 60 days later after the goods have expired. 40. The respondent further urged the court to find in their favor that the State has demonstrated bad faith and abuse of the Court Process with invocation of its supervisory powers over the trial Court ruling and humbly request that the application dated 29th July 2022 be dismissed. Analysis and Detremination 41. The accused persons in the lower court were Philip Njuguna Kimani and Isaac Mwaura Kimani the first and second interested parties to the application. The two accused persons were acquitted by the trial court on 4th of March 2022. The record does not show that the state preferred an appeal against their acquittal. 42. The decision of the trial court on the criminal culpability of the two in relation to the property in issue remains valid and final. 43. The applicant throughout their submission did not state why they elected the path of a revision in respect of the ruling ordering the release of exhibits as opposed to the filing of an appeal against the acquittal of the interested parties. Interestingly, the impugned ruling was delivered on 24th May 2022 which was close to two months after the acquittal of the interested parties. 44. The applicants throughout their submission remained silent as to why there was no action on their part between 4th of March and 29th of July 2022. It is clear that the revision application was triggered by the decision of the court to allow the Notice of Motion dated 16th May 2022 thereby directing the release of exhibits. 45. If the state was aggrieved by the decision of the trial magistrate acquitting the interested parties, the proper thing for them to do would have been to prefer an appeal against the acquittal. Where an appeal is not preferred there is absolutely no reason why a court should continue holding exhibits produced in https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11565/eng@2026-01-15 8

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the trial. The High court exercising its powers of revision cannot convert the acquittal into a conviction under Section 364(5) of the Criminal Procedure Code. 46. The court or the investigating entity has absolutely no legal reason to continue holding the seized property once a decision has been reached acquitting the accused person. The trial court should at the conclusion of the trial make orders on disposal of the exhibits after the period allowed for an appeal lapses and no appeal is filed. 47. The Criminal procedure code lays it bare what should happen to seized property at the conclusion of a trial. Section 121 of the Criminal Procedure Code provides;Detention of property seized (1) When anything is so seized and brought before a court, it may be detained until the conclusion of the case or the investigation, reasonable care being taken for its preservation. (2) If an appeal is made, or if a person is committed for trial, the court may order it to be further detained for the purpose of the appeal or the trial. (3) If no appeal is made, or if no person is committed for trial, the court shall direct the thing to be restored to the person from whom it was taken, unless the court sees fit or is authorized or required by law to dispose of it otherwise. 48. As earlier on stated the applicant has not told this court that there. Is an appeal pending thus there is absolutely no basis of the continued detention of the property. 49. The applicant has not demonstrated any irregularity, illegality, impropriety or incorrectness of the order issued by the learned trial Magistrate. It would therefore be improper for this court to invoke its powers under Section 364 in Criminal Procedure Code and vary the decision of the learned honorable magistrate. 50. The scope of powers of revision is well defined and a revision cannot be a substitute for an appeal where the state is aggrieved by the substantive merit of the decision of acquittal and the consequential orders of release of exhibits as envisaged under Section 121 of the Criminal Procedure Code. 51. The trial court in its ruling of 27th May 2022 was basically addressing the continued holding of the exhibits after the acquittal of the interested parties. The trial court in law was the proper forum for the application leading to the orders of 27th May 2022 to be made. Had the applicants proceeded to release the exhibits immediately after the acquittal of the interested parties , the trial court would not have been called upon to intervene. In Republic vs. The Commissioner of Lands Ex parte Lake Flowers Limited Nairobi HCMISC.Application No. 1235 of 1998 the court held that : “ The court will be called upon to intervene in situations where authorities and persons act in bad faith, abuse power, fail to take into account relevant considerations in the decision making or take into account irrelevant considerations or act contrary to legitimate expectations.” 52. The court remains the guardian of individual’s rights and where a party approaches the court aggrieved by the action of a state agency the court should be at liberty to examine the complaint and deal with the merit thereof in line with the law. The fact that interested parties had been acquitted of the charges took away the legitimate authority upon which the detention of the properties rested . Any further detention of the properties without an order of court amounted to a deprivation of the right to property under https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11565/eng@2026-01-15 9

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Article 40 of the Constitution. The trial court was therefore within the law to intervene in the manner it did. 53. In Keroche Industries Limited vs. Kenya Revenue Authority & 5 Others Nairobi HCMA No. 743 of 2006 [2007] KLR 240 the learned Judge expressed himself as follows: “ On the issue of discretion Prof Sir William Wade in his Book Administrative Law has summarized the position as follows: The powers of public authorities are --- essentially different from those of private persons. A man making his will, may subject to any right of his dependants dispose of his property just as he may wish. He may act out of malice or a spirit of revenge, but in law, this does not affect his exercise of his power. In the same way a private person has an absolute power to allow whom he likes to use his land ……regardless of his motives. This is unfettered discretion. But a public authority may do none of these things unless it acts reasonably and in good faith and upon lawful and relevant grounds of public interest The whole conception of unfettered discretion, is inappropriate to a public authority which possesses powers solely in order that it may use them for the public good. But for public bodies the rule is opposite and so of another character altogether. It is that any action to be taken must be justified by positive law. A public body has no heritage of legal rights which it enjoys for its own sake, at every turn, all of its dealings constitute the fulfilment of duties which it owes to others; indeed, it exists for no other purpose…But in every such instance and no doubt many others where a public body asserts claims or defences in court, it does so, if it acts in good faith, only to vindicate the better performances of the duties for whose merit it exists. It is in this sense that it has no rights of its own, no axe to grind beyond its public responsibility; a responsibility which define its purpose and justifies its existence, under our law, that is true of every public body. The rule is necessary in order to protect the people from arbitrary interference by those set in power over them…Certainty of law is an important pillar in the concept of the rule of law. As is no doubt clear in the findings in this case, it is an essential prerequisite of business planning and survival as well. Yes, the rule of law is a lifeline of the economy as is illustrated in the emerging and thriving economies of the world. The courts in my view have a responsibility to uphold the rule of law for this reason. The ability of businesses to plan stems from the bedrock of the rule of law. “ 54. This court finds no illegality, incorrectness, impropriety or irregularity in the order of release of the exhibits. The germane question the applicant should answer is this; if the court were to agree with them, and the revise the learned Honorable Magistrate’s order what purpose would it serve the interest of justice given that there is no appeal against the acquittal of the interested parties? That question remains unanswered by the applicant and the court will say no more about the matter. 55. The state ought to have done better in this case by filing an appeal if they indeed felt and believed that they had unfairly lost the criminal trial and that there was great danger to society if the properties were to be released to the respondents. Their failure to do so simply defeats their own argument that the trial court may have ignored the potential danger if any the properties posed to society. The order sought was in the nature of an equitable relief thus the state was under duty to demonstrate that they were not indolent and that they had come to equity with clean hands by preferring an appeal. 56. Lastly, the respondent alluded to a possibility that the exhibits may have since expired whilst in custody, that issue cannot be determined within the course of these proceedings and if at all that is the position, the respondent is at liberty to seek appropriate remedies in the appropriate forum. 57. The upshot of the above is that the revision application fails in its entirety. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11565/eng@2026-01-15 10

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It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 15TH DAY OF JANUARY, 2026. A. M. MUTETI JUDGE In the presence of: Habiba: Court Assistant Ms Ogega for the Applicant Orenge for Respondents https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11565/eng@2026-01-15 11

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