1. The Applicant approached this Court vide a Notice of Motion Application dated 10/12/2024 seeking the following orders;
1) Spent
2) Spent
3) This Honourable Court be pleased to call for the Court record in Eldoret Chief Magistrate Criminal Case No. E1780 of 2022 and review, vacate and/ or set aside the order dismissing the Applicant’s Application dated 13th September 2024 and order directing that motor vehicle registration No. KAP 119G be returned to the DCI Eldoret police station.
4) The Honourable Court be pleased to issue an order directing DCI Eldoret police station to release the Applicant’s vehicle registration No. KAP 119G to the Applicant.
5) The Honourable Court be pleased to order that the trial of the 1st and 2nd Respondent Eldoret Chief Magistrate Criminal Case No. El 780 of 2022.be heard by any other magistrate other than the trial magistrate Hon.D. Mikoyan.
2. The Application is expressed to be brought under Sections 362, 364 and 177 of the Criminal Procedure Code, and under Articles 40 and 165(6) of the Constitution. The Application is also premised on the contents of the Supporting Affidavit sworn by Sheila Jelagat Kipkulei, the Applicants’ Director.
3. In her affidavit, the Deponent stated that Applicant is the complainant in Eldoret Chief Magistrate Criminal case No. 1780 of 2022 whereas the 1st and 2nd Respondent therein are the accused persons. She deposed that she is a beneficial owner of the suit motor vehicle registration no. KAP 119G and annexed the sale agreement for the same as SJK-19a-d). Further, that the 1st Respondent, without any colour or right attempted to unlawfully repossess the suit motor vehicle with the ulterior motive to have the suit motor vehicle disposed of having caused the same to be illegally transferred into her names prompting filing of charge against the accused persons vide Eldoret chief Magistrate Criminal Case No. 1780 of 2022.
4. She produced a copy of the charge sheet as annexure SJK-2. She deposed that on 14th August 2023, the Trial Court in Eldoret Chief Magistrate Criminal case no. 1780 of 2022 issued an order directing motor vehicle Reg. No. KAP 119G to be returned to police custody (DCI) Eldoret which order she annexed as SJK-3. Vide a formal Application dated 18th January 2023, the Trial Court issued an order directing as follows:
Photographs of the Motor vehicle KAP 119G to be taken and thereafter the said motor vehicle be released to the Applicant pending the hearing and determination of case in Eldoret Chief Magistrate Criminal case no. 1780 of 2022.She annexed a copy of the said order marked as annexure SJK-4.
5. She additionally stated that the suit motor vehicle is also a subject of proceedings in Eldoret Cmcc No. E524 of 2023, Mirez Investment Limited Vs Josephine Jepkorir Rotich in which there is an order of injunction restraining repossession of the said motor vehicle pending the hearing and determination of the civil suit. She annexed a copy of the order marled as SJK-5. Further, that the Applicant filed an Application in Eldoret Chief Magistrate Criminal case no. 1780 of 2022 dated 13th September 2024 seeking the following orders:
a. The Honourable Court be pleased to lift, discharge and/ or vacate the order issued on 14th August 2023
b. The Honourable Court be pleased to issue an order reinstating and extending order issued by this Court on 10th February 2023
6. The said Application was unopposed and a Ruling was delivered on 4th December 2024 disallowing the same and the Trial Court further directed the suit motor vehicle to be returned to the DCI Eldoret which order was annexed and marked as SJK-7. She stated that the impugned Ruling of 4th December 2024 presents conflicting orders over the suit motor vehicle from two courts of concurrent jurisdiction in Eldoret Chief Magistrate Criminal Case no. 1780 of 2022 and in Eldoret Cmcc No. E524 of 2023. Mirez Investment Limited Vs Josephine Jepkorir Rorich thereby causing undesired results of confusion and embarrassment to the Court and thus lowering its dignity and confidence in the eyes of the public.
7. She deponed, that the Applicant is willing to abide by any condition the Court may impose for grant of the orders sought and undertakes to produce the vehicle in Court during the hearing in Eldoret Chief Magistrate Criminal case no. 1780 of 2022 if this Application is granted.
8. The Deponent averred that there is no prejudice that the Respondents will suffer if the orders sought are issued given that photographs of the suit motor vehicle have already been taken in readiness for hearing of in Eldoret Chief Magistrate Criminal case no. 1780 of 2022 case. Further, that the orders issued by the Trial Court on 4th December 2024 are prejudicial to the Applicant as the suit motor vehicle is used in running day to day company businesses and is their only source for generating income. Additionally, that the suit motor vehicle is the one being used to generate income for repayment of loans owed by the Applicant to third parties.
9. That prior to the order of release issued in Eldoret Chief Magistrate Criminal Case no. 1780 of 2022 on 10th February 2023, the suit motor vehicle was at Naiberi police station for a period of six months from 22nd April 2022 to 10th February 2023 where it was vandalized, to the detriment of the Applicant where various parts were stolen and the paint faded due to harsh weather condition given the place it had been parked. She urged that there is likelihood that the Applicant will incur huge costs to repair the vehicle or it will have turned into a scrap at the time of conclusion of Eldoret Chief Magistrate Criminal case no. 1780 of 2022.
10. The Deponent averred that it cost the Applicant sum of Kshs 209,300/= to repair the suit motor vehicle after it was towed away from Naiberi Police station and due to the vandalisation of the suit motor vehicle while at the station, it could not move and had to be serviced and towed from police station thereby attracting towing charges in the sum of Kshs 25,000/=. She further stated that the 1st accused illegally took loans using the log book for the suit motor vehicle as security which loan is not being serviced by the 1st accused. She annexed the receipts for repair and the photographs showing the repairs and the state of the vehicle as annexures SJK8(a-e). She additionally annexed the receipt for the towing charges as annexures SJK 9(a-b).
11. She intimated to the Court that the purpose of this Application for revision is to invoke the powers of this Court under section 362 and 354 of the Criminal Procedure Court, Cap and urged the Court to allow the Application as prayed.
Replying Affidavit
12. The Application was opposed vide a Replying Affidavit sworn by the 1st accused person, Josephine Jepkorir Rotich, filed through the firm of Messrs Robert Ndubi & Co. Advocates. She deponed that the Application is an abuse of the Court process. Further, that the orders of 4th December 2024 are negative orders which the Applicant intends to stay using the review process as a front. She stated that the Applicants have illegally introduced new material in this Application which material was not disclosed in the subordinate Court. That the orders that were issued by the subordinate Court ordering the release of the motor vehicle on 10th February 2023, were issued in the absence of the accused persons and their advocate hence the Court did not have the benefit of their input in regard to the release of the motor vehicle which was in the custody of the DCI Eldoret. That this scenario that then led to the issuance of subsequent orders of the 14th August 2023
13. She stated that the subordinate Court issued express orders on 14th of August 2023 in regard to motor vehicle registration number KAP 119 G which is the subject of the criminal proceedings and this instant Application. That despite the orders issued on 14th August 2023, the Applicant and its directors have wilfully disobeyed the same for more than one year now and elected to file an Application staying the negative orders issued on the 4th December 2024 dismissing the Applicant’s Application made vide an Application dated 13th September 2024 seeking to stay of the order dated 14th August 2023 but the and ordered that the vehicle be returned to the DCI.
14. She stated that the issue of ownership of the subject motor vehicle is the subject of the criminal proceedings in the subordinate Court and the allegations in the Supporting Affidavit cannot therefore be an issue for determination through an Application for review. Further that the proceedings are not dependent on civil proceedings and in particular Eldoret CMCC No. E524 of 2023, which civil case was filed by the Applicant after the commencement of the criminal proceedings. She pointed out that she is yet to be served with the summons to enter appearance in the Civil Application and that the pleadings in the said civil suit a clear demonstration of mischief on the part of the Applicant
15. She stated that it would be in the interest of justice if the vehicle remains in a neutral place which is at the DCI Eldoret Police Station pending the hearing and determination of the criminal proceedings in Eldoret Criminal Case No. E l780 of 2022 since the main issue is the issue of ownership.
Applicants’ Supplementary Affidavit.
The Applicant filed a Supplementary Affidavit dated 05/04 in response to the Replying Affidavit. She reiterated the contents of the Supporting Affidavit and stated that in response to the contents of paragraph 6, the said orders for release of suit lorry were issued in presence of the prosecutor who had no objection whatsoever. Further, that in response to the contents of paragraph 8 and 9, she averred that her Application before the Trial Court dated 13/09/2024 was not for stay and more importantly, the Applicant has never disobeyed any Court orders.
16. In response to the contents of paragraph 17 and 24c she stated that both Ezekiel Komen and Komen Miriam Jebor were the initial directors of Mirez Investment limited and the allegation that Ezekiel Komen was the sole director amounts to falsehoods aimed to mislead this Court. Further, that Ezekiel and Miriam Komen sold her the suit lorry for Kshs 2,000,000/= and the same is yet to be transferred. She urged the Court to allow the Application.
Applicants’ Submissions
17. Learned Counsel for the Applicant submitted that the power of the Court in revision of orders of the Trial Court is provided for under section 362 of the Criminal Procedure Code. Further, he cited the provisions of Sections 364 (1) and 361 (1) (b) of the Criminal Procedure Code and Article 40 (1) of the Constitution of Kenya 2010. Counsel urged that these provisions mirror the provisions under; Article 17 of the Universal Declaration on Human Rights.
18. Counsel laid out the functions of the National Police Service as set down under section 24 of the National Police Service Act. Further, he cited Article 14 of the African Charter on Human and People's Rights on the right to property, urging that it is clear from these provisions that, a right to own property is a constitutional right and/or a human right.
19. Counsel submitted that the Applicant has produced motor vehicle search, register of beneficial owners of Mirez Investment limited, share agreement and motor vehicle green card showing that the Applicant is the owner of the subject lorry whereas the accused persons have not produced anything to show how they acquired the subject lorry.
20. Counsel submitted that the provisions of Articles 48, 50 and 159(2) (d) require that, matter under investigation and/or trial should be dealt with expeditiously. In particular, Article 17 (1) of the Constitution of Kenya states that, “Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair and Article 159 stated; justice should be administered without undue delay. Counsel urged that photographic evidence is sufficient in the case before the Trial Court and that the Applicant is willing to provide photographs of the subject lorry. He cited the case of R. v. John Ng’ang’a Mbugua [2014] eKLR in support of these submissions.
21. Counsel urged the Court to factor the unknown period that the case before the Trial Court will take, the loss of the income by the Applicant, vandalization of the subject lorry while at the police station, damage of the subject lorry due to harsh weather conditions, costs of repairs of the subject lorry at the end of the case. That it is in the interests of justice that the true value of the Motor vehicle is retained so that upon determination of the Criminal trial, the Applicant secures the value of the vehicle and avoid waste, disrepair and consequent depreciation.
22. Counsel submitted that the ideal way to secure the subject lorry is for the Court to order for a restriction against the Applicant so that the Applicant may use it to generate income to live on and pay off the loans owed to third parties. Further, that the Court could also issue an order restricting any disposal by sale or mortgage, if possible be maintained as may be ordered by the Court by a restriction placed with the National Transport and Safety Authority.
23. Counsel informed the Court that the suit motor vehicle is also a subject of proceedings in Eldoret CMCC E524 of 2023 in which there is an order of injunction restraining repossession of the said motor vehicle pending the hearing and determination of the civil suit. Following the order of the Trial Court on 04/12/2024, there are conflicting orders over the suit motor vehicle from two lower Courts of concurrent jurisdiction. He urged the Court to allow the Application.
1st & 2nd Respondents’ Submissions
24. Counsel submitted that the test and the guiding principles on revisionary jurisdiction arose in the case of Amir Hassan v Shea Baksh Singh (11LA 237). He stated that in light of the Application and in exercise of revisionary powers under Section 262 of the Criminal Procedure Code, there is no issue of Law or fact raised by the Applicant to warrant interference with the order directing that the subject Motor vehicle be in the police custody. Counsel urged the Court to examine the charges against the Applicant and reproduced the particulars of the offences. The charge was one count of Obtaining a motor vehicle registration by false pretence contrary to section 320 of the Penal Code.
25. Counsel urged that the Respondents who are the accused persons in Eldoret Criminal Case E l780 OF 2022 pleaded not guilty to the charges and the matter was fixed for hearing where the Applicant was called as one of the witnesses but was stood down due to the defiance of the Court orders demanding the vehicle that was released to them in the absence of the Respondents be returned to the police station. The Applicant then opted to file an Application for the vehicle to be released to her which Application was dismissed hence the filing of the instant criminal revision Application.
26. Counsel submitted that on 14/08/2023 the Applicant was directed to comply with the directions issued ordering the return of the motor vehicle to Eldoret DCI. Further, that the Application dated 13/09/2024 was dismissed on merit. He pointed out that it is instructive to note that the issues of ownership of the motor vehicle is highly contested and the same is registered in the name of the 1st Respondent who is the 1st accused person. He stated that it is imperative that the Respondents are presumed innocent until proven guilty hence releasing the Motor vehicle to the Applicant who is the complainant will serve as an injustice to the Respondents.
27. Counsel cited section 177 (a) of the Criminal Procedure Code and submitted that the Court has been referred to an impugned order that was issued in Eldoret CMCC Civil Case No. E524 OF 2023 which order was obtained irregularly and has since been set aside. He further cited 364 of the Criminal Procedure Code, and Section 107 of the Evidence Act, urging that the Applicant must prove that indeed the subject motor vehicle rightfully belongs to them and as it is the accused persons still remain the rightful owners.
28. Counsel submitted that in the absence of a judgement in Eldoret CM Criminal E1780 of 2022, it will be an injustice to the accused persons if the only subject of the criminal charges is released to the Applicant who is the complainant. He cited Section 207(3) and 208 of the CPC and submitted that the accused persons, having denied the charges the complainant was expected to present its case so as to identify exhibits prior to having them adduced in evidence. Even after being produced, whether or not they could be released to the owner would depend on evidence tendered. According to section 121 of the CPC when an item is seized and brought before Court, it may be detained until the conclusion of the case.
29. Counsel cited Article 165 (6) of the constitution of Kenya 2010 and Section 362 of the Criminal Procedure Code), urging that the duty of this Court is to interrogate the record of the lower Court so as to determine the legality, correctness and propriety of the alleged impugned Ruling. He cited the case of Elijah Nyakebondo vs. Republic (2017) eKLR in support of this submission. Additionally, he stated that there is no dispute that the 1st Respondent is currently the registered owner of the subject motor vehicle registration number. The prosecution is yet to prove a prima facie case to enable the issue to be determined and the motor vehicle to be released. He cited the case Woolmington v DPP [1935] EA 462 in this regard.
30. Counsel cited Section 8 of the Traffic Act and urged that the basis for the claim of ownership of the subject motor vehicle by the Applicant is by virtue of transfer of the shares and change of directorship of the Applicant, where the old directors including the father to the 2nd Respondent moved from being a director well after he had handed over the motor vehicle to the 1st Respondent.
31. Counsel urged that a clear perusal of the record and or proceedings in Criminal Eldoret Criminal Caser E1780 of 2022 reveals that it’s the Respondents who continue to incur losses since the subject vehicle was being used to service loans taken by the 1st Respondent who is ideally entitled to the custody of the vehicle as opposed to the complainant.
32. Counsel submitted that this Court is clothed with jurisdiction to guard against any action or inaction whose effect may render the proceedings nugatory. Further, that the Constitutional right to a fair hearing under Article 50 (2) (e) for one to have the trial begin and concluded without unreasonable delay would be lost if interlocutory Applications were founded on a partial or speculative presumption of the facts as it is happening in the instant Application. He urged the Court to dismiss the Application.
Prosecution’s Submissions
33. The brief oral submission by the Prosecution was that the matter the subject of this Application was purely civil in nature and did not therefore call for their participation
Analysis & Determination
34. Having addressed my mind to the pleadings as well as the submissions, it is my considered opinion that he issues that arise for determination are;
a) Whether the court should Review or set aside the order dismissing the application dated 13/09/2024
b) Whether the court should issue an order to release the Applicants’ Vehicle.
c) Whether the court should issue directions on the hearing of the trial in Eldoret CMCCRC no. E1780 of 2022
35. The Supervisory Jurisdiction of this court is set out in Article 165(6) and (7) of the Constitution as follows;
“(6) 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.
(7) for the purpose of clause (6), the High Court may call for the record of any proceedings before any court or person, body of authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”
36. Further, Section 362 of the Criminal Procedure Code provides as follows:
“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.”
37. In Joseph Nduvi Mbuvi vs Republic [2019] eKLR G.V. Odunga J (as he then was) in his interpretation of the provisions of Section 362 of the Criminal Procedure Code and to which I associate myself with fully, opined as follows: -
“A strict reading of section 362 of the Criminal Procedure Code, however, does not expressly limit the High Court’s revisionary jurisdiction to final adjudication of the proceedings. The section talks of “any criminal proceedings”. “Any criminal proceedings” in my view includes interlocutory proceedings. Suppose a subordinate court would be minded to make an absurd decision of commencing a criminal trial by directing the accused to give evidence before the prosecution, I do not see why the High Court cannot call the proceedings in question to satisfy itself as to the correctness, regularity or legality of such order. In my considered view, the object of the revisional jurisdiction of the High Court is to enable the High Court, in appropriate cases, whether during the pendency of the proceedings in the subordinate court or at the conclusion of the proceedings to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still on-going, should be proceeded with. In other words, the High Court’s revisionary jurisdiction includes ensuring that where the proceeding in the lower court has been legally derailed, necessary directions are given to bring the same back on track so that the trial proceeds towards its intended destination without hitches. Not only is the jurisdiction exercisable where the subordinate court has made a finding, sentence or order but goes on to state that it is also exercisable to determine the regularity of any proceedings of any such subordinate court as well.”
38. The above being the Constitutional and Statutory provisions as well as Case Law that the court is guide by in the court in the exercise of its revisionary powers, In the instant case, even without the court issuing orders to call the Trial Court file so that it is able to determine whether there was any impropriety or irregularity in the proceedings and the orders issued by the trial court, having addressed my mind to the issues raised in the pleadings by the parties as well as the submissions filed on their behalf, I am of the considered finding that it is clearly apparent that prima facie, the main issue in contention before the Trial Court is the issue of the ownership of the motor vehicle the subject matter of the impugned Ruling and consequently this Application. I also note that it is common ground that the said Ruling was delivered in the herein cited Criminal Case that is ongoing before the Hon Magistrate wherein the Applicant herein is the Complainant and the Respondents are the Accused Persons.
39. This being the case then, I am of the very well-considered opinion that until the issue of who the rightful owner of the motor vehicle registration number KAP 119G is, it is necessary that the said motor vehicle be in the custody of a neutral party and the same being the subject of a Criminal Case, then the DCI would be the right party to have the custody of the said motor vehicle pending the hearing and determination of the case.
40. Because it is also common ground that the Hon Magistrate in the impugned Ruling made an order to a similar effect, I do not find any merit in the Application seeking that the said order be stayed. It follows therefore that the Applicants Application seeking for the court to call for the record in Eldoret CMCC No. E1780 of 2022 and review, vacate and/or set aside the Ruling Delivered on 14th December 2024 and further seeking that the court issues an order directing the DCI to release to the Applicants the said motor vehicle lacks merit
41. Lastly on the prayer seeking that the court directs that the said Eldoret CMCC No. E1780 of 2022 be heard by any other Magistrate other than the Hon D. Mikoyan, from the record of the pleadings before this court, nothing at all has been advanced to warrant the issuance of the order sought. In light of my conclusions reached on the issues raised based on my analysis of the evidence as proffered in the pleadings, the upshot it is my finding that the Applicant’s Application lacks merit and the same is accordingly dismissed in its entirety with costs to the Respondents.
Read Dated and Signed at ELDORET on 4th June 2025
1) Spent
2) Spent
3) This Honourable Court be pleased to call for the Court record in Eldoret Chief Magistrate Criminal Case No. E1780 of 2022 and review, vacate and/ or set aside the order dismissing the Applicant’s Application dated 13th September 2024 and order directing that motor vehicle registration No. KAP 119G be returned to the DCI Eldoret police station.
4) The Honourable Court be pleased to issue an order directing DCI Eldoret police station to release the Applicant’s vehicle registration No. KAP 119G to the Applicant.
5) The Honourable Court be pleased to order that the trial of the 1st and 2nd Respondent Eldoret Chief Magistrate Criminal Case No. El 780 of 2022.be heard by any other magistrate other than the trial magistrate Hon.D. Mikoyan.
2. The Application is expressed to be brought under Sections 362, 364 and 177 of the Criminal Procedure Code, and under Articles 40 and 165(6) of the Constitution. The Application is also premised on the contents of the Supporting Affidavit sworn by Sheila Jelagat Kipkulei, the Applicants’ Director.
3. In her affidavit, the Deponent stated that Applicant is the complainant in Eldoret Chief Magistrate Criminal case No. 1780 of 2022 whereas the 1st and 2nd Respondent therein are the accused persons. She deposed that she is a beneficial owner of the suit motor vehicle registration no. KAP 119G and annexed the sale agreement for the same as SJK-19a-d). Further, that the 1st Respondent, without any colour or right attempted to unlawfully repossess the suit motor vehicle with the ulterior motive to have the suit motor vehicle disposed of having caused the same to be illegally transferred into her names prompting filing of charge against the accused persons vide Eldoret chief Magistrate Criminal Case No. 1780 of 2022.
4. She produced a copy of the charge sheet as annexure SJK-2. She deposed that on 14th August 2023, the Trial Court in Eldoret Chief Magistrate Criminal case no. 1780 of 2022 issued an order directing motor vehicle Reg. No. KAP 119G to be returned to police custody (DCI) Eldoret which order she annexed as SJK-3. Vide a formal Application dated 18th January 2023, the Trial Court issued an order directing as follows:
Photographs of the Motor vehicle KAP 119G to be taken and thereafter the said motor vehicle be released to the Applicant pending the hearing and determination of case in Eldoret Chief Magistrate Criminal case no. 1780 of 2022.She annexed a copy of the said order marked as annexure SJK-4.
5. She additionally stated that the suit motor vehicle is also a subject of proceedings in Eldoret Cmcc No. E524 of 2023, Mirez Investment Limited Vs Josephine Jepkorir Rotich in which there is an order of injunction restraining repossession of the said motor vehicle pending the hearing and determination of the civil suit. She annexed a copy of the order marled as SJK-5. Further, that the Applicant filed an Application in Eldoret Chief Magistrate Criminal case no. 1780 of 2022 dated 13th September 2024 seeking the following orders:
a. The Honourable Court be pleased to lift, discharge and/ or vacate the order issued on 14th August 2023
b. The Honourable Court be pleased to issue an order reinstating and extending order issued by this Court on 10th February 2023
6. The said Application was unopposed and a Ruling was delivered on 4th December 2024 disallowing the same and the Trial Court further directed the suit motor vehicle to be returned to the DCI Eldoret which order was annexed and marked as SJK-7. She stated that the impugned Ruling of 4th December 2024 presents conflicting orders over the suit motor vehicle from two courts of concurrent jurisdiction in Eldoret Chief Magistrate Criminal Case no. 1780 of 2022 and in Eldoret Cmcc No. E524 of 2023. Mirez Investment Limited Vs Josephine Jepkorir Rorich thereby causing undesired results of confusion and embarrassment to the Court and thus lowering its dignity and confidence in the eyes of the public.
7. She deponed, that the Applicant is willing to abide by any condition the Court may impose for grant of the orders sought and undertakes to produce the vehicle in Court during the hearing in Eldoret Chief Magistrate Criminal case no. 1780 of 2022 if this Application is granted.
8. The Deponent averred that there is no prejudice that the Respondents will suffer if the orders sought are issued given that photographs of the suit motor vehicle have already been taken in readiness for hearing of in Eldoret Chief Magistrate Criminal case no. 1780 of 2022 case. Further, that the orders issued by the Trial Court on 4th December 2024 are prejudicial to the Applicant as the suit motor vehicle is used in running day to day company businesses and is their only source for generating income. Additionally, that the suit motor vehicle is the one being used to generate income for repayment of loans owed by the Applicant to third parties.
9. That prior to the order of release issued in Eldoret Chief Magistrate Criminal Case no. 1780 of 2022 on 10th February 2023, the suit motor vehicle was at Naiberi police station for a period of six months from 22nd April 2022 to 10th February 2023 where it was vandalized, to the detriment of the Applicant where various parts were stolen and the paint faded due to harsh weather condition given the place it had been parked. She urged that there is likelihood that the Applicant will incur huge costs to repair the vehicle or it will have turned into a scrap at the time of conclusion of Eldoret Chief Magistrate Criminal case no. 1780 of 2022.
10. The Deponent averred that it cost the Applicant sum of Kshs 209,300/= to repair the suit motor vehicle after it was towed away from Naiberi Police station and due to the vandalisation of the suit motor vehicle while at the station, it could not move and had to be serviced and towed from police station thereby attracting towing charges in the sum of Kshs 25,000/=. She further stated that the 1st accused illegally took loans using the log book for the suit motor vehicle as security which loan is not being serviced by the 1st accused. She annexed the receipts for repair and the photographs showing the repairs and the state of the vehicle as annexures SJK8(a-e). She additionally annexed the receipt for the towing charges as annexures SJK 9(a-b).
11. She intimated to the Court that the purpose of this Application for revision is to invoke the powers of this Court under section 362 and 354 of the Criminal Procedure Court, Cap and urged the Court to allow the Application as prayed.
Replying Affidavit
12. The Application was opposed vide a Replying Affidavit sworn by the 1st accused person, Josephine Jepkorir Rotich, filed through the firm of Messrs Robert Ndubi & Co. Advocates. She deponed that the Application is an abuse of the Court process. Further, that the orders of 4th December 2024 are negative orders which the Applicant intends to stay using the review process as a front. She stated that the Applicants have illegally introduced new material in this Application which material was not disclosed in the subordinate Court. That the orders that were issued by the subordinate Court ordering the release of the motor vehicle on 10th February 2023, were issued in the absence of the accused persons and their advocate hence the Court did not have the benefit of their input in regard to the release of the motor vehicle which was in the custody of the DCI Eldoret. That this scenario that then led to the issuance of subsequent orders of the 14th August 2023
13. She stated that the subordinate Court issued express orders on 14th of August 2023 in regard to motor vehicle registration number KAP 119 G which is the subject of the criminal proceedings and this instant Application. That despite the orders issued on 14th August 2023, the Applicant and its directors have wilfully disobeyed the same for more than one year now and elected to file an Application staying the negative orders issued on the 4th December 2024 dismissing the Applicant’s Application made vide an Application dated 13th September 2024 seeking to stay of the order dated 14th August 2023 but the and ordered that the vehicle be returned to the DCI.
14. She stated that the issue of ownership of the subject motor vehicle is the subject of the criminal proceedings in the subordinate Court and the allegations in the Supporting Affidavit cannot therefore be an issue for determination through an Application for review. Further that the proceedings are not dependent on civil proceedings and in particular Eldoret CMCC No. E524 of 2023, which civil case was filed by the Applicant after the commencement of the criminal proceedings. She pointed out that she is yet to be served with the summons to enter appearance in the Civil Application and that the pleadings in the said civil suit a clear demonstration of mischief on the part of the Applicant
15. She stated that it would be in the interest of justice if the vehicle remains in a neutral place which is at the DCI Eldoret Police Station pending the hearing and determination of the criminal proceedings in Eldoret Criminal Case No. E l780 of 2022 since the main issue is the issue of ownership.
Applicants’ Supplementary Affidavit.
The Applicant filed a Supplementary Affidavit dated 05/04 in response to the Replying Affidavit. She reiterated the contents of the Supporting Affidavit and stated that in response to the contents of paragraph 6, the said orders for release of suit lorry were issued in presence of the prosecutor who had no objection whatsoever. Further, that in response to the contents of paragraph 8 and 9, she averred that her Application before the Trial Court dated 13/09/2024 was not for stay and more importantly, the Applicant has never disobeyed any Court orders.
16. In response to the contents of paragraph 17 and 24c she stated that both Ezekiel Komen and Komen Miriam Jebor were the initial directors of Mirez Investment limited and the allegation that Ezekiel Komen was the sole director amounts to falsehoods aimed to mislead this Court. Further, that Ezekiel and Miriam Komen sold her the suit lorry for Kshs 2,000,000/= and the same is yet to be transferred. She urged the Court to allow the Application.
Applicants’ Submissions
17. Learned Counsel for the Applicant submitted that the power of the Court in revision of orders of the Trial Court is provided for under section 362 of the Criminal Procedure Code. Further, he cited the provisions of Sections 364 (1) and 361 (1) (b) of the Criminal Procedure Code and Article 40 (1) of the Constitution of Kenya 2010. Counsel urged that these provisions mirror the provisions under; Article 17 of the Universal Declaration on Human Rights.
18. Counsel laid out the functions of the National Police Service as set down under section 24 of the National Police Service Act. Further, he cited Article 14 of the African Charter on Human and People's Rights on the right to property, urging that it is clear from these provisions that, a right to own property is a constitutional right and/or a human right.
19. Counsel submitted that the Applicant has produced motor vehicle search, register of beneficial owners of Mirez Investment limited, share agreement and motor vehicle green card showing that the Applicant is the owner of the subject lorry whereas the accused persons have not produced anything to show how they acquired the subject lorry.
20. Counsel submitted that the provisions of Articles 48, 50 and 159(2) (d) require that, matter under investigation and/or trial should be dealt with expeditiously. In particular, Article 17 (1) of the Constitution of Kenya states that, “Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair and Article 159 stated; justice should be administered without undue delay. Counsel urged that photographic evidence is sufficient in the case before the Trial Court and that the Applicant is willing to provide photographs of the subject lorry. He cited the case of R. v. John Ng’ang’a Mbugua [2014] eKLR in support of these submissions.
21. Counsel urged the Court to factor the unknown period that the case before the Trial Court will take, the loss of the income by the Applicant, vandalization of the subject lorry while at the police station, damage of the subject lorry due to harsh weather conditions, costs of repairs of the subject lorry at the end of the case. That it is in the interests of justice that the true value of the Motor vehicle is retained so that upon determination of the Criminal trial, the Applicant secures the value of the vehicle and avoid waste, disrepair and consequent depreciation.
22. Counsel submitted that the ideal way to secure the subject lorry is for the Court to order for a restriction against the Applicant so that the Applicant may use it to generate income to live on and pay off the loans owed to third parties. Further, that the Court could also issue an order restricting any disposal by sale or mortgage, if possible be maintained as may be ordered by the Court by a restriction placed with the National Transport and Safety Authority.
23. Counsel informed the Court that the suit motor vehicle is also a subject of proceedings in Eldoret CMCC E524 of 2023 in which there is an order of injunction restraining repossession of the said motor vehicle pending the hearing and determination of the civil suit. Following the order of the Trial Court on 04/12/2024, there are conflicting orders over the suit motor vehicle from two lower Courts of concurrent jurisdiction. He urged the Court to allow the Application.
1st & 2nd Respondents’ Submissions
24. Counsel submitted that the test and the guiding principles on revisionary jurisdiction arose in the case of Amir Hassan v Shea Baksh Singh (11LA 237). He stated that in light of the Application and in exercise of revisionary powers under Section 262 of the Criminal Procedure Code, there is no issue of Law or fact raised by the Applicant to warrant interference with the order directing that the subject Motor vehicle be in the police custody. Counsel urged the Court to examine the charges against the Applicant and reproduced the particulars of the offences. The charge was one count of Obtaining a motor vehicle registration by false pretence contrary to section 320 of the Penal Code.
25. Counsel urged that the Respondents who are the accused persons in Eldoret Criminal Case E l780 OF 2022 pleaded not guilty to the charges and the matter was fixed for hearing where the Applicant was called as one of the witnesses but was stood down due to the defiance of the Court orders demanding the vehicle that was released to them in the absence of the Respondents be returned to the police station. The Applicant then opted to file an Application for the vehicle to be released to her which Application was dismissed hence the filing of the instant criminal revision Application.
26. Counsel submitted that on 14/08/2023 the Applicant was directed to comply with the directions issued ordering the return of the motor vehicle to Eldoret DCI. Further, that the Application dated 13/09/2024 was dismissed on merit. He pointed out that it is instructive to note that the issues of ownership of the motor vehicle is highly contested and the same is registered in the name of the 1st Respondent who is the 1st accused person. He stated that it is imperative that the Respondents are presumed innocent until proven guilty hence releasing the Motor vehicle to the Applicant who is the complainant will serve as an injustice to the Respondents.
27. Counsel cited section 177 (a) of the Criminal Procedure Code and submitted that the Court has been referred to an impugned order that was issued in Eldoret CMCC Civil Case No. E524 OF 2023 which order was obtained irregularly and has since been set aside. He further cited 364 of the Criminal Procedure Code, and Section 107 of the Evidence Act, urging that the Applicant must prove that indeed the subject motor vehicle rightfully belongs to them and as it is the accused persons still remain the rightful owners.
28. Counsel submitted that in the absence of a judgement in Eldoret CM Criminal E1780 of 2022, it will be an injustice to the accused persons if the only subject of the criminal charges is released to the Applicant who is the complainant. He cited Section 207(3) and 208 of the CPC and submitted that the accused persons, having denied the charges the complainant was expected to present its case so as to identify exhibits prior to having them adduced in evidence. Even after being produced, whether or not they could be released to the owner would depend on evidence tendered. According to section 121 of the CPC when an item is seized and brought before Court, it may be detained until the conclusion of the case.
29. Counsel cited Article 165 (6) of the constitution of Kenya 2010 and Section 362 of the Criminal Procedure Code), urging that the duty of this Court is to interrogate the record of the lower Court so as to determine the legality, correctness and propriety of the alleged impugned Ruling. He cited the case of Elijah Nyakebondo vs. Republic (2017) eKLR in support of this submission. Additionally, he stated that there is no dispute that the 1st Respondent is currently the registered owner of the subject motor vehicle registration number. The prosecution is yet to prove a prima facie case to enable the issue to be determined and the motor vehicle to be released. He cited the case Woolmington v DPP [1935] EA 462 in this regard.
30. Counsel cited Section 8 of the Traffic Act and urged that the basis for the claim of ownership of the subject motor vehicle by the Applicant is by virtue of transfer of the shares and change of directorship of the Applicant, where the old directors including the father to the 2nd Respondent moved from being a director well after he had handed over the motor vehicle to the 1st Respondent.
31. Counsel urged that a clear perusal of the record and or proceedings in Criminal Eldoret Criminal Caser E1780 of 2022 reveals that it’s the Respondents who continue to incur losses since the subject vehicle was being used to service loans taken by the 1st Respondent who is ideally entitled to the custody of the vehicle as opposed to the complainant.
32. Counsel submitted that this Court is clothed with jurisdiction to guard against any action or inaction whose effect may render the proceedings nugatory. Further, that the Constitutional right to a fair hearing under Article 50 (2) (e) for one to have the trial begin and concluded without unreasonable delay would be lost if interlocutory Applications were founded on a partial or speculative presumption of the facts as it is happening in the instant Application. He urged the Court to dismiss the Application.
Prosecution’s Submissions
33. The brief oral submission by the Prosecution was that the matter the subject of this Application was purely civil in nature and did not therefore call for their participation
Analysis & Determination
34. Having addressed my mind to the pleadings as well as the submissions, it is my considered opinion that he issues that arise for determination are;
a) Whether the court should Review or set aside the order dismissing the application dated 13/09/2024
b) Whether the court should issue an order to release the Applicants’ Vehicle.
c) Whether the court should issue directions on the hearing of the trial in Eldoret CMCCRC no. E1780 of 2022
35. The Supervisory Jurisdiction of this court is set out in Article 165(6) and (7) of the Constitution as follows;
“(6) 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.
(7) for the purpose of clause (6), the High Court may call for the record of any proceedings before any court or person, body of authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”
36. Further, Section 362 of the Criminal Procedure Code provides as follows:
“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.”
37. In Joseph Nduvi Mbuvi vs Republic [2019] eKLR G.V. Odunga J (as he then was) in his interpretation of the provisions of Section 362 of the Criminal Procedure Code and to which I associate myself with fully, opined as follows: -
“A strict reading of section 362 of the Criminal Procedure Code, however, does not expressly limit the High Court’s revisionary jurisdiction to final adjudication of the proceedings. The section talks of “any criminal proceedings”. “Any criminal proceedings” in my view includes interlocutory proceedings. Suppose a subordinate court would be minded to make an absurd decision of commencing a criminal trial by directing the accused to give evidence before the prosecution, I do not see why the High Court cannot call the proceedings in question to satisfy itself as to the correctness, regularity or legality of such order. In my considered view, the object of the revisional jurisdiction of the High Court is to enable the High Court, in appropriate cases, whether during the pendency of the proceedings in the subordinate court or at the conclusion of the proceedings to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still on-going, should be proceeded with. In other words, the High Court’s revisionary jurisdiction includes ensuring that where the proceeding in the lower court has been legally derailed, necessary directions are given to bring the same back on track so that the trial proceeds towards its intended destination without hitches. Not only is the jurisdiction exercisable where the subordinate court has made a finding, sentence or order but goes on to state that it is also exercisable to determine the regularity of any proceedings of any such subordinate court as well.”
38. The above being the Constitutional and Statutory provisions as well as Case Law that the court is guide by in the court in the exercise of its revisionary powers, In the instant case, even without the court issuing orders to call the Trial Court file so that it is able to determine whether there was any impropriety or irregularity in the proceedings and the orders issued by the trial court, having addressed my mind to the issues raised in the pleadings by the parties as well as the submissions filed on their behalf, I am of the considered finding that it is clearly apparent that prima facie, the main issue in contention before the Trial Court is the issue of the ownership of the motor vehicle the subject matter of the impugned Ruling and consequently this Application. I also note that it is common ground that the said Ruling was delivered in the herein cited Criminal Case that is ongoing before the Hon Magistrate wherein the Applicant herein is the Complainant and the Respondents are the Accused Persons.
39. This being the case then, I am of the very well-considered opinion that until the issue of who the rightful owner of the motor vehicle registration number KAP 119G is, it is necessary that the said motor vehicle be in the custody of a neutral party and the same being the subject of a Criminal Case, then the DCI would be the right party to have the custody of the said motor vehicle pending the hearing and determination of the case.
40. Because it is also common ground that the Hon Magistrate in the impugned Ruling made an order to a similar effect, I do not find any merit in the Application seeking that the said order be stayed. It follows therefore that the Applicants Application seeking for the court to call for the record in Eldoret CMCC No. E1780 of 2022 and review, vacate and/or set aside the Ruling Delivered on 14th December 2024 and further seeking that the court issues an order directing the DCI to release to the Applicants the said motor vehicle lacks merit
41. Lastly on the prayer seeking that the court directs that the said Eldoret CMCC No. E1780 of 2022 be heard by any other Magistrate other than the Hon D. Mikoyan, from the record of the pleadings before this court, nothing at all has been advanced to warrant the issuance of the order sought. In light of my conclusions reached on the issues raised based on my analysis of the evidence as proffered in the pleadings, the upshot it is my finding that the Applicant’s Application lacks merit and the same is accordingly dismissed in its entirety with costs to the Respondents.
Read Dated and Signed at ELDORET on 4th June 2025