The High Court has ordered the release of a vehicle belonging to security firm G4S Kenya Ltd, which had been forfeited to the State after its driver was arrested ferrying counterfeit goods.
While ordering the release of the van, the court faulted the trial magistrate for basing the forfeiture order on a section of the law that does not exist.
The trial court based its decision on Sections 197 and 201(1) of the Excise Duty Act 2015, but the High Court said such a section does not exist.
The court further noted that the security and courier firm was not a party to the criminal case and there was no suggestion or implication that it was an accessory to the crime.
According to the High Court, the motor vehicle was being driven by an employee who has since been charged and convicted.
“Further forfeiture is not automatic upon conviction and must be exercised judiciously, especially where third-party rights are implicated,” said the court.
Evidence tabled in court showed that the motor vehicle was intercepted by the police in Isiolo while being driven by an employee of G4S Kenya.
The company contended that while the driver was charged and convicted, the firm was never charged, implicated, or investigated. And despite this, the trial magistrate dismissed their application for the release of the vehicle and ordered its forfeiture to the State. The security firm stated that the carriage of the goods was without its knowledge or consent.
The company argued that the ruling relied on Sections 197 and 201(1) of the Excise Duty Act 2015, provisions which do not exist in the said statute, rendering the order a patent illegality.
The State opposed the application and argued that Section 46 of the Excise Duty Act allows for the continuation of penalties even in the new enactment and that the trial court has the right, upon conviction, to order the subject matter forfeited to the State.
The State submitted that the application was time-barred as the firm was aware of the proceedings and should have made their case at the trial stage.
The High Court agreed with the security firm that the foundation of the forfeiture order was legally untenable.
“It is a cardinal principle of law that judicial orders must be anchored on existing and applicable statutory provisions. An order founded on non-existent provisions is not merely erroneous—it is a nullity,” said the court.
The court noted that the firm produced a logbook showing that it was the registered owner of the subject motor vehicle, and there was no evidence that the company was an accessory to their employee’s crime.
“The Court reiterates that forfeiture, particularly involving third-party property, must be exercised strictly within the law and with due regard to constitutional safeguards. Courts must guard against punitive excesses that undermine property rights and due process,” said the court.
