BY WAHOME THUKU

There are strong arguments that all victims of crimes, especially those involving property, should always be compensated with perpetrators’ resources, whenever those responsible are convicted.

In international crimes, restitution is highly considered to ensure that victims of heinous crimes are paid back in kind, from resources recovered from convicted criminals.

But even under international criminal law, restitution only involves property directly acquired as benefit from crimes under which one has been convicted.

Sometime in 2009, a man was charged in Nairobi with five counts of fraudulently obtaining Sh1.7 million from five people pretending he was in a position to buy them vehicles.

 Car dealers

The victims include Francis Mukundi (Sh520,000), Felix Mwathi (Sh170,000),  Charles Ameyo (Sh340,000), Henry Mwangangi (Sh370,000) and Roy Muganda (Sh320,000).

After prosecution had tendered evidence, the man was put on his defence. He gave sworn evidence and admitted having received the monies but added that he had remitted it to car dealer Prime Motors and bought a vehicle.

On December 31, 2010, the magistrate court convicted and sentenced him to pay a fine of Sh550,000 and in default to serve five-and-a-half years in jail. In the judgement, the magistrate acknowledged that the accused had fraudulently obtained the money.

Forfeited to State

The court also accepted the evidence that he had spent Sh1.3 million of the money to buy a motor vehicle for his own use.

After sentencing the man, the magistrate ordered that the motor vehicle be forfeited to State. That did not go well with the five complainants who wanted the vehicle released to them.

On March 4, 2011, they wrote a letter to High Court asking it to use its supervisory powers to determine the propriety of the magistrate’s order. They invoked Article 165(6) of the Constitution, which provides that the High Court has supervisory jurisdiction over subordinate courts...

Article 165(7) states that High Court may call for record of any proceedings before any subordinate court and may make any order or give any direction it considers appropriate to ensure fair administration of justice.

The applicants also invoked Section 362 of the Criminal Procedure Code, which provides that 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.

High Court Judge Lydia Achode heard the matter.

Through lawyer Leonard Opundo, they asked the High Court to order that they be allowed to sell the vehicle and share the proceeds in the ratio in which they had been defrauded.

State Counsel George Muriithi opposed the application arguing that the redress being sought by the four men was civil in nature and the court had no legal authority to grant it.

Lady Justice Achode noted that the accused had used money from the five applicants to execute a sale agreement with Prime Motors from whom he bought the vehicle.

The applicants said the accused had paid the fine but never bothered to refund them the money he had fraudulently obtained from them.

They noted the vehicle had been kept at Supreme Court premises since the case was concluded and had inevitably deteriorated in value.

Control of person

The judge used section 177(a) of the Criminal Procedure Code, which provides that where upon the apprehension of a person charged with an offence, any property is taken from him, the court before which he is charged may order that the property or a part thereof be restored to the person who appears to the court to be entitled thereto and, if he be the person charged, that it be restored either to him or to such other person as he may direct.

Section 178(7) provides the term property to include, in the case of the property regarding which the offence appears to have been committed, not only property, which was originally in the possession or under the control of a person but also the property into which or for which it may have been converted or exchanged and anything acquired by the conversion or exchange whether immediately or otherwise.

Monies obtained

In this case, the money taken from the five complaints had been converted into a motor vehicle and the vehicle had been bought by the man for his own use. The question as to whom it actually belonged to under this law was not contestable.

“It’s therefore ordered that the orders of forfeiture of the motor vehicle issued on December 31, 2010 be and are hereby revised,” the judge ruled last week. “The said motor vehicle be and is hereby released to the five applicants to sell and distribute the proceeds thereof equitably among themselves in the rations of the sums of monies obtained from each by the accused person.”

The debatable question is whether the law should not enable the five applicants to also be awarded the Sh550,000 collected by the State as fine from the conman.