A crate full of beer bottles [Photo: Shuttertstock]

The High Court has saved bar owners found selling alcoholic and soft drinks during curfew hours from forfeiting exhibits to the State for destruction. This is because the drinks seized by the police during raids are not classified as properties obtained from the proceeds of a crime or an offence under the Public Health Act.

"To address this concern Parliament provided an avenue under Section 389A of the Code, which permits any person with an interest in the property to apply for a restoration order,” Justice Reuben Nyakundi said. The section provides that any goods or things may be (but are not obliged to be) forfeited by a court. However, the law does not provide the procedure by which forfeiture is to be effected.

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If it appears to the court that the goods or property should be forfeited, the owner has to be notified and given a chance to argue his case. Where the owner of the goods or things is not known or cannot be found, the notice shall be advertised in a suitable newspaper.

If the court finds that the owner of the goods was innocent of the offence and had even exercised all reasonable diligence like asking the employee not to operate during curfew hours, the court cannot order their forfeiture. “Keeping these principles in mind, I am unable to agree that the property seized can be classified as property from the proceeds of a crime or an offence under Section 164 of the Public Health Act,” the judge said.

The Act states that any person who is guilty of an offence under it or any of its provisions will be subjected to a fine not exceeding Sh50,000, or be imprisoned for a term not exceeding six months, or to both. A further fine not exceeding Sh1,000 can be applied for each day, if the offender was caught several times.

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The judge said this in a case in which Jones Nzioka and Titus Kareithi challenged the decision by Malindi Chief Magistrate Ivy Wasike’s to have drinks seized from bars they were arrested in to the State for destruction. The two had been arrested on March 31 at 19.30 hrs, selling assorted drinks at Connection Bar and Amigos in Malindi Sub-county, in contravention of the Ministry of Health guidelines on the prevention and control of Civid-19.

They pleaded guilty before the trial magistrate and were duly convicted and sentenced to a fine of Sh20,000 each and in default one-month imprisonment. The magistrate then ordered that they forfeit the inventory exhibits to the State for destruction under the supervision of the court. 

Aggrieved by the order on forfeiture, they moved to the High Court to challenge the decision on the grounds that the magistrate erred by issuing the order without giving them an opportunity to be heard.

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They also claimed the order amounted to double punishment, which was not only prejudicial, but also disproportionate to the nature of crime. They further added that the effect of forfeiture in such a case is an infringement of their economic rights and implied right to property, as provided for in the constitution.