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Court of AppealDismissedCriminal Appeal E057 of 2022

Abdi Aziz Mohamed Warsame v Director of Public Prosecutions & another

Court of Appeal
20 December 2024
4,524 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that customs forfeiture of smuggled goods is not automatic, but claimants must prove ownership through the proper statutory channels.

What this practically means

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Executive summary

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The appellant, Abdi Aziz Mohamed Warsame, appealed against the dismissal by S. M. Githinji, J. of his petition challenging the forfeiture of Supermatch cigarettes worth Kshs. 34,950,000 to the Kenya Revenue Authority following the conviction of Elisha Korir for conveying un-customed goods. He sought a declaration that sections 215(1) and 217(1) of the East Africa Community Customs Management Act (EACCMA) violated Articles 27, 40 and 50 of the Constitution. The Court of Appeal (Warsame, Achode and Korir, JJA) framed three issues: whether section 215(1) EACCMA provides for mandatory forfeiture; whether sections 215(1) and 217(1) are unconstitutional; and whether the appellant is entitled to the goods. Applying its narcotics jurisprudence on 'shall' and 'liable', the Court held that section 199(iii) EACCMA leaves forfeiture discretionary and is not mandatory; section 215(1) merely deems goods condemned upon conviction without further proceedings, but an interested person may apply for release, whereupon the trial court must decide the application, resorting to section 389A of the Criminal Procedure Code as the fallback procedure. The Court found the impugned provisions constitutional, holding they allow assertion of rights and pass the rationality, proportionality and necessity tests; the property claim failed because Article 40(6) excludes unlawfully acquired property and the appellant adduced no evidence of lawful acquisition. The Court declined to determine ownership, the appellant having tendered no documents before the High Court and pursued neither statutory avenue. The appeal was dismissed with each party bearing their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether section 215(1) of EACCMA provides for mandatory forfeiture of condemned goods
  2. 2.Whether the provisions of sections 215(1) and 217(1) of EACCMA are unconstitutional
  3. 3.Whether the appellant is entitled to the forfeited goods

Key legal issues

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01

Whether section 215(1) EACCMA provides for mandatory forfeiture

Holding

No. Section 199(iii) leaves forfeiture discretionary; section 215(1) only deems goods condemned upon conviction without further proceedings, subject to an interested person's application for release

Reasoning

The Court imported its earlier interpretation of 'shall' and 'liable' from narcotics cases: 'shall' relates to guilt, 'liable' to sentence, allowing discretion. Mandatory sentences must be expressed in clear and unambiguous terms. Section 215(1) must be read in unison with section 199(iii) and cannot take away the trial court's discretion to forfeit or not.

p. 5
02

Constitutionality of sections 215(1) and 217(1) EACCMA

Holding

The provisions are constitutional; they do not violate Articles 27, 40 or 50

Reasoning

Applying the rationality, proportionality and necessity tests for legitimate differentiation, the provisions allow an interested person to step forward and assert rights. Article 40(6) excludes property found to be unlawfully acquired, and the appellant adduced no evidence that the goods were customed. Fair hearing rights were preserved through the section 215(1)/389A CPC procedure and the section 217(2)(c) right of appeal.

p. 7
03

Whether the appellant established ownership of the forfeited goods

Holding

The Court declined to make a finding, as the appellant tendered no documents of ownership before the High Court and pursued neither of the two available statutory avenues

Reasoning

The appeal was against the High Court petition, not the magistrate's decision. The appellant relied only on the magistrate's ruling rather than evidence of ownership, and did not invoke the show-cause procedure under section 215(1) read with section 389A CPC or appeal under section 217(2)(c) EACCMA.

p. 8

Legal principles established

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  • The words 'shall be liable to' in section 199(iii) EACCMA are not mandatory; they leave the trial court discretion whether to forfeit goods or a vehicle
  • Upon conviction, section 215(1) EACCMA deems goods liable to forfeiture condemned without further order, but a person interested may move the court for release, triggering the court's duty to decide
  • Where EACCMA does not provide the procedure for forfeiture, section 389A of the Criminal Procedure Code is the fallback provision, requiring notice to show cause to a person believed to be the owner
  • Sections 215(1) and 217(1) EACCMA are constitutional and do not discriminate against a person claiming ownership of condemned goods

Court orders

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  1. 1.Appeal dismissed
  2. 2.Each party to bear their own costs of the proceedings

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Mohamed Abdulahi Warsame
M. A. WarsameJA
Currently serving
majority
majority
majority
On appeal from
High Court of Kenya at Eldoret
Petition No. 34 of 2019
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Rules, 2022, rule 31(1)(a), on appeal from the High Court constitutional petition

Relief refused

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Declaration that sections 215(1) and 217(1) of EACCMA are unconstitutional

Provisions do not discriminate; they allow assertion of rights in relation to goods liable to forfeiture, and pass the rationality, proportionality and necessity tests

Claim of infringement of the right to property under Article 40

Article 40(6) does not extend rights to property found to have been unlawfully acquired; appellant adduced no evidence that the goods were lawfully acquired

p. 7

Finding on ownership of the forfeited Supermatch cigarettes

Appellant did not tender documents supporting ownership before the High Court and did not pursue the two available statutory avenues

Costs

Each party to bear their own costs of the proceedings

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the words “shall be liable to” as used therein leaves the trial court with the discretion to determine, based on the evidence placed before it, what course of action to take
p. 5Discretionary nature of forfeiture under section 199(iii) EACCMA
It is only through this route that the discretion under section 199 (iii) of EACCMA would be properly exercised.
p. 5Route for exercising forfeiture discretion via an interested person's application
the fallback provision available to the trial court is section 389A of the Criminal Procedure Code (CPC)
p. 5Section 389A CPC as fallback forfeiture procedure
we find that the provisions of sections 215 (1) and 217(1) of EACCMA do not discriminate against the appellant
Constitutionality of sections 215(1) and 217(1) EACCMA
From the foregoing, the fate of this appeal is inevitable. The same is for dismissal and is hereby dismissed.
p. 8Final orders - dismissal of the appeal
it is only just and fair that the parties bear their own costs of the proceedings and we so order.
p. 8Costs order

Issues in the judgment

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minor

Venue contradiction: header says Eldoret, delivery clause says Nakuru

material

Court asserts appellant was owner of the goods while later declining to make any finding on ownership

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Abdi Aziz Mohamed Warsame v Director of Public Prosecutions & another", Case Analysis (2024). Criminal Appeal E057 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1854/eng@2024-12-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.