[2021] KEHC 3118 (KLR)
The court found that the applicant failed to controvert the respondents' evidence that the seized items were released on 6.1.2021, as supported by the OB number. Additionally, the applicant did not provide sufficient proof that the TV was among the seized items, since it was not listed in the inventory signed by the...
Source-derived case information.
- Citation
- [2021] KEHC 3118 (KLR)
- Parties
- Applicant: Cephas Yongai; Respondent: The National Police Service; Respondent: Office of the Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application E214 of 2021
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Release of Seized Property
- Outcome
- application dismissed
- Judges
- DO Ogembo
- Legal Topics
- Seizure of Property, Release of Exhibits, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cephas Yongai
Applicant
The National Police Service
Respondent
Office of the Director of Public Prosecution
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Release of Seized Property
Legal Issues
- 1 Whether the applicant is entitled to an order for release of items seized from his premises by the respondents.
- 2 Whether the applicant has sufficiently proved that the items, including a TV, are still in the possession of the respondents.
Ratio Decidendi
The court found that the applicant failed to controvert the respondents' evidence that the seized items were released on 6.1.2021, as supported by the OB number. Additionally, the applicant did not provide sufficient proof that the TV was among the seized items, since it was not listed in the inventory signed by the applicant and witnessed by his wife. As the applicant did not discharge the burden of proof to show that the items remained in the respondents' possession, the court held that granting the orders sought would be futile. Consequently, the application was dismissed.
Court Disposition
application dismissed
Orders
- The application dated 28.6.2021 is dismissed.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CRIMINALMISCELLANEOUS APPLICATIONCASEE214 OF 2021
CEPHAS YONGAI........................................................................................APPLICANT
VERSUS
THE NATIONAL POLICE SERVICE..............................................1ST RESPONDENT
OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTION ...2ND RESPONDENT
RULING
By application dated 28. 6.2021, brought under certificate of urgency, the applicant, CEPHAS YONGAI, basically pleads that the Respondents be ordered to release to the applicants the various items of the applicant taken away from the applicant’s premises on 4. 1.2021 and held at Kiamumbi police station. The applicant has sworn an affidavit detailing the various items taken away from the applicant. An inventory of the said items was duly attached to the affidavit.
The Respondents have responded to the application by a replying affidavit of one Simon Mutahi sworn on 12. 7.2021. The Respondents, while admitting have taken away the said items have stated that the said seized items have since been released to the applicant on 6. 1.2021.
The parties agreed that this court do rule on this matter based on the 2 affidavits. As it has turned out the 2 affidavits are a direct contradiction of each other i.e whereas, the applicant maintains that the ceased items have not been released, the Respondent has stated otherwise and showed the relevant OB number to confirm the same. The applicant has not disputed this fact.
The court has taken note of one other fact. That the inventory taken as the items were seized was signed by the applicant and witnessed by his wife. In the said inventory, the TV the applicant claims is not listed amongst the items taken away. The applicant has therefore not shown sufficient proof that he TV was one of the items taken from the residence of the applicant.
Considering the circumstances of this case as above, and particularly, the fact that the applicant has not controverted the Respondent’s assertion that the seized items were released to the applicant on 6. 1.2021 (Paragraph 10), I am not convinced that the applicant has sufficiently. Shown that the alleged items are still on the hands of the Respondents or their agents. In the circumstances, issuing the orders sought could be in vain. It is for this reason that the application of the applicant fails. I so find. The application dated 28. 6.2021 is accordingly dismissed.
D. O. OGEMBO
JUDGE
13. 10. 2021.
Court:
Ruling read out in (on-line) in presence of Mr. Muchiri for applicant and Ms. Kimani for Akunja for the state.
D. O. OGEMBO
JUDGE
13. 10. 2021.