https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11675

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MILIMANI NAIROBI** **HCCRREV/E063/2026** **IN THE MATTER OF SECTIONS 362, 364 AND 365 OF THE CRIMINAL PROCEDURE CODE** **AND** **IN THE MATTER OF ARTICLES 22, 23, 25(c), 27, 28, 29, 31, 47, 49, 50, 159 AND 165(6) & (7) OF THE CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF ORDERS ISSUED ON 1ST JULY 2026 IN NAIROBI CMCR MISC. APPLICATION NO. E2922 OF 2026** **BETWEEN** **HALIMA NGOCHE---------------------------------------------------APPLICANT** **VERSUS** **REPUBLIC-----------------------------------------------------------RESPONDENT** **AND** **VOCAL AFRICA-------------------------------------1ST INTERESTED PARTY** **RULING** **INTRODUCTION** 1. This is a Notice of Motion by the applicant seeking to have this court to call for and examine the record in Nairobi CM Criminal Miscellaneous Application No. E2922 of 2026 pursuant to Sections 362 and 364 of the Criminal Procedure Code. 2. The applicant upon the calling up of the lower court file urged the court to consider granting the following orders;- **a).** that pending the hearing and determination of the Application, this Honourable Court be pleased to stay and/or suspend the custodial orders issued on 1st July 2026 in Nairobi CM Criminal Miscellaneous Application No. E2922 of 2026 before Hon. Nyangena (SPM). The prayer is now spent the applicant having be released on Friday 3rd July 2026 following the orders of this court. **b).** that this Honourable Court be pleased to revise, vary, and set aside the custodial orders issued on 1st July 2026. **c).** this Honourable Court to be pleased to declare that the arrest, search, seizure, inter-county transfer, and incommunicado detention of the Applicant, and the proceedings culminating in the issuance of custodial orders, were unconstitutional, illegal, irregular, and improper. **d).** to order her immediate from Pangani Police Station on reasonable bond or on free bond, and in any event to secure her release without condition unless she is lawfully otherwise held (**spent).** **e).** to order the immediate return of all electronic devices and property seized from the Applicant's residence on 30th June 2026 without lawful authority, being: two (2) Redmi 13 mobile phones (IMEI 862109072596741 and 862109072596758), one (1) Tecno Camon 16 mobile phone, one (1) Tecno Tablet (IMEI 356178930848704), and one (1) Dell Laptop (SNO 78KKL72). **f).** to declare that the search and seizure of the Applicant's electronic devices without a valid warrant constituted a violation of Articles 31(b) and (c) of the Constitution, and that any evidence obtained through that unlawful search is inadmissible pursuant to Article 50(4) of the Constitution. **g).** Costs of this Application be provided for. **APPLICANT’S CASE** 1. The application was anchored on the following grounds;- **JURISDICTION** **a).** This Honourable Court has jurisdiction to examine the record of the subordinate court and to revise any order that appears to have been made illegally, improperly, or in excess of jurisdiction pursuant to Sections 362, 364, and 365 of the Criminal Procedure Code, Cap. 75 of the Laws of Kenya. The revisionary jurisdiction is to be exercised where the subordinate court has: (a) exercised jurisdiction not vested in it by law; (b) acted in the exercise of its jurisdiction illegally or with material irregularity; or (c) committed an error of law resulting in miscarriage of justice. **b).** This Honourable Court further possesses superintendence and supervisory jurisdiction over all subordinate courts and tribunals under Article 165(6) and (7) of the Constitution of Kenya, 2010, and is empowered to exercise such supervisory jurisdiction to correct proceedings that are tainted by unconstitutionality or illegality. B**. UNLAWFUL ARREST WITHOUT WARRANT** **c).** Article 49(1) of the Constitution guarantees, as a minimum, that an arrested person shall be informed promptly, in a language that they understand, of the reason for their arrest; the right to remain silent; the right to communicate with an advocate; and the right to be held only in conditions of dignity consistent with the Constitution. Not one of these rights was accorded to the Applicant upon her arrest in Mombasa on 30th June 2026. **d).** The arresting officers did not identify themselves, did not exhibit any warrant of arrest, did not inform the Applicant of the reason for her arrest, and did not permit her to communicate with her advocate or family before bundling her into a motor vehicle and leaving her child unattended. This is corroborated by the unchallenged evidence of her husband and the contemporaneous social media publications demonstrating public ignorance of her whereabouts. **e).** Section 29 of the Criminal Procedure Code provides that a police officer may arrest without warrant only in circumstances specifically enumerated therein. No basis for a warrantless arrest in Mombasa has been disclosed or established. The failure to exhibit any warrant of arrest upon or before the moment of arrest constitutes a fundamental breach of both Section 29 of the Criminal Procedure Code and Article 49(1)(a) of the Constitution. **C.** **UNLAWFUL SEARCH AND SEIZURE** **f).** Section 118 of the Criminal Procedure Code provides that a search warrant must be obtained from a Magistrate before a search of premises is conducted or property seized therefrom. No search warrant was exhibited to the Applicant, her husband, or any other person at the time of the search on 30th June 2026. The seizure of five electronic devices - two mobile phones, a second phone, a tablet, and a laptop - without prior judicial authorization constitutes a direct violation of Article 31(b) and (c) of the Constitution, which guarantees the right not to have one's home or property searched or one's possessions seized. **g).** Article 50(4) of the Constitution provides that evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if its admission would render the trial unfair or would otherwise be detrimental to the administration of justice. Evidence extracted from devices seized without lawful authority is accordingly inadmissible. See: Republic v David Ooga Mokaya, Milimani MCCR/E1161/2024 (19 February 2026) where the court excluded evidence obtained from devices seized without a prior warrant. **D.UNLAWFUL INTER-COUNTY TRANSFER AND INCOMMUNICADO DETENTION** **h).** Article 49(1)(d) of the Constitution requires that an arrested person must be brought before a court as soon as reasonably possible and in any event within 24 hours of arrest. The Applicant was arrested on 30th June 2026 in Mombasa and presented before the Nairobi Chief Magistrates Court on 1st July 2026 - having been transported from Mombasa to Nairobi without: (i) being booked at the nearest police station in Mombasa; (ii) a lawful movement record; (iii) an opportunity to communicate with her advocate or family. The Police Standing Orders require that a suspect transferred between stations be formally booked out of the originating station and booked into the receiving station with all relevant documentation. **i).** The Directorate of Criminal Investigations published news of the Applicant's arrest via its official channels, thereby demonstrating actual knowledge of her custody, while simultaneously withholding her whereabouts from her family. The action by DCI constituted incommunicado detention a practice condemned by Article 49(1)(f) of the Constitution, the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), and the UN Body of Principles for the Protection of All Persons under Any Form of Detention. **E. DEFICIENCY OF THE CUSTODIAL ORDER APPLICATION** **j).** The standard for obtaining custodial orders pending investigation is well established. In Sudi Oscar Kipchumba v Republic (Through National Cohesion & Integration Commission) [2020] KEHC 3221 (KLR), the High Court held that before a court grants custodial orders, the applicant must demonstrate: (a) that investigations are ongoing and cannot be concluded within the ordinary period; (b) specific and identifiable investigative steps that require the physical detention of the suspect; and (c) compelling reasons why bail or bond conditions would be inadequate to secure the suspect's cooperation and attendance. **k).** In Joseph Lendrix Waswa v Republic [2020] eKLR, the court held that detention pending investigations is an exceptional measure of last resort and ought not to be employed as a substitute for diligent investigations or as a mechanism for gathering evidence to justify an arrest already unlawfully effected. **l).** The applicant added that the affidavit of CPL Edwin Metto failed to meet the standard set in the cited cases on multiple grounds: **(i)** it does not identify specific and concrete investigative steps requiring the Applicant's physical detention; **(ii)** it does not demonstrate that bail or bond conditions would be inadequate; **(iii)** it does not establish that the Applicant poses a flight risk, is likely to interfere with witnesses, or has previously failed to honour any lawful summons; **(iv)** it does not disclose the legal authority under which the search, seizure, and inter-county transfer were conducted; and **(v)** it does not disclose the failure to accord the Applicant her rights upon arrest or during her period of detention. m). The affidavit further failed to disclose any sworn communication or certificate from XCorp (formerly Twitter Inc.) verifying that the X account @sholard\_mancity is registered to or was operated by the Applicant. Attribution of online publications without documentary verification from the platform provider is legally insufficient to establish the evidential basis required for custodial detention. See: Republic v David Ooga Mokaya (supra) where the court found that evidence of online publications required formal platform verification. **n).** The affidavit additionally failed to acknowledge that the flight data of Private Jet Registration No. T7-BBJ2 (Hex: 500517) is publicly available information broadcast in real time on open-source aviation tracking platforms accessible to any member of the public. The publication of such information cannot, without more, constitute the actus reus or mens rea of the offence of cyber harassment under Section 27(1)(a) of the Computer Misuse and Cyber Crimes Act. **F. FAILURE OF THE SUBORDINATE COURT TO EXERCISE JURISDICTION PROPERLY** o). The learned Magistrate, in granting custodial orders, failed to: (i) inquire into the constitutional violations perpetrated against the Applicant prior to her presentation before court; (ii) interrogate whether the search and seizure of her electronic devices had been conducted with lawful authority; (iii) consider whether less restrictive measures than custodial detention were available and appropriate; and (iv) apply the legal standard in Sudi Oscar Kipchumba (supra) before authorizing detention. These failures rendered the custodial orders the product of an improper and irregular exercise of judicial discretion warranting revision, p). The subordinate court further proceeded to determine the application in circumstances where the Applicant had effectively been denied equality of arms she had no advocate present, had no knowledge of the application before the court, and was not in a position to present any contrary facts. This violated Article 50(2)(g) and (h) of the Constitution, which guarantee the right to have adequate time and facilities to prepare a defence and to be represented by an advocate. **G. ELECTRONIC EVIDENCE** q). The Applicant relied upon the Certificate of Electronic Evidence prepared pursuant to Section 106B of the Evidence Act, Cap. 80 of the Laws of Kenya, annexing contemporaneous electronic publications demonstrating: (i) that the Directorate of Criminal Investigations publicly acknowledged the Applicant's arrest while withholding her whereabouts from her family; (ii) that her husband publicly sought disclosure of her location through social media; and (iii) that VOCAL Africa formally demanded disclosure of her whereabouts from the National Police Service. According to the applicant these publications establish beyond any reasonable doubt that the Applicant was held incommunicado, and that the material circumstances of her arrest and detention were concealed from both her family and the subordinate court. **r).** The applicant maintained that the said electronic evidence was admissible pursuant to Section 106B of the Evidence Act and corroborated the Applicant's contention that she was effectively subjected to incommunicado detention before being produced before Court. **s).** Further, that the learned Magistrate was not made aware of these material circumstances when exercising discretion to issue custodial orders. **t).** The impugned orders were therefore founded upon incomplete, misleading and insufficient material. **u).** According to the applicant the Court failed to safeguard the Applicant's constitutional right to liberty and instead sanctioned detention that was unnecessary, disproportionate and unconstitutional. 1. The applicant urged this court on the basis of the grounds set out above, to find that it was in the interests of justice that this Honourable Court exercises its supervisory powers and reverse the decision by the learned Honorable Magistrate and grant the orders sought. 2. In support of the grounds on the face of the application, the applicant further relied on the supporting affidavit of Halima Ngoche who deponed that she was detained at Pangani Police Station pursuant to custodial orders issued on 1st July 2026, 3. The applicant further deponed that on 30th June 2026, in the early morning hours, together with her husband Mr. Saddam Indimuli, they were awoken by loud and aggressive knocking and banging on the door of their family home at Kazandani area, Mombasa County. 4. According to the applicant upon opening the door, three men, who did not identify themselves, did not produce any warrant of arrest, did not exhibit any search warrant, and did not communicate forcibly entered their home, called out her name, and showed her husband a photograph of her as the reason for their being there. 5. The applicant further deposed that her husband demanded to know who these men were, the reason for their presence, and where they intended to take the applicant and they refused to answer. 6. The deponent further averred that they commanded her to dress and leave with them immediately, without affording her any opportunity to consult a lawyer, communicate with her family, or make arrangements for the welfare of her child. 7. That following the arrest in the circumstances stated she was separated from her minor child, and bundled into a black Subaru motor vehicle. 8. The child was left unattended at the ground floor of their home. 9. The applicant’s husband was told to follow them to Central Police Station. 10. The applicant further deponed that prior to leaving the premises, the said men conducted an unlawful search of their home and seized the following electronic devices, without exhibiting any search warrant or lawful authority: (a) Two (2) Redmi 13 mobile phones (IMEI: 862109072596741 and 862109072596758); (b) One (1) Tecno Camon 16 mobile phone; (c) One (1) Tecno Tablet (IMEI: 356178930848704); and (d) One (1) Dell Laptop (Serial No. 78KKL72). 1. The applicant went on to state that she was transported from Mombasa to Nairobi by officers of the Serious Crimes Unit of the Directorate of Criminal Investigations and that during the entire journey she was not informed of the specific reason for her arrest, was not permitted to contact any person, and was not informed of any charges against her. 2. She further averred that she was not booked at any police station in Mombasa prior to her transfer. 3. The applicant deponed further that on 1st July 2026 she was presented before the Chief Magistrates Court at Nairobi in CM Criminal Miscellaneous Application No. E2922 of 2026, where the state sought custodial orders for seven (7) days. The learned Magistrate granted three (3) days of custodial detention. 4. She maintained that she was not represented by a lawyer at that hearing and that she was not given adequate time or opportunity to instruct an advocate or to present any response to the application. 5. The applicant further averred that throughout the period from her arrest on 30th June 2026 until her presentation before court on 1st July 2026, her family had no knowledge of her whereabouts. 6. She went on to state that her husband made repeated public appeals through social media seeking information as to where she had been taken to. VOCAL Africa similarly issued public statements demanding that the National Police Service disclose her location. 7. The applicant contended that despite those public appeals, the Directorate of Criminal Investigations had, on its own channels, published information about her arrest whilst simultaneously withholding her whereabouts from the family. 8. According to the applicant she was effectively held incommunicado during the entire period. 9. The applicant in support of her averments annexed are copies of the electronic publications demonstrating her husband's public appeals for information and VOCAL Africa's formal demand for disclosure, together with a Certificate of Electronic Evidence prepared pursuant to Section 106B of the Evidence Act, Cap. 80 of the Laws of Kenya, confirming the authenticity of those electronic records. 10. According to the applicant, had those facts been disclosed to the learned Magistrate at the time of the application for custodial orders, the applicant verily believes that the Court would have appreciated that there had already been serious and continuing constitutional violations in the conduct of her arrest and detention, which required judicial intervention and protection rather than the authorization of further detention. 11. The applicant further posited that the the affidavit sworn by CPL Edwin Metto, upon which the custodial orders were granted, was materially deficient in the following respects: (a) It did not disclose the legal basis upon which the search of her residence was conducted; (b) It did not disclose the authority for the seizure of her electronic devices; (c) It did not disclose the authority for her transportation from Mombasa to Nairobi without any booking record; **(d)** It did not disclose that she had been held incommunicado and denied access to counsel or family; **(e)** It did not annex any sworn communication or certificate from XCorp confirming that the X account @sholard\_mancity was registered to her or was operated by her; **(f)** It did not acknowledge that the flight data for Private Jet Registration No. T7-BBJ2 (Hex: 500517) constituted publicly available information on open-source aviation tracking platforms; and **(g)** It failed to identify specific investigative steps requiring custodial detention rather than bail or bond conditions. 1. The applicant further urged that this Honourable Court possesses jurisdiction under Sections 362 and 364 of the Criminal Procedure Code, and under Articles 165(6) and (7) of the Constitution of Kenya, 2010, to call for and examine the record of the subordinate court and to revise any order that was made illegally, improperly, or in excess of jurisdiction. 2. According to the applicant unless the impugned custodial orders are revised and that she is released from custody she would continue to suffer unlawful deprivation of liberty, in violation of my constitutional rights under Articles 28, 29, 49, and 50 of the Constitution, for the remainder of the custodial period. 3. The applicant further deposed that the electronic devices seized from her home without lawful authority are protected under Article 31(b) and (c) of the Constitution, and that any evidence derived from those devices is inadmissible pursuant to Article 50(4) of the Constitution of Kenya, and urged this Court to order their immediate return to her. **RESPONDENT’S CASE** 1. The respondents in answer to the application and in opposition thereto filed a replying affidavit sworn by No. 80487 CPL EDWIN METTO, a Police Officer currently attached to the Directorate of Criminal Investigations Headquarters. 2. The deponent averred that he is a Police Officer within the meaning of the National Police Service Act No. 11A of 2011 Laws of Kenya based at the Directorate of Criminal Investigations Headquarters, SERIOUS CRIME UNIT, one of the detectives charged with investigations related to the subject matter thus competent and duly authorized to swear the affidavit. 3. The deponent went on to state that he was the officer investigating Criminal case relating to the offence of Cyber Harassment Contrary to Section 27(1)(a) as read with Section 27(2) of Computer Misuse and Cybercrimes act No. 5 of 2018 whereby in the course of investigations the Applicant herein was identified as a person of interest. 4. The deponent admitted that the Applicant was arrested on the 30th day of June 2026 at Kazandani area in Bamburi within Mombasa County and immediately escorted to Nairobi, and subsequently presented to court at Milimani on 1st July 2026 where the court granted custodial orders under Criminal Miscellaneous Application No. E2922 of 2026. 5. He further deponed that on the 2nd day of July 2026 he was informed of the application by the Applicant herein and consequently served with a copy of the same through the Office of the Director of Public Prosecutions. 6. The deponent further stated that on the date of arrest, the following items among others, were seized from the applicant’s residential house i). Redmi mobile phone of IMEI 1: 862109072596741 & IMEI 2: 862109072596758, **ii)** Tecno Camon 16 mobile phone of unknown IMEI **iii)** Tecno Tablet of IMEI: 356178930848704 **iv)** Dell laptop of S/No. 78KKL72 **v)** Three flash discs 1. The officer attached copy of the Inventory of the items seized as confirmation that indeed the items were seized during the arrest of the applicant. 2. The deponent deposed that the matter under investigations is serious in nature and as such it is considered to be a cognizable offence of which the Police may arrest without a warrant as was in the case of the Applicant. 3. According to the investigation officer, the arresting officers relied in the Sections 29(a) of the Criminal Procedure Code Cap. 75 Laws of Kenya as well as Section 58(c) of the National Police Service Act No. 11A of 2011 in effecting the said arrest. 4. The deponent further averred that he was advised by counsel that cyber harassment under Section 27 of the Computer Misuse and Cyber Crimes Act is a cognizable offence. 5. The deponent went on to state that the applicant was suspected, upon reasonable grounds, of having published offensive and harassing content via the X account @sholard\_mancity, which targeted a public figure who is symbol of National unity. 6. The offence of cyber harassment is punishable by a term of imprisonment and therefore qualifies as a cognizable offence. 7. The deponent further posited that in **Kasina v Attorney General & another [2024] KEHC 7573 (KLR),** the High Court held that an arrest without a warrant is lawful where the police have reasonable grounds for taking a person into custody for interrogation on suspicion of commission of a crime, and that "it is not every arrest that amounts to violation of fundamental rights and freedoms". 8. According to the officer there was reasonable suspicion that the electronic gadgets seized during arrest were associated to the social media publications and due to the volatility nature of electronic evidence immediate seizure was necessary and reasonable. 9. The deponent denied that the search and seizure of the Applicant's electronic devices was unlawful citing Section 25 of the Criminal Procedure Code empowers a police officer to search a person arrested, whether with or without a warrant, and to place in safe custody all articles found upon her. 10. The deponent contended that in **Kuruma v The Queen [1955] AC 197**, the Privy Council held that the test for admissibility of evidence is whether it is relevant to the matters in issue, and the court is not concerned with how it was obtained. The search conducted upon a lawful arrest is permissible without a warrant, as the law recognizes the exigency of preserving evidence that may be destroyed or concealed. 11. The investigating officer further deposed that he was advised by counsel that the Applicant's reliance on **Republic v David Ooga Mokaya (Milimani MCCR/E1161/2024)** is misplaced. The deponent posited that the case involved a search of premises where the accused person was not present and where a search warrant was required. In the present case, the search was incidental to a lawful arrest, which is a well-recognized exception to the warrant requirement. 12. The deponent averred that as at the time of filing of Criminal Miscellaneous Application No. E2922 of 2026 investigations were not complete. 13. Consequently, there was no disclosure of evidential material on the grounds that such disclosure would have occasioned serious prejudice on the matter under investigations. 14. The deponent went on to state that the Applicant herein was not charged for any offence and for that reason the investigating officer was not required to disclose evidence before a suspect is formerly charged as suggested in paragraph 13(e) of her Supporting Affidavit but is merely required to demonstrate the reason why she should be held pending conclusion of investigations. 15. The investigation officer went on to state that he had established that the identified X Corp. account was active during the time the Applicant had been taken to custody thereby implying that the account was likely operated by several admins and once released, the Applicant was likely to establish contact with the said persons believed to be accomplices and such contact would occasion potential interference thus the reason why he sought to have the applicant detained pending charge. 16. Further, the deponent averred that flight movement data may be available through open-source, however, flight passenger personal data is not publicly accessible information contrary to the Applicant's averment in paragraph 13(f) of her Supporting Affidavit and for that he maintained that there was reason, and reasonable suspicion that the averred X Corp. user did access sensitive data e.g. passenger flight manifest(s). 17. The investigation officer contended that the Applicant was duly informed of the reason for her arrest and later escorted to Nairobi where the matter is being investigated and booked in at Ruaraka Police station as per the Station's Occurrence Book No. 63 of 30th June 2026 at 2354hrs. 18. According to him, the assertion that the Applicant was unlawfully transported from Mombasa to Nairobi as indicated in paragraph 4 on the Certificate of Urgency is far-fetched, considering that she was presented in court within 24 hours of her arrest. 19. The deponent went on to state that the Police Standing Orders require that an arrested person be brought before court as soon as possible, but not later than twenty-four hours after being arrested and that there is no requirement in law that an arrested person must be booked at the nearest police station before being transferred to another station for purposes of court presentation, provided the arrested person is brought before a court within the twenty-four-hour window. 20. Further, that the Applicant's transfer from Mombasa to Nairobi was necessitated by the nature and seriousness of the offence under investigation, which was a complex cybercrime involving online publications and requiring coordination with the Serious Crimes Unit based in Nairobi. 21. He maintained that the transfer was not intended to prejudice the Applicant but was for the efficient conduct of investigations. 22. The deponent further contended that contrary to the Applicant's allegation of incommunicado detention, she was afforded the opportunity to communicate with her family. 23. The officer further observed that the applicant was also represented by advocates who appeared before the learned Magistrate on her behalf thus the assertion that she was held incommunicado was therefore factually incorrect. 24. The respondents cited the case of **Kasina v Attorney General & another** where the High Court held that "the fact that the petitioner was released without being charged cannot, on its own, be termed to have been in violation of his fundamental rights and freedoms". 25. The respondents posited that the mere fact that the Applicant was transported from Mombasa to Nairobi does not, by itself, constitute a violation of her constitutional rights, provided she was presented before a court within the statutory time limit. 26. The investigation officer further informed this court that on the 2nd day of July 2026 he sought court orders under Criminal Miscellaneous Application No. E2972 of 2026 seeking orders to conduct forensic examination on the electronic gadgets described in paragraph 4(i-iv) which orders were granted. 27. According to him, the Applicant has not challenged the substance of the custodial orders granted by the learned Magistrate, but has instead focused on alleged procedural irregularities. The custodial orders were granted by the learned Magistrate after considering the application and being satisfied that the Applicant's detention was necessary to facilitate ongoing investigations into a serious offence. 28. He maintained that the three (3) day custodial period granted by the learned Magistrate was appropriate and proportionate in the circumstances. 29. According to the officer the investigation involves complex digital forensic analysis of the Applicant's electronic devices, which could not be completed within a shorter period. 30. Further, the deponent averred that the Applicant's allegations of constitutional violations were unsubstantiated and contradicted by the facts. He added that she had failed to demonstrate that the investigating agencies acted in bad faith or that the search, arrest, transfer, or detention was motivated by malice. 31. The respondents therefore urged the court to decline granting the orders sought in the application and that the orders issued in Milimani Magistrate's court Criminal Miscellaneous Application No. E2922 of 2026 be upheld. **ANALYSIS AND DETERMINATION** 1. The applicant moved this court challenging the custodial orders granted by the learned Hon Magistrate allowing the police to detain her for a period of 3 days before she could be formally charged. 2. The applicant further sought to have this court declare that the search conducted on her premises during the arrest and the confiscation of her electronic gadgets was done without a warrant thus the Constitutional rights of the applicant under Article 31(b) and (c) of the Constitution on privacy were breached. 3. The applicant further urged this court to declare that any evidence that may have been obtained from the seized gadgets falls in the category of unlawfully obtained evidence in line with the provisions of Articele 50 (4) of the Constitution and that the same should not be relied on in any proceedings that the respondents may wish to commence against the applicant. 4. The applicant was arrested in Mombasa and moved to Nairobi where she was presented to court as required under Article 49 (1) (h) of the Constitution and duly informed of her reason for continued detention by the lower court. 5. The proceedings of 1st July 2026 before the learned Honorable Nyangena SPM indicate that the Investigation Officer was duly sworn and he informed the court in the presence of the applicant that he was she was held in connection with cybercrime investigations following intelligence reports received by the officer. 6. The officer told the court that the applicant had posted information relating to a flight that the president of the Republic of Kenya was using. 7. The Learned Honorable Magistrate captured the officer stating that even as at the time the applicant was before court the account in issue was still tweeting indicating that the there were several administrators to the account. 8. The Honorable Magistrate proceeded to order the detention of the applicant for 3 days thus at the time the matter came for hearing before this court, the 3 days were ending on the same date of 3rd July 2026 prompting the court to order that she be released from custody at 5:00pm in line with the lower court order since the mention before the lower court was to be on Monday 6th July 2026. 9. The respondents complied with the orders of the court and the court was informed that she was indeed released on 3rd July 2026. 10. The complaint about arrest and detention by the applicant is that it was done in Mombasa thus she ought to have been presented before the Mombasa law courts. 11. The Criminal Procedure Code under Section 64 allows a police officer knowing of a design to commit a cognizable offence to arrest a suspect without orders from a Magistrate or without a warrant the person so designing if it appears to the officer that the commission of the offence cannot otherwise be prevented. 12. At the hearing of the application Mr. Mogere Counsel for the state argued that the police were investigating a cognizable offence under Section 27 of the Computer Misuse and Cybercrimes Act. Counsel therefore urged the court to find that the arrest without a warrant was justifiable in law and so were the detention orders. 13. The state however conceded that the arrest happened in Mombasa and she was transported to Nairobi for purposes of investigations. 14. The issue that requires to be answered is whether after arrest in Mombasa the police acted lawfully by moving the applicant to Nairobi without a court order. 15. Section 71 of the Criminal Procedure Code is explicit on the ordinary place of inquiry and trial. The Section provides;- ***Ordinary place of inquiry and trial*** ***71. Subject to the provisions of section 69, and to the powers of transfer conferred by sections 79 and 81, every offence shall ordinarily be tried by a court within the local limits of whose jurisdiction it was committed, or within the local limits of whose jurisdiction the accused was apprehended, or is in custody on a charge for the offence, or has appeared in answer to a summons lawfully issued charging the offence.*** ***[Act No. 13 of 1982, First Sch.]*** 1. The provision therefore requires that arrested person be presented before the nearest court within whose limit the person is apprehended. 2. The Section read together with Article 49 (1) (h) must be interpreted to mean that the court envisaged under Article 49 is the court within the local limit where a suspect is apprehended. 3. The framers of our Constitution must have intended to mean the court within the local limits of apprehension of the suspect so as to avoid long unexplained pre-charge detention as suspects are moved from one end of the country to the other. 4. The provision in my view was intended to make it possible for the arresting officers to arraign an arrested person in the hands of the nearest court for purposes of judicial supervision of the process immediately after arrest. 5. It is also important to mention here that by presenting a suspect at the nearest court, the arrested person is not extracted from his local networks that are crucial in securing his release on bail and legal representation rights that impact on his fair trial rights under Article 50 of the Constitution. 6. The fact that the state required to involve the serious crimes prevention unit in their investigation cannot be possibly an excuse to avoid compliance with the express provisions of the Criminal Procedure Code and the Constitution. 7. The devolution of court services to every corner of the country is meant to ensure that Kenyans can access court services at the nearest court station and save them the trouble of travelling hundreds of kilometers away in search for justice. 8. The police therefore ought to have presented the applicant at the Mombasa law courts and if, for whatever reason, they required to move her from the local limits of her place of arrest, the law under Sections 81(1)(d) of the Criminal Procedure could have been invoked after her appearance in court to have the matter moved to the place where the ensuing trial would be conducted without any difficulty to any of the parties. 9. The conduct of investigators must meet the test of transparency and accountability envisioned under Article 10 of the Constitution. The presentation of an arrested person to the nearest court within 24 hours is an accountability issue so that personal liberties are not curtailed without court sanction and an arrest must never be shrouded in secrecy because the liberty of the subject is a matter of grave concern not only to the arrestee but also his close relatives and family. 10. The court therefore agrees with the applicant’s counsel that the applicant’s removal to Nairobi was not in line with the law by dint of the provisions of Section 71of the Criminal Procedure Code. 11. The state did not offer a satisfactory explanation why it was necessary to move the applicant all the way to Nairobi to arraign her and seek custodial orders. The practice should be discouraged in order to promote accountability on matters arrest and pre-charge detention. 12. The court however, does not agree with the applicant that the action should vitiate the proceedings before the learned Honorable Nyangena for the court had the subject matter jurisdiction to entertain the application and an outright rejection of the application on account of geographical jurisdiction would have led to further incarceration of the applicant without according her due process. 13. The applicant is now at liberty and any orders issuing in regard to the pre charge detention would be orders in vain. 14. The court now turns to the more critical question of the search which the respondents admitted was done without a warrant. 15. The investigator admitted in his affidavit in support the as at the time they went to arrest the applicant they were acting on intelligence that she was operating an X Corp account namely Sholla Ard@sholard\_mancity to publish the offending information. 16. It follows therefore that the police knew that they were targeting the applicant over electronic publication thus they certainly were to seize the equipment or gadget used by the applicant to publish the information. 17. The confiscation of the electronic gadgets was an anticipated event and thus a search on the person, dwelling or office was bound to be undertaken to recover the gadget. 18. The team of investigator should therefore have obtained a warrant of search and seizure of the gadgets. 19. The right to privacy under Article 31 of the Constitution must be respected even in the course of investigations. The limitation of the right must be justifiable in an open and democratic society. The investigation of a suspected criminal offence would justify such limitation where a reasonable cause exists to justify an investigation and possible prosecution. 20. The legislature in its wisdom enacted Section 118 of the Criminal Procedure Code which meets the requirement of Article 24 of the Constitution. The Section provides;- **118. Power to issue search warrant** ***Where it is proved on oath to a court or a magistrate that anything upon, with or in respect of which an offence has been committed, or anything which is necessary for the conduct of an investigation into an offence, is, or is reasonably suspected to be, in any place, building, ship, aircraft, vehicle, box or receptacle, the court or a magistrate may by written warrant (called a search warrant) authorize a police officer or a person named in the search warrant to search the place, building, ship, aircraft, vehicle, box or receptacle (which shall be named or described in the (warrant) for that thing and, if the thing be found, to seize it and take it before a court having jurisdiction to be dealt with according to law.*** 1. The investigating officer did not explain why he did not seek a warrant before embarking on the arrest and seizure of the items complained of. The gadgets seized cannot be said to have been discovered upon arrest or under exigent circumstances to justify a search without a warrant. The arrest may have been lawful but the search and seizure could not be justified. 2. The investigator appears to have focused more on the need to arrest and ignored the fact that if in the course of arrest a search would be necessary, the law required them to obtain a warrant prior to proceeding to the applicants place of abode. 3. The applicant did not consent to the search either so as to render the requirement for a search warrant redundant. The police officers who went for the applicant all the way to Mombasa from Nairobi did not just stumble on evidence during the execution of a lawful arrest. The officers had full knowledge of what they were looking for and the nature of evidential material they were likely to encounter. 4. The investigator could therefore foretell that the applicant or the user of the account they were targeting must have had in their custody an electronic gadget that they were using to broadcasting the information that they deemed offensive. The decision to proceed and conduct a swoop at her home without a warrant amounted to a violation of her right to privacy under protected under Article 31 of the Constitution. 5. In **Ouko & 6 others v Inspector General of Police & 11 others (Constitutional Petition E005 of 2025) [2025] KEHC 12696 (KLR) (10 September 2025) (Judgment)** the court held**;- “**Among the seized equipment by the police was computers as evidenced in the inventory signed by the police officers. Section 48 of the [*Computer Misuse and Cybercrimes Act*](https://new.kenyalaw.org/akn/ke/act/2018/5) provides that computers cannot be seized without a warrant. Therefore, the seizure by the respondents of the computers and equipment was illegal. It is my considered view that the respondents violated the right to privacy of the 1st petitioner by entering into his premises without a search warrant and confiscating his computers and equipment without a warrant. There is a connection between an individual’s right to privacy and the right to dignity. **Mativo J**(as he then was) in [***MWK & Another v Attorney General & 3 Others***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2017/1496)**[2017] eKLR**stated that:-Privacy fosters human dignity insofar as it is premised on and protects an individual’s entitlement to a “sphere of private intimacy and autonomy. The rights of equality and dignity are closely related, as are the rights of dignity and privacy. 6. The law therefore is settled in this country that where the evidence sought to be seized is electronic and is stored in computers and cellphones the investigator requires a search warrant otherwise anything done to the contrary would lead to the exclusion of the evidence obtained. 7. The instant application thrusts to the fore the **“Fruit of the poisonous tree” doctrine**. The doctrine is basically a legal countermeasure provided for by the courts that excludes evidence obtained from illegal searches and seizures. 8. It also deals with any evidence obtained by a violation of an accused persons right to a fair trial as provided for under Article 50 (2) (i), (f) and 50 (4) of the Constitution. See **Wong Sun v. United States, 371 U.S. 471, 83** **S.Ct. 407 (1963) and State v. Johnson, 118 N.J. 639 (1990**). 9. The courts would not allow any evidence that is collected without following due process subject only to evidence that would fall under inevitable discovery, the attenuation doctrine, and the new crimes exception. in the instant matter the investigator knew that he was bent on arrest and recovery of the instrumentality of crime which could fall in the category of a computer or a cellphone. 10. The respondents in this application cannot avail themselves any of these exceptions to remedy the situation. The officers knew that there was need to obtain a warrant of search but chose not to obtain one. The rights of the applicant cannot be sacrificed at the alter of convenience. 11. The Constitution recognizes the need for our security organs to pursue National Security matters within the bounds of law. Law enforcement officers must therefore seek to undertake investigations within the confines of the law and in all appropriate cases seek search warrants whenever necessary. 12. Article 238 of the Constitution clearly stipulates that;- **238.** (1) National security is the protection against internal and external threats to Kenya’s territorial integrity and sovereignty, its people, their rights, freedoms, property, peace, stability and prosperity, and other national interests. (2) The national security of Kenya shall be promoted and guaranteed in accordance with the following principles— (*a*) national security is subject to the authority of this Constitution and Parliament; (*b*) **national security shall be pursued in compliance with the law and with the utmost respect for the rule of law, democracy, human rights and fundamental freedoms**; (*c*) in performing their functions and exercising their powers, national security organs shall respect the diverse culture of the communities within Kenya; and (*d*) recruitment by the national security organs shall reflect the diversity of the Kenyan people in equitable proportions. (***emphasis added*)** 1. Article 2 (5) and (6) Constitution decrees the place of international law in Kenya. The Country has moved to embrace international best practice in the manner we adjudicate matters of justice in the country. It is thus important for one to look at what is the international best practice in dealing with matters concerning illegally obtained evidence and the Human rights discourse around the matter of unlawful searches. 2. **Article 69(7) of the** **Rome Statute**, for instance, stipulates that the International Criminal Court shall not deem evidence admissible that was “obtained by means of a violation of this Statute or internationally recognized human rights” if: (a) The violation casts substantial doubt on the reliability of the evidence; or (b) The admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings. 1. The courts cannot sanction collection of evidence in a manner that violates the rights of individuals because to do this court would be abdicating its responsibility under Article 23 to uphold and enforce the Bill of rights. 2. It should be noted that where the law prescribes a specific procedure to be followed such as the procedure set out under Section 118 of the Criminal Procedure Code, the court cannot bend backwards to accommodate searches that are undertaken in violation of the law. 3. Investigative agencies must strive to undertake their processes of investigation in line with the law and avoid taking steps that may outrightly prejudice an individual’s right to a fair trial should they end up being charged. In **R. vs. Secretary of State for Home Department, exp Pierson [1998] AC 539** the court held that: **“The rule of law in its wider sense has procedural and substantive effect; the rule of law enforces minimum standards of fairness, both substantive and procedural…The State is bound by considerations of substantive fairness…the presumption must be that he will exercise his powers in a manner which is fair in all the circumstances. What fairness demands depends on the context in which the power is being exercised.”** 1. The technological revolution that the world is undergoing has opened a new dimension of investigations which require some ingenious approach by the modern investigator to avoid falling a foul of the law whenever one is called upon to investigate a matter that a cybercrime element in it. The use of mobile phones and other forms of computers in the commission of crimes calls for more sophisticated and skillful approaches to investigations to safeguard against violations of individual privacy. 2. The mobile phone in the hands of a suspect at times might hold information that is too sensitive, strictly personal and confidential that may not necessarily relate to the matter an investigator may be interested in. 3. For instance, with mobile banking, the handset may hold financial information of the suspect that would only be obtained by an investigator from the bank strictly upon the investigator applying for search warrants directed at the bank. Further, with telemedicine it is highly probable that one’s handset may hold information that touches on their health status that is strictly confidential and can only be released upon the concerned party giving consent to access such information. 4. The list of the nature of information that may be carried in a mobile phone or personal computer is endless. The need for warrants to search mobile phones and personal computers therefore need not be overemphasized. 5. In **Riley v. California, 573 U.S. 373 (2014**) the US Supreme court held ***“Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what*** ***police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant***.’’ 6. The police in the instant matter having proceeded to arrest and search the house of the applicant without a warrant, exposed their results of their investigation to judicial censure thus rendering any evidence retrieved from the gadgets without a warrant susceptible to exclusion in the event that the applicant is charged for the offence she was under investigation. 7. The applications for search warrants are done ex -parte thus there is absolutely no excuse for an investigating officer who has intelligence pointing them to a particular suspect at a defined location not to obtain a search warrant before raiding the premises and seizing the equipment or gadgets used in the commission of the crime. 8. The gadgets seized in this matter cannot be said to fall within the realm of items recovered contigent to an arrest for the investigator clearly indicated to the court below that they were investigating a cybercrime related offence which obviously meant that electronic gadgets would be recovered. 9. An investigation is not made good by what it turns out to be. It is good or bad when it starts and throughout the entire process because the duty to uphold the individual’s rights continues throughout the investigation. 10. In **Prakash Kadam and Others Vs. Ramprasad Vishwanath Gupta and another, (2011) 6 SCC 189** it was held that : **“that there is nothing worse in the world than lawlessness, for a State of Matsyanyaya (law of the jungle), nobody, not even the evil doers are safe, because even the evil doers will sooner or later be swallowed up by other evil doers’’** 1. The rule of law requires that law enforcement be done in accordance with the law and undertaken in manner that respects and upholds the rights of individuals.The basic rule is that those that are charged with law enforcement must lead by example in ensuring that the law is followed in the discharge of their functions. There cannot possibly be a higher calling. 2. This court in exercise of its revisionary powers under Sections 362 and 364 of the Criminal procedure Code as read together with Article 165(6) of the Constitution looks into the irregularity, incorrectness, impropriety and or illegality of the decision by the subordinate court that it is called upon to review. 3. The upshot of the above analysis of the case is that the order to detain the applicant in order to allow the investigator conduct investigations into by exploiting gadgets that had been illegally seized from the applicant was irregular and improper. 4. The court ought not to have acceded to the request by the respondent considering that they had acted in breach of Sections 71 and 118 of the Criminal Procedure Code as read together with section 48 of the Computer Misuse and Cybercrimes Act. In **Ngunyi v Mohammed (Commercial Case E083 of 2022 & Commercial Arbitration Cause E023 of 2023** (Consolidated)) [**2026] KEHC 2736 (KLR) (Commercial and Tax**) (26 February 2026) (Ruling) the court held: **“I am persuaded that, in the absence of leave, the execution process culminating in the issuance of warrants of attachment was procedurally irregular. The Court cannot lend its aid to a process that is undertaken in clear disregard of an express statutory requirement. This position accords with the long-standing principle, articulated in Kenyan jurisprudence, that courts will not sanction acts founded on illegality.”( emphasis added)** 1. The order was irregularly issued but there is nothing to quash since the applicant has since been released from custody thus the offending order is spent. 2. As for the gadgets the applicant is entitled to the return of the items under Article 40 of the Constitution unless they are held on account of a lawful order of the court. 3. It is so ordered. **DATED, SIGNED** and **DELIVERED VIRTUALLY** at **NAIROBI** this 14th day of **JULY, 2026.** **A M. MUTETI** **JUDGE** **In the presence of:** Court Assistant: Habiba Mutiso for Applicant Mogere for Respondent