[2024] KEHC 9949 (KLR)
The court found that the applicant's firearm was lawfully confiscated during the pendency of criminal proceedings, but since the case was withdrawn under Section 204 of the Criminal Procedure Code and there was no opposition from the respondent, there was no legal basis for continued detention of the firearm. The...
Source-derived case information.
- Citation
- [2024] KEHC 9949 (KLR)
- Parties
- Applicant: Abdullahi Abdille Issack; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E113 of 2024
- Procedural Posture
- Miscellaneous Criminal Application / Ruling
- Outcome
- application allowed
- Judges
- DR Kavedza
- Legal Topics
- Firearm Confiscation, Withdrawal of Charges, Release of Property, Court Orders for Property, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdullahi Abdille Issack
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling
Legal Issues
- 1 Whether the applicant is entitled to the release of his firearm after withdrawal of criminal charges.
- 2 Whether continued detention of the firearm by the Chief Licensing Officer is lawful.
Ratio Decidendi
The court found that the applicant's firearm was lawfully confiscated during the pendency of criminal proceedings, but since the case was withdrawn under Section 204 of the Criminal Procedure Code and there was no opposition from the respondent, there was no legal basis for continued detention of the firearm. The only outstanding issue was the absence of a court order for release. The court held that continued withholding of the firearm was unjustified and ordered its immediate release to the applicant, unless the firearm or applicant is under any ongoing investigation.
Court Disposition
application allowed
Orders
- The Officer in Charge, Chief Licensing Officer Firearms Licensing Board is hereby ordered to release the applicant’s firearm serial no. B61xxxx under Firearms License No. 00xxxx, pursuant to the order issued at Milimani Chief Magistrate’s Court Criminal Case no. E492 of 2023 on 29th October 2023 unless the applicant...
- File closed.
Full Case Text
Judgment text and source record
22 paragraphs
Issack v Republic (Miscellaneous Criminal Application E113 of 2024) [2024] KEHC 9949 (KLR) (31 July 2024) (Ruling)
Neutral citation: [2024] KEHC 9949 (KLR)
Republic of Kenya
In the High Court at Kibera
Miscellaneous Criminal Application E113 of 2024
DR Kavedza, J
July 31, 2024
Between
Abdullahi Abdille Issack
Applicant
and
Republic
Respondent
Ruling
1. The applicant filed the present notice of motion seeking an order directing the Chief Licensing Officer, Firearms Licensing Board to forthwith release the Applicant’s Firearm Serial No. B61xxxx issued under Firearm License Number 00xxx. The application is grounded on averments on the face thereof and supported by an affidavit sworn by the applicant.
2. The applicant holds a Civilian Firearm License, No. 00xxxx, issued by the Firearm Licensing Board on December 30, 2016, and has used the firearm lawfully since its issuance. However, in July 2023, the applicant was charged in Milimani Criminal Case No. E492 of 2023, leading to the confiscation of the firearm during the investigation. On October 29, 2023, the case was withdrawn under Section 204 of the Criminal Procedure Code. Despite this, the applicant has been unable to retrieve the firearm, which remains unlawfully detained for over nine months, leaving him exposed to potential danger. The applicant now seeks the court's intervention to have the firearm released to him.
3. When the application came up for hearing on 31st July 2024, the respondent did not raise an objection to the release of the firearm to the applicant.
4. I have considered the application, the affidavit in support and the submissions by the respective advocates on record for the parties.
5. I have noted that the subject matter of this application is the release of a firearm to the applicant. The applicant was charged before the Magistrate’s Court at Milimani and as a result his firearm was confiscated during the investigations. However, the case was withdrawn by the prosecution. After the case was withdrawn, the Applicant sought the release of his firearm to no avail. He was informed that the firearm could only be released by a court order. The only outstanding issue therefore is that the said firearm is still being held by the Chief Licensing Officer Firearms Licensing Board.
6. There is no opposition to the application. The continue withholding of the said firearm does not make any legal sense. Accordingly, this Court finds that the said firearm should be forthwith released to the applicant.
7. In the upshot, the application is allowed in the following terms:i.The Officer in Charge, Chief Licensing Officer Firearms Licensing Board is hereby ordered to release the applicant’s (Abdullahi Abdille Issack) firearm serial no. B61xxxx under the Firearms License No. 00xxxx, pursuant to the order issued at Milimani Chief Magistrate’s Court Criminal Case no. E492 of 2023 on 29th October 2023 unless the applicant and/or the firearm is under investigation.File closed.
RULING DATED AND DELIVERED VIRTUALLY THIS 31STDAY OF JULY 2024________________D. KAVEDZAJUDGE