https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7432

Mugendi v Mohamed & 2 others (Miscellaneous Criminal Application 02 of 2023) [2026] KEHC 7432 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7432 (KLR) Republic of Kenya In the High Court at Kajiado Miscellaneous Criminal Application 02 of 2023 CW Meoli, J May 28, 2026 Between Maximilliam Mwakisha Mugendi Applicant and Issa Mohamed Respondent and Base Commander, Namanga Police Station 1st Interested Party Office Of The Director Of Public Prosecutions 2nd Interested Party Ruling 1.The undisputed background to the motion dated 16.11.2022 (hereafter the instant motion) by Maximilliam Mwakisha Mugendi (or Mghendi), the Applicant herein, is as follows. The motor vehicle registration No. T140CTE/Trailer No. T971CSN, make IVECO was in the material time registered under the name of Shaimak Company Limited (hereafter the motor vehicle). On or about 13th December 2021 the motor vehicle was being driven by one Musa Daudi Dembo along the Kajiado-Namanga Road when it got involved in a hit-and-run traffic accident involving the Applicant's 25-year-old son, Abel Mang'ora Mwakisha, who died on the same day from the injuries he sustained. 2.The driver of the motor vehicle immediately escaped, and the police subsequently towed the motor vehicle to Namanga Police Station where it was detained as investigations into the incident continued. Culminating in proposed charges of Causing death by dangerous driving contrary to Section 46 of the Traffic Act being against the driver who remains at large. 3.About a year later in November 2022 Issa Mohamed, a Tanzanian national (hereafter the Respondent), asserting to be the owner of the motor vehicle filed under certificate of urgency what was described as a chamber summons in Criminal Miscellaneous Application No. E154 of 2022 before the subordinate court at Kajiado. Named therein as the 1st and 2nd respondents, respectively were the Base Commander, Namanga Traffic (effectively the 1st Interested Party herein) and the Office of the Director of Public Prosecutions (the 2nd Interested Party herein). 4.By the application expressed to be brought under Section 177 (a) of the Criminal Procedure Code (CPC), the Respondent was seeking release of the motor vehicle, stating that the driver had escaped after the accident and had therefore never been arraigned in court, whereas his vehicle remained detained at the police station, and risked being vandalized. The record of proceedings on 14.11.2022 in the lower court, which is before this court, shows that the application was granted by Cheloti, SRM on the same date. It would appear that despite the orders being granted, the motor vehicle was not released by police and that in a bid to enforce its orders, the subordinate court subsequently issued several summons for the 1st Interested Party to attend court. 5.On his part, the Applicant upon learning of the release order through the 1st Interested Party, moved the High Court at Nairobi via his instant motion dated 16th November 2022 in Nairobi Misc. Cr. Appln. No. E349 of 2022. The said motion which is the subject of this ruling invokes Article 165(3)(a) of the Constitution and Section 362 and 364(b) of the CPC, and seeks that the court be pleased to vacate the orders of 14.11.2022 ‘’pending the hearing and determination of this Application Inter partes’’ (sic). On grounds inter alia that the impugned orders were obtained ex parte and through non-disclosure of material facts, and that releasing the motor vehicle to the Respondent, a foreign national whose vehicle bears Tanzanian registration plates, would defeat the ends of justice and render nugatory any judgment that may be eventually be entered in favour of the estate of the deceased. 6.On 29.11.2022, Bwonong’a J (as he then was) having heard the 1st Interested Party who had attended in person, and counsel on record granted interim orders, effectively barring the release of the motor vehicle pending determination of the instant motion. Despite directions being issued, the motion was not concluded before the Judge, and after a hiatus of several months, the matter was eventually transferred to this court by Mutende J on 5.06.2023, and redesignated as Misc. Criminal Application No. 2 of 2023. 7.Unfortunately, the matter was further delayed before this court due to the fact that several documents filed electronically in Nairobi had not been transferred to this court on the Case Tracking System (CTS). Following persistent efforts by the registry, however, the missing documents were eventually retrieved to facilitate the conclusion of the matter. 8.Returning to the instant motion dated 16.11.2022, the Applicant in his supporting affidavit recounted the facts relating to the road traffic accident up until the orders given on 14.11.2022 in the lower court, as already outlined in the background. The Applicant further contended that he was never served with the Respondent’s application in the lower court seeking the release of the motor vehicle, and only became aware of the orders after being served by the 1st Interested party. According to him, the orders were issued ex parte and obtained through non-disclosure of material facts. He accused the Respondent and or his driver of reckless driving resulting in the accident which killed his son. Adding that he stood to suffer substantial loss and damage if the orders releasing the trailer were not vacated, and that the orders he sought were necessary to meet the ends of justice and to ensure fair play. 9.The Respondent swore a replying affidavit dated 13th day of January 2023, in opposition to the instant motion. Therein, the Respondent averred inter alia that the Applicant lacked the requisite locus standi to institute and maintain the instant proceedings, having failed to establish that he was the lawfully appointed personal representative and/or administrator of the estate of the deceased son under the Law of Succession Act; that the instant motion was fatally defective; that the motor vehicle did not belong to him (Respondent), and; that the driver thereof was neither his employee, agent, nor servant. In addition, he deposed that the motor vehicle was owned by Shaimak Company Limited, a private limited liability company incorporated under the laws of the Republic of Tanzania, and in that regard exhibited copies of the motor vehicle Registration Card and Certificate of Incorporation as annexures IM-1 and IM-2 respectively. 10.The Respondent contended regarding the instant motion that the Applicant had failed to demonstrate any detriment, substantial loss or damage suffered as a result of the grant of the impugned orders, or to plead with any particularity the alleged material non-disclosure. Or to demonstrate any legal, equitable or other right infringed and/or violated, or breach of duty of care, or any causal connection between the Applicant and the Respondent, whether in contract, tort or otherwise. 11.Moreover stating that, the sole relief sought in the instant motion, being an order to vacate the Orders dated 14th November 2022 in Criminal Misc. No. E154 of 2022 pending the hearing and determination of this Application inter partes, was already spent. He urged court to strike out and/or dismiss the instant motion, in the best interests of justice and fairness. 12.In addition, the Respondent filed a notice of preliminary objection (PO) dated 13th January 2023, pursuant to Order 51 Rule 14(1)(a) of the Civil Procedure Rules on the key ground that the Applicant is not the lawfully appointed personal representative and administrator of the estate of the deceased, which fact rendered these proceedings fatally defective. 13.In response to the PO, the Applicant swore an affidavit on the 13th February 2023 asserting that he had the requisite capacity to institute and maintain the instant proceedings, pursuant to the Grant of Letters of Administration Ad Litem dated 20th January 2023, a copy of which was exhibited as annexure MMM-1. Further restating that the instant motion arose from the decision of the lower court and that he has, through the estate of his deceased son, Abel Mang'ora Mwakisha, instituted a civil suit against the Respondent seeking compensation . Submissions 14.The court heard the instant motion and PO together. The gist of the Applicant’s written submissions dated 12th April 2023, is that the PO has been overtaken by events, as the Applicant subsequently obtained and filed the requisite Grant of Limited Letters of Administration Ad Litem dated 20th January 2023, curing any alleged defect in his locus standi; that the Applicant has a constitutional right under Article 258(1)(2)(a)(b) of the Constitution to institute the present proceedings on behalf of his deceased son's estate; that the instant motion invokes Article 165 of the Constitution and Sections 362 and 364 of the CPC and dismissing the application on a procedural technicality would occasion grave injustice, given the facts of the case; and that the court is enjoined by Article 159(2)(d) of the Constitution to administer justice without undue regard to procedural technicalities. 15.The Office of the Director of Public Prosecutions through prosecution counsel informed this court orally on 3.11.2025 that they would associate themselves with the submissions by the Applicant. 16.The Respondent’s written submissions dated 6th March 2023 in support of the PO were hinged on the sole ground that the Applicant lacked the necessary locus standi and capacity to institute the instant proceedings at the time of filing, based on the provisions of Section 80(2) of the Law of Succession Act. Which provides that a grant of letters of administration only takes effect from the date of the grant, whereas Section 45(1) of the said Act, prohibits intermeddling with the free property of a deceased person without express authorization by grant of representation. 17.Thus, the subsequent grant in favour of the Applicant could not cure the fatal defect in the application at the date of filing, as held by the Court of Appeal in Coast Bus Service Limited vs. Samuel Mbuvi Lai [1997] eKLR, Trouistik Union International & Another vs. Jane Mbeyu & Another [1993] eKLR, In re Estate of Barasa Kanenje Manya (Deceased) [2020] KEHC 1 (KLR), and Grace Jepkemboi Busienei vs. Daniel Ledama Ole Soya & Another [2013] eKLR. Analysis and Determination 18.The court has considered the affidavit material, the PO and submissions by the parties in respect of the instant motion. Based on the material placed before the Court, the instant motion emanated from a criminal inquiry relating to a fatal road traffic accident involving the deceased, Abel Mang’ora Mwakisha, the Applicant’s son and the motor vehicle. The present proceedings were brought pursuant to the criminal jurisdiction of this court under Articles 165 of the Constitution and Sections 362 and 364 of the CPC and arose from miscellaneous criminal proceedings in the lower court. The proceedings before this court are not civil proceedings brought by the Applicant to recover damages in respect of the death of the Applicant’s son, or for other civil relief. 19.The Applicant was evidently aggrieved by the order made in the miscellaneous criminal application in the subordinate court for the release the accident motor vehicle before its alleged driver could be traced and arraigned in court for the proposed offence of Causing death by Dangerous Driving contrary to Section 46 of the Traffic Act. As a complainant and victim pursuant to the Victim Protection Act, the Applicant was not required to obtain a grant in respect of his deceased son in order to approach the court under the provisions invoked in the instant motion. In criminal matters, a complainant or victim aggrieved with orders made in a trial is entitled in appropriate cases to approach the High Court for appropriate relief. 20.Article 165 (6) and (7) of the Constitution, provides that : -“(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but over a superior court.(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice. 21.On the other hand, section 362 of the Criminal Procedure Code provides: -“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of any such subordinate court’’. 22.In the case of Simiyu vs Nyakongo & Anor. (2023) KECA 66 (KLR), which was an appeal from a criminal revision decision in the High Court, the Court of Appeal affirmed the locus standi of a complainant in a criminal case to apply to the High Court under the foregoing provisions. In that case, an order had been made in the subordinate court acquitting an accused person under Section 202 of the CPC on criminal charges facing him. The order was made in the absence of the complainant who had not been notified of the proceedings. The said complainant, aggrieved with the outcome, approached the High Court seeking revision of the order and reinstatement of the criminal charges. The High court allowed the application by the complainant, but in turn, the aggrieved accused person filed an appeal to the Court of Appeal. 23.In the appeal, the Court of Appeal had occasion to consider at length the jurisdiction of the High Court under Article 165 of the Constitution as well as Sections 362 and 364 of the CPC. The Court of Appeal expressed itself as follows:“‘Before we deal with the issues that arise in this appeal, let us first consider whether the jurisdiction of the High Court donated under Section 362 to 367 of the CPC, can be equated to the jurisdiction prescribed under Article 165 (6) & (7) of the Constitution.Mativo, J. (as he then was) in the persuasive authority in the case of Rana Auto Selections Ltd & 2 others v Kenya Revenue Authority & another (Judicial Review Application 9 of 2020) [2021] KEHC 323 (KLR) had this to say about the purpose and application of supervisory jurisdiction of the High Court:“Supervisory jurisdiction refers to the power of superior courts of general superintendence over all subordinate courts. Through supervisory jurisdiction, superior courts aim to keep subordinate courts within their prescribed sphere, and prevent usurpation. In order to exercise such control, the power is conferred on superior courts to issue the necessary and appropriate writs. This power of superintendence is conferred by article 165 (6) of the Constitution. As was pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. v Sukumar Mukherjee 1953 SC 58, this power is to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors. This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes. As the Supreme Court of India stated unless there is grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under article 165 (6) of the Constitution to interfere.” 24.With regard to Sections 362 and 364 of the Criminal Procedure Code, the Court of Appeal proceeded to express the following view:“We now make reference to the persuasive judgment delivered by the Indian Apex Court in the case of Krishnan and Another v Krishnaveni and another {1997} 4 SCC 241. The Court extensively interpreted the relevant provisions of the Indian Criminal Procedure Code, [which are quite similar to our own CPC, Sections 362 to 364 on the revisionary power of the High Court, and made the following observations:“It is seen that exercise of the revisional power by the High Court .................... is to call for the records of any inferior Criminal Court and to examine the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court and to pass appropriate orders. ....................Section 397 gives powers to the High Court to call for the records as also suo motu power under Section 401 to exercise the revisional power on the grounds mentioned therein, i.e., to examine the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior Court, and to dispose of the revision in the manner indicated under Section 401 of the Code. The revisional power of the High Court merely conserves the power of the High Court to see that justice is done in accordance with the recognized rules of criminal jurisprudence and that its subordinates Courts do not exceed the jurisdiction or abuse the power vested in them under the Code or to prevent abuse of the process of the inferior Criminal Courts or to prevent miscarriage of justice.The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to meet out justice. ...........................The power of the High Court, therefore, is very wide. However, High Court must exercise such power sparingly and cautiously ...........................However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior Criminal Court in its juridical process or illegality of sentence or order." (Emphasis added).” 25.The Court of Appeal concluded by stating that:“Undoubtedly the High Court’s power of revision under the provisions of Sections 362 and 364 of the CPC, and indeed under the entire spectrum of Sections 362 to 367 of the CPC, are limited to finding, sentence or order recorded or passed by a subordinate court, other than an order of acquittal. The provisions are clear that the High Court in exercise of the power of revision, may call for the record which has been reported for orders, or which otherwise comes to its knowledge. The High Court’s attention could be drawn through any medium including social media. That means that in the exercise of the power of revision, the High Court could also act suo motu. It is therefore safe to say that no formal mode of approaching the Court or of drawing the Court’s attention is required or is necessary before the revision process can be invoked. The power of revision is limited to examination of the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court’’. 26.As concerns the supervisory powers donated to the High Court under Articles 165(6) and (7) the Court of Appeal had this to say:“It is worth noting that under article 165 (6) of the Constitution takes a completely different approach and confers a supervisory jurisdiction on the High Court, not only over subordinate courts but is exercised over any tribunal, person, body or authority exercising a judicial or quasi-judicial function. The only rider is that the High Court cannot exercise the supervisory power over a superior court. This jurisdiction is also not limited to criminal proceedings only but covers proceedings of civil nature. Further it is not limited to the High Court satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court, but in addition to the powers under the CPC, the Constitution has expanded the scope of the High Court’s power to “make any order, or give any direction it considers appropriate to ensure the fair administration of justice”. So that if the High Court in the exercise of its supervisory jurisdiction calls for a record and finds that there was an unfairness in the administration of justice by the subordinate court, body or tribunal the High Court may intervene even if there may be no other challenge to the proceedings, order or sentence, whichever is the case”. 27.In view of the foregoing, it is evident that the Applicant as a complainant was entitled to bring the instant motion as he has done, whether or not he was possessed of a grant of letters of administration ad litem in respect of the estate of his deceased son. The PO is without merit and must fail. That said, it cannot be contested that as framed, the sole prayer in the motion dated 16.11.2022 will by virtue of this ruling be rendered spent. 28.On the facts of this case, however that cannot be the end of the matter. The facts brought to the attention of the court via the instant motion are grave. The Applicant complains that he was not served with the application made in the subordinate court to release the motor vehicle involved in the tragic accident, which allegedly killed his son. The driver of the said vehicle remains at large, and the Applicant is apprehensive that the release of the accident vehicle will result in a failure of justice. The Respondent’s material is silent on the question of notice to the Applicant regarding the lower court application. 29.The court has looked at the proceedings in the lower court file and noted that the proceedings of 14.11.2022 were on the face of it conducted on a pre-typed template form intended for plea taking, which would ordinarily be prepared ahead of plea taking in traffic cases. The coram of the day indicates the name of the presiding magistrate Hon. B. Cheloti SRM and the prosecution counsel whose name is first recorded as Mongare before being cancelled and substituted with the name Bati. 30.There is no record in the proceedings showing that the prosecution counsel, if present, addressed the court before the court proceeded to make the following order:“Before ct (court) is an application by way of certificate of urgency seeking orders on the notice of motion for release of m/v registration No. T14OCTE/ Trailer No. T971CSN make Iveco Blue in colour held at Namanga Police Station. The ct (court) has reviewed the said application & the supporting affidavit of Issa Mohamed and hereby allows the same as prayed” (sic) 31.From the foregoing and bearing in mind that this was the first time the motion was coming up before the court, under certificate of urgency, it would appear that the order was made ex parte as the Applicant asserts. And most probably not during a court session, but in chambers as is usually the case with matters filed under certificate of urgency. Secondly, the orders granted were final in nature no future date was set for the matter. 32.The Respondent’s affidavit supporting the motion in the lower court while stating that the driver of the motor vehicle had escaped after the accident, did not disclose that a person had died in the accident. However, a court of law is obligated to hear all parties concerned before making final orders on the basis of material submitted by the party moving it. The right to a fair hearing is guaranteed by Article 50 of the Constitution. At the very least, the respondents named in the motion in the lower court ought to have been served, to appear for the hearing. 33.There is no indication on the lower court record of any such service. It was only after the lower court was approached on 28.11.2022 by counsel for the Respondent who complained that the order had not been complied with, that summons were issued to the 1st Interested Party to attend the court 30.11.2022, by which date the orders of the lower court had been stayed by the High Court at Nairobi. 34.The proceedings of 14.11.2022 were therefore irregular and the court is persuaded that in the interest of justice, this is a proper case, despite the erroneous framing of the prayer in the instant motion, for the invocation of the court’s power pursuant to Article 165 (6) and (7) of the Constitution, Section 362 and 364 of the CPC to make appropriate orders and directions to ensure the fair administration of justice. The court will therefore make the following orders:a.The order of the subordinate court made in Criminal Miscellaneous Application No. E154 of 2022, on 14.11.2022 releasing the motor vehicle registration No. T140CTE /Trailer No. T971CSN make Iveco, is hereby set aside.b.The motion in the lower court dated 11.11.2022 shall be served on the respondents named therein, as well as the Applicant herein, for a fresh and expedited inter partes hearing before a different magistrate.c.In regard to the foregoing, Miscellaneous Application No. E154 of 2022 will be mentioned before the Chief Magistrate on 10th June 2026.d.The lower court file and a copy of his ruling shall be immediately transmitted to the lower court. DELIVERED AND SIGNED ELECTRONICALLY AT KAJIADO ON THIS 28TH DAY OF MAY 2026.C. MEOLIJUDGEIn the presence of:For the State: Ms. KihumbaFor the Applicant: N/AFor the Respondent: N/AC/A: Lepatei