https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11700

Munoro v Kenya Revenue Authority & another (Criminal Miscellaneous Application E131 of 2025) [2026] KEHC 11700 (KLR) (Crim) (23 June 2026) (Ruling) Neutral citation: [2026] KEHC 11700 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Criminal Criminal Miscellaneous Application E131 of 2025 AM Muteti, J June 23, 2026 Between Kennedy Mutwiri Munoro Appellant and Kenya Revenue Authority 1st Respondent Directorate of Criminal Investigation 2nd Respondent Ruling 1.The applicant filed notice of motion dated 26/3/2025 seeking orders that:-The court be pleased to order or direct the Respondents through the investigating officer in Milimani Criminal case no. 488 of 2018 Republic-Vs- Kennedy Mutwiri Munoru or through authorized officer to forthwith release motor vehicle registration chassis number ACU300078278 Toyota Harrier currently held at the New Nairobi area Directorate of Criminal Investigations yard. 2.The application is brought under the provisions of Articles 40 and 165(3) (a) of the Constitution and the grounds on the face of the application as follows:- 3.That the applicant was charged with Interfering with Goods subject to customs control contrary to Section 203 of the East Africa Community Customs Management Act. The case related to the subject vehicle which was impounded and detained at Nairobi area DCI yard along Ngong road where it is still held. 4.The applicant was acquitted on 10/1/2025 and there is no appeal against his acquittal. 5.That the vehicle was not an exhibit in the criminal trial and only photographs and documents were produced before the subordinate court. 6.Further, that the complainant sued the applicant in Milimani CMCC NO 7187 Of 2018 James Muriithi Mutuma –vs- Kennedy Mutwiri Munoru & Another for refund of Ksh 2,150,000/= paid to the applicant for purchase of the subject vehicle. 7.The court entered judgment in favor of the complainant and awarded damages for breach of contract in the sum of Ksh 200,000/=. 8.The applicant urges that the complainant was compensated in the civil suit and there is no legal basis for the police to hold the subject vehicle. 9.Further, that the complainant has already been paid damages while the vehicle has depreciated over the period it has been lying at the police yard. It is in the interests of justice it be released forthwith to enable him recoup value of what is left. 10.That the applicant will be condemned to double jeopardy after he compensated the complainant for the full value of the vehicle which has lost value. 11.The applicant filed his affidavit in support of the application and deponed that:a)James Muriithi Mutuma engaged him to source and import the vehicle on his behalf. That an issue arose regarding the vehicle’s registration number which lead to the criminal case. The respondent impounded the vehicle and detained it at New Nairobi area DCI yard where it remains to date.b)That he was acquitted under Section 215 of the Criminal Procedure Code.c)That the court did not make orders on how the vehicle should be dealt with.d)Further that he filed an application in the civil suit to settle the decree and refund the complainant in installments, the application was scheduled for ruling on 26/6/2025.e)That the complainant has since been compensated the full value of the vehicle. 12.The applicant attached the judgement in Millimani Civil Case No 7187/2018 by Honourable Shikwe where judgment was entered for the sum of Ksh 2,350,000/= against the accused company . 13.The judgement of the criminal trial was also attached to the affidavit as proof that the applicant was tried and acquitted of the charges. 14.The respondent contested this court’s jurisdiction over the matter and submitted the matter ought to have been brought under judicial review. 15.The applicant on the other hand submitted that the matter emanated from a criminal trial and that this court has jurisdiction to deal with the matter since the detention of the motor vehicle was on account of a criminal investigation prosecution. 16.The applicant filed written submissions through the firm of EAM Advocates LLP and frames issue for determination as to whether the court should release the vehicle to the applicant. 17.He argued that further detention and forfeiture of the vehicle would subject him to double jeopardy since he had paid the full value of the vehicle to the complainant and the vehicle has wasted away and /or depreciated in the period it is held at the Directorate of Criminal Investigations yard. 18.The applicant pleaded with this court to have the vehicle released to him so that so that he could recoup the remaining value. 19.He further urged that Section 210 of the East Africa Customs Community Customs Management Act should be read with other provisions of the Act. Section 214 provides that the thing / property seized by prosecution is to be detained until determination of the prosecution while Section 215 provides for release of the thing to the person from whom it was seized or to the owner upon acquittal. The applicant referred to the case of Kenya Revenue Authority -Vs- Josiah Thiongo (2022) eklr 20.The applicant submitted that forfeiture of the vehicle would be unfair and prejudicial to him while the respondent will not be prejudiced if the vehicle is released. The applicant asserted that the commissioner of customs would still be at liberty to assess and collect any duty payable before the vehicle is restored to him as provided under Section 213 (5) of EACCMA 21.Lastly, the applicant contended that the importer has never been identified or recorded a statement or testified in the criminal trial and that the vehicle was imported through an intermediary on behalf of the complainant. 22.The 1st & 2nd respondents filed written submissions on 24/9/2025 and framed issues for determination as: whether the applicant proved ownership of the vehicle, and secondly, whether the vehicle is liable for forfeiture and the applicant’s compliance with legal requirements. 23.The respondents submitted that vehicle was imported for transit and that it was destined for South Sudan through customs entry no 2016MSA6061363. 24.The exporter was listed as Yokohama Shikitasaiwai and the importer was Dr Majok Kuol Mading who is based in Juba South. 25.The Respondents contended that the release of the vehicle would deprive the importer his right of ownership and is also contrary to statute. 26.The respondents posited that the applicant has not presented customs importation documents to show that he imported the vehicle and there has been no explanation of change of ownership from Dr Majok Kuol Mading to the applicant’s name. 27.Further, that documents such as commercial invoice, bill of lading, receipt of shipment and ownership transfer have not been produced in proof of his ownership. 28.The burden of proof is on the applicant under Sections 107 and 109 of the Evidence to prove the facts he relies on. 29.On forfeiture, it was submitted that the vehicle was diverted on transit and was converted to home use irregularly. 30.The respondents further asserted that the applicant sold it to the complainant and the vehicle’s particulars in the integrated system of NTSA are tainted with irregular registration and have chasis numbers of different vehicles. 31.Further, that import duty was not paid and the vehicle was also dealt with contrary to laws of customs and therefore falls within the description of uncustomed goods under Section 2 of EACCMA .Uncustomed goods are liable to forfeiture under Section 210 of the Act. 32.On compliance with registration, the respondent contended that the vehicle is not registered in Kenya and it should be regularized. 33.That the applicant seeks to circumvent registration regulations on imports such as supporting documents from country of origin, certificate of roadworthiness Kenya Bureau of Standards and inspection certificate of road worthiness and conformity which have to be availed. 34.Lastly, that the applicant does not deserve orders in the court of equity. That although he was acquitted, the applicant’s conduct and action demonstrate knowledge and complicity with fraud. The respondents further contended that the applicant engaged in wrongdoing with the subject vehicle should therefore not expect the court’s help . 35.Reference was made to the case of Caliph Properties Ltd –Vs- Barbel Sharma & Another (2015) eklr where the court held inter alia that he who comes to equity must come with clean hands and must do equity. The applicant must substantially fulfill his obligation under the law before insisting on his rights. Analysis & Determination. 36.Article 40 of the Constitution provides for the right to property with its limitation under Article 24.Article 40 provides as follows :-Protection of right to property.1.Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property 37.Article 24 of the Constitution on the other hand provides that:-1.A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—a.the nature of the right or fundamental freedom;b.the importance of the purpose of the limitation;c.the nature and extent of the limitation;d.the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; ande.the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose. 38.The provisions are express that the right to property should be upheld protected and not infringed. The state has obligation to promote these rights and any limitation should be within the provisions of Article 24 of the Constitution. 39.The respondents urged this court to decline jurisdiction over this matter arguing that the application ought to have been filed before the Judicial Review division of this court. 40.Jurisdiction is everything and once a party raises it, it should be determined in limine. In order to determine whether this court has jurisdiction of this matter, it would be necessary to contextualize the issue. 41.The facts that emerged from the trial court judgement in the criminal case were that the motor vehicle type Toyota Harrier chassis No. ACU30-008278 was imported and was to be sold to James Mureithi Mutuma. 42.The Motor vehicle became the subject matter in the charge sheet brought in criminal case No 488 of 2018 where the applicant was charged with the offence of: Interfering with Goods subject to Customs Control contrary to Section 203 of the East Africa Community Customs Management Act. 43.The particulars of the charges were that : On 15/2/2017 at unknown place within the republic jointly with others not before court interfered with goods subject to customs control converting for use in Kenya one unit used in Toyota Harrier motor vehicle chassis No. ACU30-008278 on transit to south Sudan vide customs entry 2016msa6061692 without authority of the commissioner of customs and border control and payment of requisite duties amounting to Ksh 664 421 /= 44.The accused /applicant herein acted as a middle man in the agreement. The vehicle was first registered as motor vehicle registration number. KCH 002Y and later registered as No. KCK 435R while Simon Wachira Muruiki was listed as one of the first owners of KCK 435R. 45.The court found that the evidence did not link the accused to fraudulent registration or interference. The vehicle was also the subject matter in Criminal Case No 1461/2016 vehicle registration number KCH 002Y was subject to investigations and Elijah Ojuma Girimani was convicted. Whether the court has jurisdiction. 46.The application for release of the subject vehicle is brought under Article 165(3) (a) of the Constitution which provides that:-“Subject to clause (5), the High Court shall have—a.unlimited original jurisdiction in criminal and civil matters; 47.The trial court has the power to deal with properties seized pursuant to a criminal investigation and that such properties once produced as exhibits may be dealt with in accordance with Section 121 of the Criminal Procedure code. 48.The Section Provides;-121.Detention of property seized(1)When anything is so seized and brought before a court, it may be detained until the conclusion of the case or the investigation, reasonable care being taken for its preservation.(2)If an appeal is made, or if a person is committed for trial, the court may order it to be further detained for the purpose of the appeal or the trial.(3)If no appeal is made, or if no person is committed for trial, the court shall direct the thing to be restored to the person from whom it was taken, unless the court sees fit or is authorized or required by law to dispose of it otherwise. original jurisdiction and discretion over items and property and such inventory that is related to a criminal charge before it. 49.The trial court would therefore be in a position to make orders regarding the disposal of those items produced before it as exhibits and not any other property held by the police. 50.The effect of this therefore is that any other items seized by the investigating officers and are not produced before the court remain properties that are subject to release by the police through their administrative procedures and such administrative procedures of the police must be in line with the provisions of Article 47 of the Constitution on Fair Administrative Action. 51.The High Court would thus be within the law in intervening in the exercise of its powers under Articles 23 and 165 of the Constitution to safeguard the rights of the affected individual. 52.The property having been detained in the course of investigation, the High Court Criminal Division would have jurisdiction to deal with the matter. 53.The court under Article 23 would be in position to issue any of the following orders;-a.a declaration of rights;b.an injunction;c.a conservatory order;d.a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24 ;e.an order for compensation; andf.an order for judicial review.It would therefore be unnecessary for this court to decline jurisdiction since it can make the orders that the Judicial Review Division of the High Court would issue if it were to hear the matter. The High Court is the High Court and its original and unlimited jurisdiction over any matter is exercisable by a judge of any Division but for good order the Divisions defer to each other’s docket where necessary.The Motor vehicle in this matter was seized pursuant to the investigations conducted by the respondents.This court is thus within its power and authority to entertain this application and make appropriate orders. 54.Section 177 of the Criminal Procedure Code refers to the courts power to release property that has been taken from the suspect at the time of arrest. The court has additional power to release seized property during trial, at judgement and after appeal. 55.Section 177 of the Criminal Procedure Code provides that:-Property found on accused person“Where, upon the apprehension of a person charged with an offence, any property is taken from him, the court before which he is charged may order—a.that the property or a part thereof be restored to the person who appears to the court to be entitled thereto, and, if he be the person charged, that it be restored either to him or to such other person as he may direct; orb.that the property or a part thereof be applied to the payment of any fine or any costs or compensation directed to be paid by the person charged.” 56.The power of the trial court under Section 177 of the CPC Grievance or appeals lie in the High court’s appellate or revisionary and/or supervisory jurisdiction under Article 165 (6) and Section 362 on revision and Section 365 on appeals. 57.Section 177 of the Criminal Procedure Code and provisions under EACCMA unfovehicle was not produced in evidence and therefore it was not under the custody of the court as an exhibit. 58.Further, Section 215 of EACCMA gives power to order release of seized goods after an acquitted but this was also not invoked. 59.From the facts given by parties, the prosecution relied on photographs and documents. It is difficult to understand why the prosecution chose to rely on photographic evidence yet they had the motor vehicle in their custody. 60.The respondents did not explain that lapse at the hearing of the instant application. 61.Section 215 of EACCMA gave the trial court mandate to release seized property after an acquittal. The trial court having failed to make that order, left the applicant with no option but to approach this court for appropriate relief. 62.The High court Criminal division exercises supervisory jurisdiction over subordinate courts and in its broader power to uphold the Bill of rights may make orders directed to anybody or authority under the Constitution such as the respondents under Article 23 of the constitution. 63.The issue before the court therefore is whether the respondents having preferred charges against the applicant, and those charges having failed and the applicant acquitted, is there any legitimate reason for the continued detention of the subject motor vehicle. 64.The respondents cannot undo what the criminal court has already decided otherwise than by way of an appeal. 65.The respondents made no mention of any such appeal pending thus their continued holding of the motor vehicle is contrary to the law the criminal proceedings having resulted in an acquittal. The respondents in the discharge of their respective mandate are subject to the Constitution and the Statutory law governing their operations. 66.The respect for the fundamental rights and freedoms of every individual is a duty of any one vested with authority by the Constitution. The exercise of state power must never be on the basis of person whims and caprice. 67.The right to property under Article 40 should only be limited in accordance with the law and nothing else. 68.In Republic v Inspector General of Police Exparte Kennedy Ngeru Irungu [2016] KEHC 2895 (KLR) where the Court observed thus:“39.In the instant case, it is clear in the absence of any affidavit justifying impounding of the subject motor vehicle KAT 165M, I find that the actions by the police at Kiamumbi police station are not only illegal, irregular and irrational and without any fairness or at all. It was arbitrary and without justification.’’ 69.The respondents’ explanation for the continued holding of the motor vehicle is that there is need for regularization of the process by production of the requisite documents of ownership and payment of duty. 70.The applicant made it clear to this court that he is willing to meet any duty that is still due and owing to the respondents. 71.Accordingly, the orders that this court shall make are as follows;-a)A declaration be and is hereby issued declaring the continued detention of the motor vehicle by the respondent as unlawful and unconstitutional following the acquittal of the applicant in Milimani Chief Magistrate’s Court Criminal Case No.484 of 2018.b)That the Motor vehicle Chassis Number ACU30-0078278, Toyota Harrier held in connection with the aforementioned matter shall be released forthwith to the applicant upon regularizing the registration of the motor vehicle and payment of any duty due and owing to the 1st Respondent. 72.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 23RD DAY OF JUNE 2026.A. M. MUTETIJUDGEIn the presence of:Court Assistant: HabibaMuriungi for ApplicantMogere h/b Ms Opiyo for Respondent