[2023] KEHC 23965 (KLR)
The court found that the criminal trial in which the motor vehicle was held as an exhibit had been concluded, and there was no evidence of ongoing investigations or forfeiture proceedings. The continued detention of the vehicle was therefore unjustified and infringed on the applicant's property rights. The court...
Source-derived case information.
- Citation
- [2023] KEHC 23965 (KLR)
- Parties
- Applicant: Muema Ndungi; Respondent: Directorate Of Criminal Investigations; Respondent: Director Of Public Prosecutions; Respondent: Kenya Revenue Authority
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E076 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Release of Property
- Outcome
- application allowed
- Judges
- DR Kavedza
- Legal Topics
- Release of Exhibits, Property Rights in Criminal Proceedings, Forfeiture of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muema Ndungi
Applicant
Directorate Of Criminal Investigations
Respondent
Director Of Public Prosecutions
Respondent
Kenya Revenue Authority
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Release of Property
Legal Issues
- 1 Whether the applicant is entitled to the release of motor vehicle registration number KCD 672Y held by the respondents as an exhibit after conclusion of the related criminal case.
- 2 Whether there are any ongoing investigations or forfeiture proceedings justifying continued detention of the vehicle.
Ratio Decidendi
The court found that the criminal trial in which the motor vehicle was held as an exhibit had been concluded, and there was no evidence of ongoing investigations or forfeiture proceedings. The continued detention of the vehicle was therefore unjustified and infringed on the applicant's property rights. The court emphasized that since the vehicle is used for business and generates income for the owner, its continued confinement in police custody would serve no purpose and would cause undue hardship. Accordingly, the court ordered the release of the vehicle to the applicant.
Court Disposition
application allowed
Orders
- Motor vehicle registration number KCD 672Y, Shackman Prime Mover Truck held by the 1st Respondent at DCI headquarters, Mazingira Complex, Kiambu Road shall be released to the applicant, Muema Ndungi.
Full Case Text
Judgment text and source record
27 paragraphs
Ndungi v Directorate of Criminal Investigations & 2 others (Miscellaneous Criminal Application E076 of 2022) [2023] KEHC 23965 (KLR) (Crim) (24 October 2023) (Ruling)
Neutral citation: [2023] KEHC 23965 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Criminal
Miscellaneous Criminal Application E076 of 2022
DR Kavedza, J
October 24, 2023
Between
Muema Ndungi
Applicant
and
Directorate Of Criminal Investigations
1st Respondent
Director Of Public Prosecutions
2nd Respondent
Kenya Revenue Authority
3rd Respondent
Ruling
1. The applicant filed the notice of motion dated March 10, 2022 seeking the release of motor vehicle registration number KCD 672Y, Shackman Prime Mover Truck held by the Respondents at DCI headquarters, Mazingira Complex, Kiambu Road. The application is supported by grounds on the face thereof and a supporting affidavit sworn by the applicant of a similar date.
2. The averments made are that he is the registered owner of the said motor vehicle jointly with K-Rep Bank (now Sidian Bank). The bank was registered to secure their interest as financiers. The motor vehicle was preserved at the 1st respondent’s premises as an exhibit pending the hearing and determination of Milimani Criminal Case no. 1334 of 2019 Republic vs Kariuki & 7 others. That the matter was concluded on December 9, 2020 and there are no ongoing investigations or reasons to retain the motor vehicle. Before its impound, the motor vehicle was used for business purposes by the applicant and its continued detention is causing him untold loss and suffering. The vehicle is wasting away. He has since cleared his loan at K-Rep (now Sidian) Bank. He urged the court to release the motor vehicle.
3. The application is unopposed as the respondents were given an opportunity to file a response but did not.
4. The applicant filed written submissions in support of the motion. He reiterated the contents of the supporting affidavit and urged the court to grant the orders sought.
5. I have considered the application, the supporting affidavit, and the applicant's written submissions. The issue for determination is whether the motor vehicle should be released.
6. The motor vehicle herein is the subject of the criminal trial for it was allegedly used in transporting uncustomed goods. However, I note that from the lower court record, the trial was concluded on December 19, 2020 with the accused persons being discharged. In addition, there is nothing from the trial court’s record to indicate that the motor vehicle in issue is subject to forfeiture proceedings.
7. Having these matters in mind, and the fact that the vehicle is also used in the transport business and generates income for the owner, will not make sense to confine the vehicle into police custody. In the circumstances, there is no reason to impinge on property rights of the owner. I am borrowing from the wisdom in the decision in Republic v John Nganga Mbugua[2014] eKLR. Accordingly, I make the following Orders;i.Motor vehicle registration number KCD 672Y, Shackman Prime Mover Truck held by the 1st Respondent at DCI headquarters, Mazingira Complex, Kiambu Road shall be released to the applicant, Muema Ndungi.
RULING DATED AND DELIVERED VIRTUALLY THIS 24TH DAY OF OCTOBER 2023. ........................D. KAVEDZAJUDGEIn the presence of: