https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10696

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MARALAL(SUB-REGISTRY)** **CRIMINAL REVISION NO E001 OF 2026** **ODPP……………………..APPLICANT/ PETITIONER** **-VERSUS-** **SAMSON KARANJA………….…….1ST RESPONDENT** **FRANCIS MAINA………..………..2ND RESPONDENT** **FRANCIS KARANJA………..…….3RD RESPONDENT** **RULING** 1. By a letter dated 04/03/2026, the Office of the Director of Prosecutions (ODPP), Applicant, seeks revision of the order issued by Hon. Temba Sitati, SPM, releasing motor-vehicle registration no. KCG 028Y Isuzu lorry an exhibit in Maralal SP Criminal Case Number E053 of 2025. 2. It is stated that the subject motor-vehicle was a principal instrument in the commission of the offence and is subject to forfeiture proceedings upon completion of trial. And, it was released to a person who was neither the registered owner nor the insured. That the court released the motor-vehicle before it was produced before the court as an exhibit hence the court dealt with exhibits whose custody had not passed to it, which it had no benefit of seeing. 3. That the order was prejudicial to the prosecution’s case as the exhibit that has been put in private hands subjects the exhibit to interference and possible manipulation. And, personal commercial interest by private individuals should never supersede public interest and the need for preservation of exhibit and proper administration of criminal law and due process. 4. In response thereto through an affidavit deposed by Samson Rukahu Karanja, the 1st Respondent it is deponed that orders issued were lawful, proper and that the learned trial Magistrate exercised judicial discretion upon consideration of all facts and circumstances as presented before the court. 5. That he is a beneficial owner of the subject motor vehicle having acquired the motor-vehicle through lawful transactions. That the motor-vehicle remained detained for an unreasonable period thereby occasioning sustained financial and economic operational loss; continued detention of the motor vehicle was punitive in nature and unjustifiably interfered with his property rights and legitimate economic interests. 6. That the trial court issued an inhibition order against the title of the motor-vehicle restraining him, agents, servants and/or any person acting under his instructions from transferring, selling, charging, disposing of or otherwise dealing with the motor-vehicle pending hearing and determination of the criminal proceedings. 7. And, that the investigating officer was directed to register an inhibition with the National Transport and Safety Authority (NTSA). 8. Further, parties filed submissions in that regard. It is urged by the Applicant that stringent conditions must be met before an exhibit is released. Reliance is placed on the Case of ***Republic v Everlyne Wamuyu Ngumo (2016) KEHC 3584 (KLR)*** where the court held that: “***I find that the trial court was not entitled to direct that the motor vehicle be released to the respondent/accused in order as that court put it “to save it from the wear and tear due to immobilization of the engine.” The reason for this is that the motor vehicle had not been produced as an exhibit in court. It is only when some property including a motor vehicle have been produced as an exhibit in court that that court is then seized with the jurisdiction to order for its disposal”.*** 1. Also cited is the Case of ***Republic Mombasa Development Limited and 4 others, Criminal Revision No. 112 of 1988 (Nbi)*** where the court held that: ***“It is now trite that in considering whether to release an exhibit, a trial court should satisfy itself that;*** 1. ***The person seeking its release has proved that he/she is the owner.*** 2. ***The person seeking its release has proved that he/she was not involved in the offences before court,*** 3. ***That the exhibits is not liable to forfeiture.”*** 4. That the misdirection was that the release order was made before the motor-vehicle was produced by the trial court and the motor-vehicle was subject to forfeiture. 5. In response thereto the 1st Respondent submits that the Applicant has failed to demonstrate any illegality, procedural impropriety or miscarriage of justice arising from the orders issued. Reliance is placed on the Case of ***Republic v James Kiarie Mutungi (2017***) eKLR where the Court held that: ***“revisionary powers should only be invoked where there exists glaring illegality, incorrectness or impropriety and not merely because a party is dissatisfied with a lawful exercise of discretion"*** 1. That the trial Magistrate exercised judicial discretion having considered evidence presented and imposed safeguards aimed at attaining substantive justice and proportionality and no actual prejudice will be suffered by the Applicant; And, the argument that the release jeopardizes forfeiture proceedings is premature since forfeiture can only arise upon lawful determination of the substantive criminal proceedings. 2. Lastly that public interest must be balanced with constitutional safeguards protecting property rights, fair administrative action and presumptions of innocence. 3. I have considered the application, affidavits in support and opposition, and rival arguments. 4. This Court has been approached in its Revisionary Jurisdiction which emanates from the constitution and is provided by Article 165(6) & (7) thus: **(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 not 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.** 1. Further, it is regulated by Section 362 of the Criminal Procedure which provides thus: ***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.*** 1. Section 364 of the CPC provides thus: ***(1) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—*** ***(a) ….*** ***(b) in the case of any other order other than an order of acquittal, alter or reverse the order.*** 1. In ***Joseph Nduvi Mbuvi V Republic (2019) eKLR*** it was stated: ***“In other words, the High Court’s revisionary jurisdiction includes ensuring that where the proceeding in the lower court has been legally derailed, necessary directions are given to bring the same back on track so that the trial proceeds towards its intended destination without hitches. Not only is the jurisdiction exercisable where the subordinate court has made a finding, sentence or order but goes on to state that it is also exercisable to determine the regularity of any proceedings of any such subordinate court as well.”*** 1. I am also guided by the Case of ***Director of Public Prosecutions v Peter Aguko & 35 others (2020), w***here it was emphasized that the High Court Supervisory jurisdiction could not be exercised in a manner that unnecessarily interferes with ongoing criminal proceedings absent of clear illegality, impropriety is miscarriage of justice. 2. In the instant matter, the court is faulted for releasing a principal instrument in the commission of the offence subject to forfeiture upon completion of trial to an individual without proof of ownership rights before it was produced in court as an exhibit. 3. To satisfy myself of the order made by the trial court I called for the lower court record. Notably the ruling is titled: **“Amended Ruling**”. The amendment was made pursuant to **Order** **45 of the Civil Procedures Rules**. In that regard the court stated thus: ***“Order 45 Of the Civil Procedure Rules which is hereby done. The effect, therefore is that this court makes the finding that the applicant has proved that he is a beneficial owner of the vehicle after taking out a loan of Kshs 2,043,791 and using it to pay the consideration for the truck. The other findings surrounding the circumstances of movements of the vehicle remain the same.*** ***Therefore, in order to comply with section 105 and 110 above and in order not to prejudice the outcome of the final investigatory and intelligence evidence yet to be adduced before the court the court having received satisfactory evidence of beneficial ownership allows the release to the applicant the motor vehicle in question on the following conditions;*** ***The consequence is that;*** 1. ***The court grants a temporary release of the vehicle to the applicant herein as a beneficial owner.*** 2. ***The court issues an inhibition order on title of the vehicle to restrain the applicant or his agents from transferring or selling or disposing of the vehicle pending the hearing and determination of the main criminal trial.*** 3. ***The investigation officer shall register this inhibition order with the National Transport and Safety Authority before releasing the lorry to the applicant herein.*** 4. ***The investigation officer shall retain photographs of the vehicle in the meantime.*** 5. ***That upon receiving the vehicle the applicant shall produce it in court during the forfeiture proceedings”.*** 6. Being an amended ruling, this court went further to interrogate the initial ruling which reads thus: ***“…Therefore, in order to comply with section 105 and 110 (above) and in order not to prejudice the outcome of the final investigatory and intelligence evidence yet to be adduced before the court, the court having received less than satisfactory evidence of beneficial ownership declines to release temporarily to the applicant the motor vehicle in question and dismisses the application with costs. The vehicle shall remain in police custody until the forfeiture hearing. It is so ordered. Right of appeal is 14 days.”*** 1. It is explicit that the Civil Procedures Rules govern reviews and orders in civil proceedings but not criminal cases. As afore stated revision in criminal cases are regulated by the Criminal Procedure Code afore pointed out. Once a trial court makes an order it becomes functus officio. In ***Raila Odinga & 2 Others V Independent Electoral & Boundaries Commission & 3 Others (2013) eKLR,*** it was held that: ***“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.… The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.”*** 1. The court cannot resort to use of Order 45 of the Civil Procedure Rules to review its own decision in a criminal matter. The correct procedure would have been to refer the matter to a superior court to correct the irregularity. 2. The impugned ruling dated 28/01/2026 amended the ruling dated 26/01/2026. Photographs of the lorry and consignment were marked for identification 04/11/2025, and at the point of being released the motor-vehicle had not been provided in the court as an exhibit. 3. In ***Des Raj Sharma v Reginam (1953) EACA*** 310, it was held that: ***“there is a distinction between exhibits and articles marked for identification; and that the term “exhibit” should be confined to articles which have been formally proved and admitted in evidence. In the Nigerian case of Michael Hausa -V- The State (1994) 7-8 SCNJ 144, it was held that if a document is not admitted in evidence but is marked for identification only, then it is not part of the evidence that is properly before the trial judge and the judge cannot use the document as evidence.”*** 1. In ***Republic v Cape Van International Ltd & Another (2004) KEHC 1431 (KLR)*** it was held that: “***In any event, section 177 of the Criminal Procedure Code can only be invoked after it has been established beyond any reasonable doubt that the goods in question belong to the applicants. In the instant case, the said learned magistrate could not possibly be in a position to make a finding as to the ownership of the said goods as the criminal trial has yet to commence. It has been stated that there is a rival claimant of the said goods. In the absence of a positive determination by the trial Court in the criminal case as to the true owners of the stolen goods, the provisions of section 177 of the Criminal Procedure Code may not be invoked. The said learned magistrate thus fell into further error in law............The said learned magistrate did not have jurisdiction to entertain the said application and order the release of goods which were not in possession of the Court or under its control. A Magistrate’s Court can only make an order restituting the property to a proved owner under the provisions of section 177 of the Criminal Procedure Code when the said goods have been produced in evidence before court. Before the said goods or property is produced in court as exhibits in evidence, a Magistrate Court cannot make an order in a criminal proceeding for the release of such goods."*** 1. In ***Director of Public Prosecutions v Ibrahim Asala Mahangwa & 2 Others (2022) KEHC 928 (KLR***) the court appreciated that the court had to balance the prosecutions interest in an order for release of a motor-vehicle which allegedly carried narcotic drugs in effective prosecution of the crime and the remanding of forfeiture as a deterrent on one hand and the proprietary interest of the accused, the owner of the motor-vehicle. It further noted that: ***“The practice of photographing a motor-vehicle which is an exhibit in a criminal case or civil and release thereafter to the owner of the motor-vehicle as observed by Muchemi J in Rv John Ng’ang’a Mbugua (2014) is correct in the circumstances…”*** 1. The court found the order irregular hence ordered that: ***“The order for the release of the motor-vehicle KCH 845T made on 28/02/2022 by the court is revised”.*** 1. In the instant matter as afore pointed out, any revision of an order by a magistrate court resides with the High Court. Therefore, the court did not possess inherent jurisdiction to review and reverse and/or correct the record. The order made by the court was improper and incorrect. Therefore, in invoking the provision of Section 364(1)(a) of the Criminal Procedure Code, I call to this court the ***“Amended Ruling”*** of the trial court dated 28/01/2026 which I quash and set aside. 2. It is so ordered. **Dated, signed and delivered on 10th July, 2026** **HON L. MUTENDE** **JUDGE** **……………………** **L.N. MUTENDE** **JUDGE**