https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9912

Pyrex East Africa Ltd & 2 others v Director of Criminal Investigations & another (Petition E005 of 2026) [2026] KEHC 9912 (KLR) (8 June 2026) (Ruling) Neutral citation: [2026] KEHC 9912 (KLR) Republic of Kenya In the High Court at Mombasa Petition E005 of 2026 WM Kagendo., J June 8, 2026 PYREX EAST AFRICA LIMITED AND EILEEN WAMBUI AND 1 OTHERS VS THE DIRECTOR OF CRIMINAL INVESTIGATIONS AND THE INSPECTOR GENERAL OF POLICE Between Pyrex East Africa Limited 1st Petitioner Eileen Wambui & another & another 2nd Petitioner and The Director of Criminal Investigations 1st Respondent The Inspector General Of Police 2nd Respondent Ruling Introduction 1.Before this Court is the Notice of Motion dated 11th May 2026 brought pursuant to Articles 10, 22, 23, 47, 48, 49, 50 and 157(11) of the Constitution of Kenya, 2010, Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and the Fair Administrative Action Act, 2015. 2.The Petitioners seek conservatory orders restraining the Respondents from arresting, detaining, processing, recommending for prosecution, arraigning, charging or otherwise interfering with their liberty in connection with containers UACU 5869397 and CAIU 3224789 and further seek orders compelling the release of the said containers pending the hearing and determination of the Petition. 3.The application is supported by the affidavit of Julius Kairianja Mureithi sworn on 11th May 2026 together with the annexures thereto. 4.On 13th May 2026, this Court issued directions requiring the Respondents to file and serve their responses to the application. The Respondents were duly served on 14th May2026. Despite service and the directions of the Court, the Respondents neither filed a replying affidavit nor any grounds of opposition. 5.Consequently, the factual depositions contained in the supporting affidavit remain wholly uncontroverted. Background 6.The 1st Petitioner is a company duly incorporated in Kenya in the year 2004 and engaged in the importation, distribution and supply of laboratory chemicals, scientific reagents, laboratory equipment and related products within Kenya and the East African region. 7.The 2nd and 3rd Petitioners are directors and shareholders of the 1st Petitioner. 8.The Petitioners contend that the 1st Petitioner has operated lawfully for over twenty years and possesses all requisite licences, permits, approvals and tax compliance certifications necessary for its business operations. 9.In the ordinary course of business, the 1st Petitioner imported laboratory chemicals through containers numbered UACU 5869397 and CAIU 3224789. 10.On 24th March 2026, officers attached to the Anti-Narcotics Unit impounded the said containers at the Port of Mombasa on allegations relating to precursor chemicals under the Narcotic Drugs and Psychotropic Substances (Control) Act. 11.The Petitioners aver that despite furnishing investigators with all importation documents, licences, invoices and approvals, the containers have remained detained. 12.It is further deponed that on 4th May 2026 officers from the Directorate of Criminal Investigations conducted a search at the Petitioners' business premises in Nairobi and seized samples, documents and related materials. 13.The Petitioners complain that despite the lapse of more than two months since the initial impoundment, no charges have been preferred and no satisfactory explanation has been provided for the continued detention of the containers. 14.The Petitioners further allege threats of arrest, verbal summonses, surveillance and interference with their business operations. 15.According to the Petitioners, the continued detention of the containers has resulted in cancellation of customer orders, disruption of supply chains and substantial financial loss. Issues For Determination 16.Having considered the pleadings, affidavit evidence and the law, the following issues arise for determination:a.Whether this Court has jurisdiction to grant the orders sought;b.Whether the Petitioners have established a basis for the grant of conservatory orders;c.Whether the continued detention of the containers is constitutionally justifiable;d.Whether the release of the containers should be ordered pending determination of the Petition; ande.What orders ought to issue. Analysis And Determination Jurisdiction 17.The jurisdiction of this Court is founded upon Articles 22 and 23 of the Constitution. 18.Article 22 grants every person the right to institute proceedings claiming that a right or fundamental freedom has been denied, violated, infringed or threatened. 19.Article 23 clothes the High Court with authority to hear and determine such claims and specifically empowers it to grant conservatory orders. 20.This Court is therefore properly seized of jurisdiction. The Applicable Principles 21.The principles governing conservatory orders are now settled. 22.In Centre for Rights Education and Awareness (CREAW) & 7 Others v Attorney General [2011] eKLR, the Court held that an applicant must demonstrate a prima facie case with a likelihood of success and show that unless the orders are granted there exists a real danger of prejudice resulting from a threatened violation of the Constitution. 23.In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, the Supreme Court observed that conservatory orders are public law remedies intended to preserve constitutional values, uphold the authority of the Court and protect the public interest pending final determination of a dispute. 24.Accordingly, the Court must consider:i.Whether a prima facie constitutional case has been established;ii.Whether there exists a real danger of prejudice;iii.Whether public interest favours intervention; andiv.Whether the orders sought are proportionate in the circumstances. Whether a Prima Facie Case Has Been Established 25.The Petitioners contend that the Respondents have misconstrued Section 4A of the Narcotic Drugs and Psychotropic Substances (Control) Act. 26.A plain reading of Section 4A demonstrates that criminal liability does not arise merely from possession, importation, transportation or supply of a precursor substance. The section contemplates proof of purpose, knowledge or reasonable grounds for believing that the substance is intended for unlawful manufacture of narcotic drugs or psychotropic substances. 27.The material presently before Court demonstrates that the 1st Petitioner is a licensed importer of laboratory chemicals and that the impugned importation was undertaken pursuant to licences, permits and approvals issued by competent authorities. 28.The Petitioners have also exhibited evidence showing longstanding commercial dealings with various reputable institutions. There was no evidence to the contrary . 29.At this interlocutory stage the Court is not called upon to determine criminal culpability. 30.Nonetheless, the uncontested evidence raises serious constitutional questions regarding the legality, proportionality and reasonableness of the Respondents' actions. 31.I am therefore satisfied that the Petitioners have established a prima facie case deserving full judicial interrogation. Whether There Exists a Real Danger of Prejudice 32.The containers were impounded on 24th March 2026. 33.By the date of this ruling they have remained under detention for over two months. 34.The Petitioners have exhibited evidence demonstrating cancellation of customer orders, disruption of business operations and substantial commercial losses. 35.The 2nd Petitioner has further exhibited medical documentation showing that he suffers from hypertension, diabetes, arthritis and prostate-related complications. 36.The Court is satisfied that continued detention of the containers and the threat of coercive action by investigative agencies present a real and continuing danger of prejudice to the Petitioners. Public Interest and Proportionality 37.The Court recognises and affirms the constitutional mandate of the Directorate of Criminal Investigations and the National Police Service in combating narcotic drugs and related offences. 38.Effective investigation of narcotics-related offences serves an important public interest. 39.Equally, constitutional rights cannot be suspended merely because investigations are underway. 40.Article 47 of the Constitution guarantees every person the right to administrative action that is lawful, reasonable, efficient and procedurally fair. 41.The record before this Court reveals that the containers were impounded on 24th March 2026 and have remained under detention ever since. 42.The Respondents were duly served with the application on 14th May 2026 and this Court had earlier issued directions on 13th May 2026 requiring the filing of responses. Despite being afforded an opportunity to respond and despite the serious allegations made in the application, the Respondents failed to file any replying affidavit, grounds of opposition or any other response explaining the factual basis for the continued detention of the containers, the nature of the investigations being undertaken or the criminal conduct allegedly attributable to the Petitioners. 43.More significantly, from 24th March 2026 to the date of this ruling, no charges have been preferred against any of the Petitioners. The Respondents have equally failed to place before this Court any material demonstrating the alleged criminality underpinning the continued detention of the containers. While investigations may legitimately take time, constitutional power must be exercised accountably and within the confines of the law. Property cannot be withheld indefinitely on the basis of unexplained suspicion. Where investigative agencies continue interfering with proprietary and commercial interests for a prolonged period, the Court is entitled to expect a cogent explanation supported by evidence. None has been forthcoming despite service and despite directions having been issued by the Court. 44.In the absence of any evidential material demonstrating either the criminal nature of the importation or the necessity for continued detention, the Court is left only with the uncontested evidence presented by the Petitioners. That evidence establishes a prima facie case that the continued detention of the containers is disproportionate, unreasonable and inconsistent with Article 47 of the Constitution. 45.Investigative agencies undoubtedly possess powers to obtain samples, preserve evidence, photograph exhibits, prepare inventories and conduct laboratory analyses. 46.However, those powers must be exercised proportionately and within constitutional limits. 47.Importantly, release of the containers does not terminate investigations. 48.The Respondents remain at liberty to continue lawful investigations and, should sufficient evidence emerge, to take appropriate action in accordance with the Constitution and applicable law. Balance of Convenience 49.The balance of convenience also favours the Petitioners. 50.The containers constitute stock-in-trade and form an integral component of the Petitioners' business operations. 51.The Petitioners have demonstrated ongoing financial losses arising from continued detention. 52.The continued detention of the containers has the effect of disrupting the Petitioners' business and exposing them to further economic loss while no explanation has been placed before the Court to justify such continued detention. 53.No explanation whatsoever was forthcoming regarding the prolonged detention of the containers. The Court finds it particularly significant that although the containers have remained detained since 24th March 2026, the Respondents have neither preferred charges nor filed any response disclosing the criminality allegedly under investigation. The Court is therefore left with only the uncontested evidence presented by the Petitioners. 54.While the Court must not usurp the constitutional mandate of investigative agencies, it is equally obligated to ensure that State power is exercised within constitutional bounds. 55.Any evidential value contained in the cargo can adequately be preserved through photographs, inventories, sampling and laboratory reports. 56.In the circumstances, the prejudice likely to be suffered by the Petitioners outweighs any prejudice likely to be suffered by the Respondents if the containers are released. 57.The Court reiterates that the orders herein are not founded upon any determination that the investigations are unlawful. Rather, they are founded upon the fact that despite service on 14th May 2026 and directions issued on 13th May 2026, the Respondents have not provided any evidential basis for the continued detention of the containers or disclosed any material demonstrating criminal conduct on the part of the Petitioners. In those circumstances, the Court must determine the application on the basis of the uncontroverted evidence placed before it. Disposition 58.Consequently, and for the foregoing reasons, the Notice of Motion dated 11th May 2026 is allowed and the Court makes the following orders: 59.A Conservatory Order is hereby issued restraining the Respondents, their agents, servants, employees or any person acting under their authority from arresting, detaining, incarcerating, arraigning or charging the Petitioners in connection with containers UACU 5869397 and CAIU 3224789 pending the hearing and determination of this Petition. 60.Notwithstanding Order No. 1 above, the Respondents shall remain at liberty to continue lawful investigations and may require the 2nd Petitioner and/or any authorised representative of the 1st Petitioner to attend before investigating officers for purposes of recording statements, clarifications, identification of documents or any other lawful investigative process. 61.Any attendance required under Order No. 2 shall be communicated through a written notice giving reasonable notice of not less than seven (7) days and the Petitioners shall be at liberty to attend accompanied by an advocate of their choice. 62.Compliance by the Petitioners with any lawful notice issued pursuant to this ruling shall not constitute a waiver of any constitutional rights asserted in the Petition. 63.The Respondents shall be at liberty, prior to release of the containers, to photograph, sample, inventory, analyse and otherwise preserve any evidential material reasonably required for purposes of investigations or any future proceedings. 64.A mandatory conservatory order is hereby issued directing the Respondents forthwith to facilitate the release, clearance and delivery of containers UACU 5869397 and CAIU 3224789 to the Petitioners and to cease any further detention thereof pending the hearing and determination of this Petition. 65.The respondents shall complete the sampling and documentation , if any, within the next 7 days from the date hereof and release the said containers UACU 5869397 and CAIU 3224789 to the Petitioners within the said 7 days and by latest 15th June 2026. 66.The Petitioners shall serve the Respondents and the Director of Public Prosecutions with the Petition, this Ruling and all supporting documents within seven (7) days from the date hereof. 67.The Respondents and the Director of Public Prosecutions shall file and serve their responses within twenty one (21) days of service. 68.The matter shall be mentioned before the Deputy Registrar for further directions and for confirmation of compliance on 30th June 2026 69.Costs of the application shall be in the cause. It is so ordered. DATED, SIGNED AND DELIVERED AT MOMBASA THIS 8TH DAY OF JUNE 2026.HON. LADY JUSTICE W. K. MICHENIJUDGEIn the Presence of:Ms Martina And Mr D Omari for the Petitioners/Applicants MR KIMEI for the RespondentsBebora – Court Assistant