Republic (Through DCI) v Mulwale (Criminal Revision E1536 of 2024) [2026] KEHC 11847 (KLR) (Crim) (30 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **CRIMINAL DIVISION** **CRIMINAL REVISION NO. E1536 OF 2024** **REPUBLIC (THROUGH DCI)------------------------------------------APPLICANT** **VERSUS** **ABIUD ESONGA MULWALE----------------------------------------RESPONDENT** **RULING** 1. The applicant through an Amended Notice Of Motion brought under the provisions of Article 50 of the Constitution, and Section 362 of the criminal procedure code moved this court for the grant of the following orders;- **a. THAT** this Honorable Court be pleased to review, vary and/ or vacate orders by setting aside the orders issued by SPM R Ondieki on the 16th Day of October 2024 in criminal case number E496/2023 **b. THAT** this Court to order for the repossession of the Motor Vehicle KDC 991K, Mazda Atenza, Dark in color which is intended to be a crucial exhibit in criminal case number E496/2023. c**. THAT** the Motor Vehicle KDC 991K, Mazda Atenza, Dark in color to be kept in the custody of the DCI pending hearing and determination of the case in the trial court. **d. THAT** this Honorable Court be pleased to lift the warrant of arrest issued by HON.K. Ondieki (MR) Senior Principal Magistrate against NO 239478 IP Nickson Ngigi of the Directorate of Criminal Investigations on the 22nd of October 2024 having duly obeyed the orders for release of the subject motor vehicle albeit against his wish. **e). THAT** the Honorable Court herein calls for the record of the Trial Court in Criminal Case number E496 of 2023 Republic Versus Abiud Esonga Mulwale. **f). THAT** this court grants such other or further relief as it may deem fit and necessary in the circumstances of the application. **g). THAT** there be no orders as to the cost of this application. 1. The application was premised on the following grounds;- **a) THAT** the stay orders issued by this court on the 28th of October 2024, were overtaken by events since the Motor Vehicle KDC 991K which was held by the Applicant was released to the Respondent on the 23rd of October 2024 pursuant to a Ruling of the court issued on the 16th Day of October 2024 hence making the Criminal Revision number 1536 of 2024 nugatory. **b) THAT** investigations showed that the Motor Vehicle KDC 991K was obtained through fraudulent monies obtained from the victim and it is against the rules of natural justice to allow the Respondent to continue to enjoy the proceed of crime. **c) THAT** the Respondent took plea to a charge of Acquisition of Proceeds of Crime contrary to section 4(A) of the Proceeds of Crime and Anti money laundering act and therefore the motor vehicle ought to be held as an exhibit for purpose of intended prosecution. **d) THAT** in the event the said motor vehicle is not detained at the police station as prayed by the Applicant there is every likelihood that the respondent may anytime from now dispose the same under unclear circumstances, thereby defeating the purpose of the trial at the lower court negatively affecting the outcome of the case. **e)** **THAT** the trial court did not have jurisdiction to release the motor vehicle to the Respondent before it was produced as an Exhibit as it has been held in various cases including the case of R v Mombasa Development Limited and 4 others, being High Court at Nairobi, Criminal Revision No.112 of 1988). **f) THAT** the Registered owner of the motor vehicle in issue is Signs Dominion Outdoor Limited and not the Respondent herein. **g) THAT** in the event that the respondent is found guilty of the aforementioned charge, the legal implication is that the said vehicle will be forfeited to the state. **h) THAT** the Applicant was not a Respondent in the preliminary application dated 22nd January 2024 in the trial court where the consent judgment entered and was not accorded the opportunity to be heard. **i) THAT** the pressure put on the Investigating Officer to release the subject motor vehicle led to issuance of a warrant of arrest. The Investigating Officer had no choice but to comply despite informing the court that he was pursuing the revision of release orders. **j) THAT** there will be no prejudice occasioned to any of the parties herein in the event that the application is allowed. **APPLICANT’S SUBMISSIONS** 1. The Applicant moves this Honourable Court on the Amended Notice of Motion dated 6th November 2024, supported by the affidavit of even date sworn by I.P Nickson Ngigi, seeking review and setting aside of the orders issued in Criminal Case Number E496/2023 by Hon. R. Ondieki (SPM), delivered on 16th October 2024, which had released Motor Vehicle Registration Number KDC 991K to the Respondent. 2. The Applicant identified two issues for determination: first, whether the trial court had jurisdiction to release the motor vehicle; and second, whether the orders of this Court can reasonably preserve the vehicle pending trial. 3. On the question of jurisdiction, the Applicant submits that a court's authority over exhibits is triggered only upon their formal production in evidence, and that a trial court cannot order the disposal or release of a potential exhibit before that has occurred. In support, the Applicant cites Republic v Everlyne Wamuyu Ngumo [2016] eKLR, in which it was held that the trial court was not entitled to direct that a motor vehicle be released to the respondent to save it from wear and tear occasioned by immobilisation of the engine, since the vehicle had not been produced as an exhibit, and that it is only upon such production that a court becomes seized with jurisdiction to order its disposal. The Applicant argues this is a substantive jurisdictional requirement rather than a procedural technicality, and that the trial court's release order of 16th October 2024, though conditioned on a prohibition against transfer or sale pending conclusion of the case, nonetheless purported to exercise control over property that had not yet formally entered the court record. The Applicant further submits that the vehicle is not merely property incidental to the case but forms the very core of the charge against the Respondent, who has already pleaded to the offence of Acquisition of Proceeds of Crime contrary to Section 4(A) of the Proceeds of Crime and Anti-Money Laundering Act, the case against him being that the vehicle was acquired using fraudulent monies obtained from the complainant, Leonard Okoth Mumbu. Releasing the vehicle before its production as an exhibit, the Applicant contends, risks the destruction of the primary evidence upon which the prosecution's case rests, and it is accordingly prayed that the order be vacated in the interest of justice and due process. 4. On the second issue, the Applicant explains that its principal ground for review had been to have the vehicle detained as an exhibit, and that upon learning of the release order it approached this Court and obtained a stay on 23rd October 2024. The Applicant concedes, however, that this stay was overtaken by events, the vehicle having already been released to the Respondent on 22nd October 2024, as confirmed by an internal DCI memorandum annexed to the amended supporting affidavit as NN-2. The Applicant submits that this sequence demonstrates the urgency of the matter and vindicates its apprehension that the vehicle could be disposed of or tampered with before or during trial. The Applicant clarifies that it does not seek to permanently deprive the Respondent of his property, but seeks only that the vehicle be held in police custody pending the hearing and determination of the case, describing this as a standard and lawful order necessary to preserve the integrity of the trial process and prevent the destruction or disposal of evidence. 5. In conclusion, the Applicant prays that this Honourable Court find that the trial court erred in releasing the motor vehicle to the Respondent before its production as an exhibit, and that the release order was made without jurisdiction and in violation of the principles of natural justice. The Applicant accordingly prays that the Amended Notice of Motion dated 6th November 2024 be allowed as prayed, save for Order 4, which is spent **RESPONDENT'S WRITTEN SUBMISSIONS** **Background:** 1. The Respondent was charged with Obtaining Money by False Pretences C/S 313 of the Penal Code. His motor vehicle KDC 991K was detained by police pending trial. 2. The trial court adopted a consent order dated 5th August 2024 releasing the vehicle to the Respondent on conditions (photographs to be taken, no disposal, production on court's demand). 3. The Investigating Officer failed to comply, prompting a review application by the Applicant on 6th September 2024, which was dismissed on 16th October 2024 with a further directive to release the vehicle. The I.O. thereafter arrested the Respondent on fresh charges under the Proceeds of Crime and Anti-Money Laundering Act (POCAMLA) before eventually releasing the vehicle and filing the present application seeking review of the 16th October 2024 ruling. **Issues for Determination:** 1. Whether the application is res judicata. 2. Whether the application is merited. **On Res Judicata:** 1. The Respondent relies on ***The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others [2017] eKLR***, citing the settled elements of res judicata: the issue must have been directly and substantially in issue in the former suit, between the same parties litigating under the same title, heard and finally determined by a competent court. It was held in that case that res judicata brings finality to litigation and protects parties from repeated vexation over matters already conclusively determined, serving the public interest in swift and certain justice. 2. The Respondent submitted that the present application mirrors the earlier application of 6th September 2024 same parties, same facts, same relief sought (custody of the vehicle with police pending hearing) and was already heard and determined on 16th October 2024. The application is therefore res judicata. **On Merit:** 1. The Respondent submitted that a consent order is binding on all parties and cannot be varied except upon proof of fraud, collusion, or an agreement contrary to public policy. The respondent went on to submit that counsel has general authority to compromise on behalf of a client absent express instructions to the contrary. 2. Reliance was placed on ***Erick Gakuya Mwathaita v Maganjo Joshua Kago [2017] KEELC 1389 (KLR)*,** where it was held that an advocate's authority to record consent is presumed absent evidence of lack of authority, fraud, collusion, or breach of public policy. 3. The Respondent contended that the Applicant has not demonstrated any vitiating factor, and the trial court itself found that continued detention of the vehicle would offend the policy of the court. 4. The apprehension that the Respondent might dispose of the vehicle is characterised as speculative, given the existing NTSA caveat and the fact that the vehicle remains registered to the vendor, Signs Dominion Limited, rendering disposal by the Respondent impossible. 5. It is further submitted that the vehicle depreciated substantially during police custody, that the Respondent has since incurred costs to restore it, and that returning it to police custody pending determination of the application would serve no practical purpose, as it would ultimately revert to the Respondent regardless of outcome. **ANALYSIS AND DETERMINATION** 1. The instant application seeks the preservation of the motor vehicle on the ground that the same is to be used as an exhibit in the criminal case. The ideal position with regard to items detained by the police as exhibits is that they should be held and preserved by the investigation officer until such time that they are produced as exhibits in the case. 2. However, situations may arise where the item held is in the nature of an item that can easily waste in the hands of the investigating officer or completely be lost if the same is kept for a long period awaiting production. 3. Items that are perishable or that highly depreciate while in the custody of an investiagator ought to be produced in any proceedings at the earliest opportunity so that they are quickly disposed of by way of court orders. 4. It also follows that, dangerous exhibits such as explosive material or hazardous wastes are not to be kept for lengthy periods since they endanger the safety of everyone thus if the cannot be produced immediately, the evidence must be preserved in a form that is capable of reception by the court without compromising the value and quality of the evidence. 5. The court seized of the matter must however be brought on board before the items are disposed of to preserve the integrity of the evidence. 6. The evidence may then be preserved in the form of photographs or video footages and accompanying certificates of destruction that form part of the evidence at the trial. 7. In Kajiado **Revision No.8 of 2017 Director of Public Prosecution vs. Marias Pakine Tenkewa t/a Naresho Bar Restaurant** the court held that the preservation and safety of exhibits is an integral part of serving justice and fair play; that the gaps in the prosecution case must be resolved in favor of the appellant as was held in **Pius** **Arap Maina vs. Republic (2013) eKLR.** 8. It should therefore not be left at the discretion of the investigating officer to dispose of exhibits without express authority of the court because chain of custody issues may arise or the most critical pieces of evidence might just be lost thereby compromising the case. The gaps that eventually emerge from mishandling of exhibits are ordinarily to be resolved in favor of the accused since the burden of proof is always on the prosecution in criminal cases. See **Woolmington vs DPP {1935} AC 462**. 9. The motor vehicle in this matter though an exhibit was released pursuant to a court order to the respondent. The court having authorized the release of the exhibit fully aware of the proceedings, there is a rebuttable presumption that on a balance of probabilities that the court was satisfied that the exhibit would be secure in the hands of the party to whom it was released. 10. The applicant in order to succeed in their quest have the motor vehicle returned to the investigating officer ought to have demonstrated to this court that the exhibit is likely to disappear or altered by the respondent in a matter that would whittle down the evidence that they intend to lead in the trial. That was not done. 11. In **Siddique w/o Arshad Sharif & 2 others v Attorney General of Kenya & 4 others (Constitutional Petition E009 of 2023) [2023] KEHC 27311 (KLR) (1 December 2023) (Ruling)** the courtheld: ***“ Having given this matter consideration, it is my view that the Petitioners have not demonstrated that the documents, files, reports, letters and other correspondences relating to this matter and forming the investigative materials gathered by the investigators are not being preserved. I want to believe that even though the 4th Respondent claims to have handed over all the materials they gathered in their investigations to the 2nd Respondent, they must have retained their records. It is my belief, after careful consideration of this application, that the Petitioners will not be prejudiced, other than having to wait a bit longer for the issues they are raising to be addressed, if the orders they are seeking are not granted. I believe that the evidence gathered is in safe hands and will be kept safe as required under the law until this court is able to determine the Petition.”*** 1. This court adopts a similar position and holds that the subject motor vehicle should be preserved by the respondent and made available to the court as and when required for purposes of the trial. 2. The respondent having sought release of the exhibit to himself before production shoulders the burden of ensuring that the exhibit is safe and any deviation from the order of release to them by the magistrate would attract severe legal consequences to the respondent. 3. In a nutshell this court does not find any irregularity, illegality or impropriety in the order releasing the motor vehicle to the respondent thus it shall remain in his hands and he shall secure it throughout the period of the trial until such further or other orders that the court shall issue. 4. Before I pen off, a word of caution needs to go to the investigators and prosecutors that to avoid situations such as this, once an accused person takes plea in a matter and there is danger of dissipation of evidence, the proper course is to ensure that they secure priority hearing dates for purposes of producing the exhibits and obtaining orders of preservation or disposal as the case may be. The practice will ensure that the interests of the administration of justice are protected as envisaged under Article 157 (11) and the individual’s right to property under Article 40 are respected and upheld. 5. The application is thus dismissed. 6. It is so ordered. **DATED, SIGNED** and **DELIVERED VIRTUALLY** at **NAIROBI** this **30th** day of **JULY, 2026.** 1. **M. MUTETI** **JUDGE** **In the presence of:** Court Assistant: Habiba Habiba: Court Assistant Mogere for Applicant Wanga for Respondent