[2019] KEHC 5770 (KLR)
The court held that while the police are entitled to retain items that are to be produced as exhibits in the pending criminal trial, or those that are subject to ongoing investigations to determine if they are proceeds of crime or were procured in furtherance of criminal activities, they must act within a reasonable...
Source-derived case information.
- Citation
- [2019] KEHC 5770 (KLR)
- Parties
- Applicant: Republic; Respondent: Arafat Ikumu Omar
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 887 of 2018
- Procedural Posture
- Criminal Revision / Ruling on Application to Release Seized Property Pending Trial
- Outcome
- Application partially allowed; conditional retention and possible release of seized property ordered.
- Judges
- LK Kimaru
- Legal Topics
- Seizure of Property, Release of Exhibits, Pretrial Procedure, Proceeds of Crime
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
Arafat Ikumu Omar
Respondent
Procedural Posture
Criminal Revision / Ruling on Application to Release Seized Property Pending Trial
Legal Issues
- 1 Whether the police are entitled to continue holding items seized from the Respondent that are not directly related to the charges against him.
- 2 Whether the trial court was correct in ordering the release of items not subject to the charges.
- 3 What procedure should be followed regarding items under further investigation for possible criminal connection.
Ratio Decidendi
The court held that while the police are entitled to retain items that are to be produced as exhibits in the pending criminal trial, or those that are subject to ongoing investigations to determine if they are proceeds of crime or were procured in furtherance of criminal activities, they must act within a reasonable timeframe. The Applicant is required to prepare an inventory of all seized items, specifying which items relate to which charges. For items under further investigation, the police are granted thirty days to conclude investigations and determine whether to prefer additional charges. If no nexus is established between certain items and the alleged offences within that period,...
Court Disposition
Application partially allowed; conditional retention and possible release of seized property ordered.
Orders
- Applicant to prepare an inventory of all seized items, indicating which items relate to which charges.
- Police granted thirty (30) days to conclude investigations regarding items not directly linked to current charges and decide on further charges.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CRIMINAL DIVISION
CRIMINAL REVISION NO.887 OF 2018
REPUBLIC................................APPLICANT
VERSUS
A I O.......................................RESPONDENT
RULING
The Respondent, Arafat Ikumu Omar is facing a raft of charges before the Chief Magistrate’s Court at Milimani. They range fromforgery contrary to Section 350 of the Penal Code to being found in possession of a firearm without a firearm certificate contrary to Section 4(1) of the Firearm Act. The Respondent pleaded not guilty to the charges. Trial is yet to commence. In the course of investigations, the police seized several properties that were found in the Respondent’s residence. They include several motor vehicles and documents. They also recovered cash in various currencies. Some are alleged to be fake. Some of the recovered items are subject to the charges brought against the Respondent. Some of the items, it is alleged by the Applicant, are subject to further investigations to determine whether they are proceeds of crime or were procured in furtherance of criminal activities. The Applicant has continued to detain the said properties pending respectively, production in court and conclusion of investigations. The Respondent did not agree with the position taken by the Applicant. He did not challenge the items that were being held by the police and were the subject of the charges. Indeed, he does not object to the Applicant holding the said items with a view to producing them as exhibits in evidence during trial. Where he has an issue are items that the Applicant is holding which he claims have no connection whatsoever with the charges that were laid against him. The Respondent was of the opinion that there was no legal basis upon which the police could continue to hold the said items which were completely unrelated with the charges that were laid against him. The Respondent was not persuaded that the police were holding the said items with a view to aiding its further investigations. It was in that regard that the Respondent successfully filed an application to have the seized items that were not the subject of the charges that were brought against him to be released to him without further ado. The Applicant was aggrieved by the decision of the trial court which was rendered on 5th November 2018. The Applicant challenged the decision of the trial court requiring the police to release the detained items because it was of the view that such release would prejudice the ongoing trial before the trial court and further, would prejudice further investigations that were being conducted. This court stayed the orders issued by the trial court pending the hearing of this application. For completeness of record, the Respondent filed a Replying Affidavit in opposition to the application. In essence, the Respondent was saying that the court should uphold the decision of the trial court and order the seized items that were not the subject of the charges to be released to him.
During the hearing of the application, this court heard oral rival submission made by Ms. Nyauncho for the Applicant and Mr. Sifuna for the Respondent. This court has carefully considered the said submission and takes the following view of the matter. As stated earlier in this ruling, the Respondent does not dispute that there are certain items that are subject to production as exhibits before the trial court. There are other items however, which the prosecution indicated in its earlier application before the trial court that it was investigating whether the said items were proceeds of crime or were procured as a result of criminal activities. Having perused the trial court’s record, this court does not want to prejudice or to render opinion in respect to the trial that is pending before the trial court. Suffice for this court to state that the Applicant should prepare an inventory of the items that it seized from the Respondent and indicate which item will be produced in respect of which charge that has been laid against the Respondent. If the Applicant forms the view that some of the items would be subject to further investigations, this court grants the police thirty (30) days to conclude its investigation and decide whether or not to charge the Respondent. There are certain items that are not registered in the Respondent’s name. The police will be required to establish a nexus between the said items and the commission of crime within thirty (30) days of the delivery of this Ruling. If they shall not do so and lay appropriate charges before the court, then the said items shall be released to the registered or equitable owners.
This matter shall be mentioned on 17th September 2019 before this court for further directions. Either party shall be liberty to apply if there shall be any developments before that date. It is so ordered.
DATED AT NAIROBI THIS 18TH DAY OF JULY 2019
L. KIMARU
JUDGE