[2024] KEHC 14431 (KLR)
The court found that the applicant had demonstrated a risk of prejudice if the ex parte order releasing the motor vehicle was not set aside, as the vehicle is a key exhibit in an ongoing narcotics investigation. The applicant was not given an opportunity to be heard before the order was made, violating principles of...
Source-derived case information.
- Citation
- [2024] KEHC 14431 (KLR)
- Parties
- Applicant: Republic; Respondent: Shaley Capital; Respondent: Refuge Travel Limited; Respondent: Gerald Ndemo Rasungu
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E085 of 2024
- Procedural Posture
- Criminal Revision / Interlocutory Application for Revision of Ex Parte Release Order
- Outcome
- Application for revision allowed; ex parte release order set aside pending hearing.
- Judges
- DR Kavedza
- Legal Topics
- Criminal Revision, Release of Exhibits, Ex Parte Orders, Trafficking in Narcotic Drugs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Shaley Capital
Respondent
Refuge Travel Limited
Respondent
Gerald Ndemo Rasungu
Respondent
Procedural Posture
Criminal Revision / Interlocutory Application for Revision of Ex Parte Release Order
Legal Issues
- 1 Whether the ex parte order releasing the motor vehicle to the 1st respondent should be set aside pending inter partes hearing.
- 2 Whether the applicant was denied the right to be heard before the release of the motor vehicle.
- 3 Whether retaining the motor vehicle is necessary to preserve evidence in an ongoing narcotics investigation.
Ratio Decidendi
The court found that the applicant had demonstrated a risk of prejudice if the ex parte order releasing the motor vehicle was not set aside, as the vehicle is a key exhibit in an ongoing narcotics investigation. The applicant was not given an opportunity to be heard before the order was made, violating principles of natural justice. To prevent irreparable harm and ensure the fair determination of the matter, the court set aside the release order pending inter partes hearing. The court emphasized the importance of preserving evidence and upholding the right to be heard before making orders that may affect the outcome of criminal proceedings.
Court Disposition
Application for revision allowed; ex parte release order set aside pending hearing.
Orders
- Matter certified urgent.
- Order issued on 15th November 2024 releasing Motor Vehicle KDD 835Q Toyota Prado to the 1st respondent is set aside pending hearing and determination of this application.
Full Case Text
Judgment text and source record
23 paragraphs
Republic v Capital & 2 others (Criminal Revision E085 of 2024) [2024] KEHC 14431 (KLR) (20 November 2024) (Ruling)
Neutral citation: [2024] KEHC 14431 (KLR)
Republic of Kenya
In the High Court at Kibera
Criminal Revision E085 of 2024
DR Kavedza, J
November 20, 2024
Between
Republic
Applicant
and
Shaley Capital
1st Respondent
Refuge Travel Limited
2nd Respondent
Gerald Ndemo Rasungu
3rd Respondent
Ruling
1. The applicant has filed an undated Notice of Motion received on 19th November 2024, seeking revision orders under the impugned ruling in Kibera Misc. Application No. E1048 of 2024. Specifically, they challenge the order issued on 15th November 2024, which was to the effect that the motor vehicle registration number KDD 835Q Toyota Prado at DCI Muthangari Police Station be released to the 1st respondent. The applicants request that the orders be set aside pending the hearing and determination of this application.
2. The application is supported by an affidavit of even date sworn by Ms. Kathurima, learned prosecution counsel. The applicant contend that the motor vehicle in issue is part of ongoing investigation in a case of trafficking of narcotic drugs. The investigations are yet to be concluded. Despite a pending inter partes hearing on the respondent’s application, the trial court issued ex parte orders releasing the motor vehicle to the 1st respondent. The applicant argues that they were not afforded an opportunity to be heard and further that the application was filed without delay. The applicant further maintains that granting the orders sought will not prejudice the respondents but will ensure fair determination of the matter.
3. Upon considering the application and supporting affidavit the court's primary duty at this stage is to assess whether the applicant would suffer prejudice if the orders sought are not granted. Granting the orders is imperative to prevent irreparable harm, as allowing the respondents unfettered access to the motor vehicle who are not estopped from disposing it may render the render the application nugatory and defeat the purpose of the proceedings.
4. In the premises, I hereby make the following orders:i.The matter is certified urgentii.The order issued on 15th November 2024 at Kibera Chief Magistrate’s Court Miscellaneous Application No. E1048 of 2024 releasing Motor Vehicle registration number KDD 835Q Toyota Prado held at the Directorate of Criminal Investigations Muthangari Police Station to the 1st respondent is hereby set aside in their entirety pending hearing and determination of this application.iii.The applicant is directed to serve the respondents with the application and order of this court within 3 days from the date hereof.iv.Upon service, the respondent is directed to file a response within 7 days.v.The deputy registrar is directed to ensure that the original untyped trial court file and miscellaneous application file is availed within 7 days from the date hereof.vi.The application shall be heard on 10th December 2024.
RULING DATED AND DELIVERED VIRTUALLY THIS 20TH DAY OF NOVEMBER 2024D. KAVEDZAJUDGE