[2024] KEHC 10562 (KLR)
The court declined to grant the application for release of the motor vehicle because the matter did not meet the threshold for urgency under the Vacation Rules and because the substantive murder trial, in which the vehicle is an exhibit, is pending before another judge of concurrent jurisdiction. The court held that...
Source-derived case information.
- Citation
- [2024] KEHC 10562 (KLR)
- Parties
- Applicant: Adhiambo Oloo Olivia; Respondent: Director of Public Prosecutions; Defendant: Zacharia Okoth Obado; Defendant: Michael Juma Oyamo; Defendant: Casper Ojwang Obiero
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 46 of 2018
- Procedural Posture
- Criminal Case / Ruling on Urgent Application for Release of Property
- Outcome
- Application declined; matter referred to trial judge.
- Judges
- AM Muteti
- Legal Topics
- Exhibits Management, Restitution of Property, Right to Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Adhiambo Oloo Olivia
Applicant
Director of Public Prosecutions
Respondent
Zacharia Okoth Obado
Defendant
Michael Juma Oyamo
Defendant
Casper Ojwang Obiero
Defendant
Procedural Posture
Criminal Case / Ruling on Urgent Application for Release of Property
Legal Issues
- 1 Whether the High Court should release motor vehicle KCL 481 K to the applicant during the pendency of the murder trial.
- 2 Whether the application meets the threshold for hearing under the High Court (Practice and Procedure) Vacation Rules.
- 3 Whether the continued detention of the vehicle constitutes a violation of the applicant's right to property.
Ratio Decidendi
The court declined to grant the application for release of the motor vehicle because the matter did not meet the threshold for urgency under the Vacation Rules and because the substantive murder trial, in which the vehicle is an exhibit, is pending before another judge of concurrent jurisdiction. The court held that it would be improper to make orders that could impact a matter still before another judge, and that the applicant should seek redress before the trial judge. The continued detention of the vehicle, though a limitation on the applicant's right to property, is justified for a legitimate purpose under Article 24 of the Constitution, namely the administration of justice in the...
Court Disposition
Application declined; matter referred to trial judge.
Orders
- The Notice of Motion dated 29th August 2024 is to be placed before the Honourable Lady Justice Githua, who is seized of the murder trial No. 46 of 2018, in the new term.
- The matter shall be mentioned before the presiding judge of the Criminal Division on 17th September 2024 for further orders.
Full Case Text
Judgment text and source record
46 paragraphs
Republic v Obado & 2 others; Olivia (Applicant); Director of Public Prosecutions (Respondent) (Criminal Case 46 of 2018) [2024] KEHC 10562 (KLR) (Crim) (2 September 2024) (Ruling)
Neutral citation: [2024] KEHC 10562 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Criminal
Criminal Case 46 of 2018
AM Muteti, J
September 2, 2024
Between
Republic
Prosecutor
and
Zacharia Okoth Obado
1st Accused
Michael Juma Oyamo
2nd Accused
Casper Ojwang Obiero
3rd Accused
and
Adhiambo Oloo Olivia
Applicant
and
Director of Public Prosecutions
Respondent
Ruling
1. This matter came up before me under certificate of urgency. The applicant vide Chamber Summons dated 29th August 2024 seeks the release of motor vehicle Registration Number KCL 481 K Chessis Number NZE 141-9136475 owned and registered in the name of Adhiambo Oloo Olivia.
2. The said Adhiambo Oloo Olivia is not one of the accused persons in the original murder file No. 46 of 2018.
3. I have perused the application and the accompanying affidavit.
4. I note that the applicant seeks restitution of property.
5. The applicant has moved the court under Rule 3 (1) & (2) of the High Court (Practice and Procedure) vacation Rules and Article 159 of the Constitution.
6. I do not think that the matter meets the test of a matter to be heard under the Vacation Rules.
7. Admittedly the motor vehicle has been in the parking yard as an exhibit in the murder case since September 2018.
8. The same has since been produced before the trial court as an exhibit as per the grounds set out on the face of the chamber summons.
9. The applicant does not state why they did not seek release of the motor vehicle before the trial court immediately after its production.
10. The vehicle having been seized on 19th September 2018, the same has been kept by the court as an exhibit.
11. This court is not seized of the facts of the matter in the trial before the learned Honourable Lady Justice Githua C. I cannot therefore make orders that are likely to impact on a matter that I am informed is still pending before a judge of concurrent jurisdiction.
12. The learned Lady Justice Githua is seized of the matter and it is my considered view that the court would be best suited to deal with all the issues arising as a result of investigations in the matter and disposal of exhibits.
13. Whereas I agree that the continued detention of the motor vehicle may constitute denial of the right to property, the right to that property is being limited for a legitimate purpose in accordance with the provisions of Article 24 of the Constitution of Kenya.
14. The right to a fair hearing is not derogable by dint of the provisions of Article 25 of the Constitution.
15. This court is alive to its duty to safeguard the interests of justice protect and uphold the rights of all the accused persons.
16. It is not possible for this court to tell what would be the impact of release of the exhibit at this stage and reiterate that since the matter is still pending before another judge, common decency would dictate that I decline proceeding to consider the notice of motion at this stage.
17. In the end I find that this is not a matter of utmost urgency in the circumstances. I decline to certify it as being fit to be heard during the vacation.
18. I order and direct that the Notice of Motion dated 29th august 2024 be place before the Learned Honourable Lady Justice Githua who is seized of the murder trial No. 46 of 2018 Republic Vs. Zacharia Okoth Obado & 2 others in the new term.
19. The matter shall be mention before the presiding judge of the Criminal Division on 17th September 2024 for further orders.
20. It is so ordered.
A. M. MUTETIJUDGEDATED, SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 2ND DAY OF SEPTEMBER 2024. In the presence of:Kiptoo: Court AssistantNo appearance for the ApplicantNo appearance for the State