Kenya Judgment

High Court · High Court at Nairobi (Milimani Law Courts)

Simon Nyutu Waithira v Republic [2017] KEHC 9544 (KLR)

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The court held that the continued detention of the applicant's motor vehicle by the police, in the absence of any formal charges and without a warrant of arrest, is prejudicial to the applicant and constitutes an abuse of police powers. The court found no convincing evidence that the applicant had gone underground, especially since he had been reporting to the police regularly and no warrant for his arrest had been sought. The court ruled that if the police do not charge the applicant by the close of the following day, it would have no alternative but to order the release of the motor vehicle. The court emphasized that forfeiture of property is a matter to be determined after a trial, not at the pre-charge stage.

Court disposition

Conditional order for release of motor vehicle if applicant is not charged by close of day following the ruling.

Orders

  • If the police do not charge the applicant by close of day tomorrow, the court will order the release of the motor vehicle.
  • Mention on 18/10/2017 to confirm compliance and for further orders.

02

Material facts

Parties

Simon Nyutu Waithira

Appellant Counsel: Thuo

Republic

Respondent Counsel: M/s Aluda

03

Procedural history

  1. Posture

    Miscellaneous Application / Ruling

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant denies going underground and claims to have been reporting at Buruburu Police Station on a weekly basis. He argues that the continued detention of his motor vehicle is prejudicial and unwarranted, especially since no warrant of arrest was sought and no charges have been preferred against him for four months.
Respondent
The respondent asserts that the applicant is the sole suspect in a narcotics trafficking matter and alleges that he went underground, justifying the continued detention of the motor vehicle as an instrument used in the alleged crime. The police claim to have sufficient evidence to charge the applicant.

05

Court’s reasoning

  1. 01

    Narcotic Drugs and Psychotropic Substances (Control) Act, Section 74A

    Forfeiture of any vessel, object, or instrument used in trafficking narcotic drugs is provided for by law, but such forfeiture is subject to the outcome of a trial and not at the pre-charge stage.

  2. 02

    Constitution of Kenya, Article 49; general principles of criminal procedure

    Police powers must not be abused for selfish ends, and prolonged detention of property without formal charges is prejudicial to the suspect.

06

Ratio, limits and disposition

Ratio decidendi

The court held that the continued detention of the applicant's motor vehicle by the police, in the absence of any formal charges and without a warrant of arrest, is prejudicial to the applicant and constitutes an abuse of police powers. The court found no convincing evidence that the applicant had gone underground, especially since he had been reporting to the police regularly and no warrant for his arrest had been sought. The court ruled that if the police do not charge the applicant by the close of the following day, it would have no alternative but to order the release of the motor vehicle. The court emphasized that forfeiture of property is a matter to be determined after a trial, not at the pre-charge stage.

Obiter and limits

  • It raises eyebrows how and why it has taken four months to charge the applicant.
  • What the court will not condone is a situation of the police abusing their powers for their selfish ends.
  • Detaining the motor vehicle endlessly is prejudicial to the applicant.

Court disposition

Conditional order for release of motor vehicle if applicant is not charged by close of day following the ruling.

  • If the police do not charge the applicant by close of day tomorrow, the court will order the release of the motor vehicle.
  • Mention on 18/10/2017 to confirm compliance and for further orders.

Source and reliance status

High Court

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Judgment text

The complete available source text.

Source document

High Court

Judgment

[2017] KEHC 9544 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

MISC. CR. APPLICATION NO. 199 OF 2012

SIMON NYUTU WAITHIRA........APPELLANT

VERSUS

REPUBLIC................................RESPONDENT

RULING

I have listened to the submissions by both counsel. The court is aware about the law providing for forfeiture of any vessel or object or instrument that is demonstrated was used in trafficking narcotic drugs. But I am also aware that several factors play in before the forfeiture order is granted. That is not an issue that this court is mandated to consider at this stage. It is an issue that would play in depending on the outcome of a trial.

At this stage, no one has been charged. It is said that the Applicant, the sole suspect went under, a fact he denies claiming that he has been reporting at Buruburu Police Station on a weekly basis.

In my view, it raises eye brows how and why it has taken four months to charge the Applicant. He is now available for arrest and charge. And nothing stops the police from doing so now that they claim they have sufficient evidence to charge him. What the court will not condone is a situation of the police abusing their powers for their selfish ends. Detaining the motor vehicle endlessly is prejudicial to the Applicant. I am not convinced that the Applicant went underground as even a warrant of his arrest was not sought. In that case, if the police do not charge the Applicant by close of day tomorrow, the court will have no alternative but to order the releases of the motor vehicle.

Mention on 18/10/2017 to confirm the same and for further orders.

Dated and delivered at Nairobi this 16th October, 2017.

G. W. NGENYE-MACHARIA

JUDGE

In the presence of;

1. Thuo for the Applicant

2. M/s Aluda for the Respondent.

Source wording is retained. Consult the source document for its original formatting and pagination.

Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Narcotic Drugs and Psychotropic Substances (Control) Act, Section 74A

Legislation

Legislation referenced in the available case record.

Constitution of Kenya, Article 49

Legislation

Legislation referenced in the available case record.

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