Simon Nyutu Waithira v Republic [2017] KEHC 9544 (KLR)
- Citation
- [2017] KEHC 9544 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- High Court
- Posture
- Miscellaneous Application / Ruling
- Case number
- Miscellaneous Criminal Application 199 of 2012
- Language
- English
More details
- Court
- High Court
- Posture
- Miscellaneous Application / Ruling
- Case number
- Miscellaneous Criminal Application 199 of 2012
- Language
- English
On this page
Professional case brief
Research organized from the available case record
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: ThuoRepublic
Respondent Counsel: M/s Aluda03
Procedural history
Posture
Miscellaneous Application / Ruling
04
Questions and positions
Legal issues
- 01
Whether the continued detention of the applicant's motor vehicle by the police is lawful in the absence of formal charges.
- 02
Whether the applicant evaded arrest or has been compliant with police reporting requirements.
- 03
Whether the police are abusing their powers by delaying the charging of the applicant.
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
Legal principles
- 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.
- 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
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
High Court
Judgment
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.
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