[2017] KEHC 9544 (KLR)
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,...
Source-derived case information.
- Citation
- [2017] KEHC 9544 (KLR)
- Parties
- Appellant: Simon Nyutu Waithira; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 199 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- Conditional order for release of motor vehicle if applicant is not charged by close of day following the ruling.
- Legal Topics
- Forfeiture of Property, Narcotic Drugs Trafficking, Police Powers, Pretrial Detention
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Nyutu Waithira
Appellant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the continued detention of the applicant's motor vehicle by the police is lawful in the absence of formal charges.
- 2 Whether the applicant evaded arrest or has been compliant with police reporting requirements.
- 3 Whether the police are abusing their powers by delaying the charging of the applicant.
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...
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.
Full Case Text
Judgment text and source record
18 paragraphs
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.