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MagistrateAllowedNot stated· [2024] KEMC 149 (KLR)

DCI Nakuru East v Safaricom Kenya Limited (Miscellaneous Criminal Case E275 of 2024) [2024] KEMC 149 (KLR)

Chief Magistrate's Court at Nakuru (Criminal Division)
6 June 2024
ALALOYCE-PETER-NDEGE
1,156 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru court confirmed Kenyan police can get secret warrants to access and freeze M-Pesa accounts linked to suspected fraud.

What this practically means

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Executive summary

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This was an ex parte application by DCI Nakuru East, through the supporting affidavit of No. 113791 PC Nelson Luheya, seeking a warrant to access, obtain and carry away documents relating to two Safaricom m-pesa accounts (0796226524 and 072XXXX362) for the period 01/04/2024 to 08/05/2024, and to freeze the accounts pending conclusion of investigations into an offence of intentionally withholding payment delivered erroneously contrary to section 35 of the Computer Misuse and Cyber Crimes Act No. 5 of 2018. The complaint, reported by Moses Macharia at Nakuru Central Police Station, alleged that the complainant, having reached his daily m-pesa transaction limit, gave a friend's number to the sender but mistakenly copied the number of a car wash attendant, whereupon Kshs. 320,000/- was sent to and received on that number, with preliminary investigations indicating the funds were transferred to the second account. The application was anchored on sections 118, 118A and 121(1) of the Criminal Procedure Code and section 180 of the Evidence Act. Relying on the Court of Appeal decision in Samuel Watatua & Another v Republic, the court held that these provisions confer power both to authorize police access to suspect accounts and to freeze them for preservation of evidence, and that the limitations therein are consistent with Article 24 of the Constitution. The court found merit in the application and allowed it as prayed, issuing the necessary warrants and freezing orders, to be served on Safaricom's Manager, with no orders as to costs.

Key legal issues

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01

Power to issue warrants to access and freeze accounts under investigation

Holding

The court has jurisdiction, on proof on oath of reasonable suspicion that the accounts contain evidence of an offence, to grant ex parte warrants for access to the accounts and their freezing.

Reasoning

The court relied on section 118 of the Criminal Procedure Code, which permits a magistrate to issue a search warrant where anything necessary for an investigation is reasonably suspected to be in a receptacle, section 118A, which requires such applications to be made ex parte, and section 121, which permits detention of seized things until conclusion of the investigation. Section 180 of the Evidence Act specifically empowers a magistrate to warrant inspection of banker's books. The Court of Appeal in Samuel Watatua held these powers include freezing accounts, and that their limitations are consistent with Article 24 of the Constitution. On the sworn complaint of fraudulently received m-pesa funds, the applicant satisfied the statutory threshold.

p. 3

Legal principles established

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  • A court may, on ex parte application under section 180 of the Evidence Act read with sections 118 and 121 of the Criminal Procedure Code, authorize police access to a suspect's accounts and freeze those accounts to preserve evidence of an alleged crime.

Court orders

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  1. 1.Warrant issued to No. 113791 PC Nelson Luheya to have access to, obtain information and carry away documents related to Safaricom Kenya Ltd m-pesa account numbers 0796226524 and 072XXXX362 between 01/04/2024 to 08/05/2024
  2. 2.Order freezing the said account numbers until conclusion of the ongoing investigations
  3. 3.Orders to be served upon the Manager, Safaricom Ltd Nairobi, who is bound to facilitate the investigations

Authorities

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Legislation

  • Criminal Procedure Codesection 118
  • Criminal Procedure Codesection 118A
  • Criminal Procedure Codesection 121(1)
  • Evidence Act, Cap 80section 180
  • Computer Misuse and Cyber Crimes Act, No. 5 of 2018section 35
  • Constitution of Kenya, 2010Article 24

Cases cited (1)

  • Samuel Watatua & Another –vs- Republic
    Court of Appeal Nairobi Criminal Appeal No. 20 of 2013 (Unreported)
Jurisdiction invoked
Sections 118, 118A and 121(1) of the Criminal Procedure Code and section 180 of the Evidence Act, Cap. 80

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "DCI Nakuru East v Safaricom Kenya Limited (Miscellaneous Criminal Case E275 of 2024) [2024] KEMC 149 (KLR)", Case Analysis (2024). Not stated. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/149/eng@2024-06-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.