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MagistrateDismissedNot stated in the excerpt provided

Republic v Kasomi & 2 others (Criminal Case E481 of 2024) [2025] KEMC 67 (KLR)

Magistrates Court (Criminal)
15 April 2025
4,242 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan magistrate refused to release a suspect's vehicle held by KWS, ruling it may be forfeited if he is convicted.

What this practically means

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Executive summary

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Patrick Musimba Muthinzi, an accused person out on bond in a criminal case, moved the Makindu court by notice of motion dated 10/12/2024 seeking release of motor vehicle KAZ 154E (Nissan Sunny), impounded on 3/6/2024 by Kenya Wildlife Service officers and detained at Chyulu Hills National Park as an intended exhibit in a charge under section 92(2) of the Wildlife Conservation and Management Act. He deponed that the vehicle was used for taxi business and personal use, that he depended on its income, and that it risked vandalism and wear and tear while in detention. The prosecution, through a replying affidavit sworn by Corporal Shipphirah Wanjiru, opposed release on the grounds that the vehicle was an intended exhibit, might be tampered with, and was subject to forfeiture under section 105 of the Wildlife Conservation and Management Act. The court framed three issues: jurisdiction to order release, to whom release should be made, and entitlement to the reliefs. Reviewing conflicting High Court authorities on whether section 177 of the Criminal Procedure Code may be invoked before an exhibit is produced in court, and applying the Gacheche precedent doctrine on conflicting decisions, the magistrate held that section 177 does not require production in evidence and that the court has jurisdiction and discretion to release property linked to the accused even where it was not taken from his physical possession. However, because the vehicle was both an intended exhibit and liable to forfeiture, release at the interlocutory stage was deemed unsafe and capable of causing a miscarriage of justice. The application was dismissed, but the court directed a priority hearing, ordered KWS to keep the vehicle in good condition, and granted the applicant liberty to revisit the application upon a change of circumstances.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the court has jurisdiction to order for release of the motor vehicle in issue
  2. 2.If so, to whom should the motor vehicle be released
  3. 3.Whether the applicant is entitled to the reliefs sought

Key legal issues

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01

Jurisdiction of the magistrate's court under section 177 of the Criminal Procedure Code to release an intended exhibit before production in court

Holding

The court has jurisdiction and discretion to order release of an item not yet produced in evidence, but must exercise that power cautiously, especially in forfeiture offences

Reasoning

The court surveyed conflicting High Court authorities: some held jurisdiction exists only after production as an exhibit (Republic v Cape Van International; Elijah Nyakebondo Onsongo), others allowed pre-production release (Francisca Akinyi; David Muigai Mucheru). Applying Gacheche on conflicting precedent, the court chose the broader reading: section 177 does not require production, and property need only be linked to the accused. However, where the property is an intended exhibit and liable to forfeiture under section 105 of the Wildlife Conservation and Management Act, caution dictates refusal at the interlocutory stage.

p. 7
02

Whether the motor vehicle should be released to the accused/applicant

Holding

Release was refused at this stage because the vehicle is both an intended exhibit and liable to forfeiture if an offence is found to have been committed

Reasoning

The vehicle bore two characteristics: it was a proper intended exhibit and it was subject to forfeiture under section 105 of the Wildlife Conservation and Management Act upon conviction or a finding that it was used in the commission of the offence notwithstanding no conviction. Given this, the court found it unsafe to release the vehicle at this stage, though the applicant may revisit the application on a change of circumstances and the trial was to be heard on a priority basis.

p. 8

Legal principles established

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  • Section 177 of the Criminal Procedure Code applies to property linked to the accused in the charge whether or not it was in his physical possession, and a magistrate's court has jurisdiction and discretion to order release of an item not yet produced in evidence, though such power must be exercised cautiously in forfeiture offences
  • Where there are conflicting decisions by the same court, a lower court is entitled to choose which to follow, judiciously and in the interest of justice
  • Production of exhibits in support of a charge is entirely within the discretion of the prosecution

Court orders

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  1. 1.The application dated 10/12/2024 is hereby dismissed
  2. 2.The matter shall be heard on a priority basis so as to avoid the danger of wastage of the motor vehicle and cushion the applicant against any hardship
  3. 3.The officer in charge of the KWS office where the motor vehicle is kept to ensure that the same remains in good condition pending further orders of the court
  4. 4.The applicant is at liberty to revisit the application if there is a change of circumstances favouring the release of the motor vehicle

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Articles 23(2) and 169(1)(a) of the Constitution, the Magistrates Court Act No. 26 of 2015, and section 177 of the Criminal Procedure Code

Relief refused

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Release order for motor vehicle registration number KAZ 154E held at Kenya Wildlife Service Kibwezi

The motor vehicle is an intended exhibit and liable to forfeiture under section 105 of the Wildlife Conservation and Management Act; releasing it at this stage may cause a miscarriage of justice

p. 8

Costs

No costs order made in the disposition; the application sought costs but none were awarded in the final orders.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

This brings me to the conclusion that the court has jurisdiction and discretion to order for release of an item not produced in evidence.
p. 7Jurisdiction under section 177 Criminal Procedure Code
In the circumstances of this case, I do not find it safe to order for release of the motor vehicle at this stage.
p. 8Refusal of release of intended exhibit liable to forfeiture
The application dated 10/12/2024 is hereby dismissed;
p. 9Final orders - dismissal
The applicant is at liberty to revisit the application if there is a change of circumstances favouring the release of the motor vehicle.
p. 9Final orders - liberty to revisit

Issues in the judgment

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minor

Paragraph numbering in the disposition restarts at 2 after the analysis section ends at paragraph 24, suggesting a typographical or extraction error

minor

The case number of the criminal proceedings before the court is not stated anywhere in the judgment

minor

The judgment refers to the applicant being charged jointly with the 1st and 2nd accused persons but the coram lists only an applicant and respondent, with the accused persons' names never given

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, "Republic v Kasomi & 2 others (Criminal Case E481 of 2024) [2025] KEMC 67 (KLR)", Case Analysis (2025). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/67/eng@2025-04-15

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