Republic v Kasomi & 2 others (Criminal Case E481 of 2024) [2025] KEMC 67 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court has jurisdiction to order for release of the motor vehicle in issue
- 2.If so, to whom should the motor vehicle be released
- 3.Whether the applicant is entitled to the reliefs sought
Key legal issues
#Jurisdiction of the magistrate's court under section 177 of the Criminal Procedure Code to release an intended exhibit before production in court
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
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.
Whether the motor vehicle should be released to the accused/applicant
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
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.
Legal principles established
#- 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
#- 1.The application dated 10/12/2024 is hereby dismissed
- 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.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.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
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Costs
No costs order made in the disposition; the application sought costs but none were awarded in the final orders.
Quotable passages
#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.
In the circumstances of this case, I do not find it safe to order for release of the motor vehicle at this stage.
The application dated 10/12/2024 is hereby dismissed;
The applicant is at liberty to revisit the application if there is a change of circumstances favouring the release of the motor vehicle.
Issues in the judgment
#Paragraph numbering in the disposition restarts at 2 after the analysis section ends at paragraph 24, suggesting a typographical or extraction error
The case number of the criminal proceedings before the court is not stated anywhere in the judgment
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.