Gitonga v Director of Public Prosecutions (Miscellaneous Criminal Application E019 of 2025) [2025] KEMC 180 (KLR)
The bottom line
#A Kenyan magistrate ordered a detained Toyota Prado returned to its innocent owner, ruling courts can release exhibits before they are used in evidence.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to release property intended as an exhibit before production in evidence
The magistrate's court has jurisdiction and discretion under section 177 of the Criminal Procedure Code to order release of an item not yet produced in evidence, where existence and ownership are established
The court reviewed conflicting High Court authorities and adopted the line of cases holding that section 177 contains no requirement of prior production as an exhibit. A literal reading implies property must have been found in the accused's possession, but the provision should extend to property linked to the accused in the charge whether or not in his physical possession. Here ownership by the applicant was undisputed and the applicant faced no charge.
Caution in forfeiture offences under section 105 of the Wildlife Conservation and Management Act
Even where jurisdiction exists, courts must be cautious with property liable to forfeiture, especially where the owner is not accused of any offence
The motor vehicle was both an intended exhibit and liable to forfeiture under section 105 of the Wildlife Conservation and Management Act. The owner was neither charged nor implicated, and it was highly likely he was not privy to any criminal use of the vehicle. It would be unfair to punish an uncharged owner by prolonged detention of the vehicle.
Precedent in the face of conflicting decisions
Where a higher court's decisions conflict, a lower court may judiciously choose which to follow, per the Gacheche criteria including per incuriam
The court noted divergent High Court views on pre-production release of exhibits and no Court of Appeal authority. Relying on the five-judge decision in Gacheche, it held that conflicting previous decisions or per incuriam decisions justify departing from otherwise binding precedent, and chose the interpretation favouring jurisdiction and the interest of justice.
Legal principles established
#- Section 177 of the Criminal Procedure Code does not require that an item be produced in evidence as an exhibit before a court may order its release; parties need only establish existence and ownership of the item
- Where there are conflicting decisions by the same court, a lower court is entitled to choose which decision to follow, judiciously and in the interest of justice
Court orders
#- 1.The motor vehicle registration number KCR xxxR Toyota Prado be released to the registered owner Nelson Kinoti Gitonga
- 2.The investigating officer to cause photographs of the said motor vehicle to be taken before the motor vehicle is released
- 3.The motor vehicle be released not later than three days from today, subject to clause (d)
- 4.The release of the motor vehicle is on condition that the owner deposits the original logbook (certificate of registration) in court and shall produce the motor vehicle in court as and when required upon reasonable notice
- 5.The motor vehicle shall not be sold or alienated until the case is heard and determined or until further orders of the court
- Jurisdiction invoked
- Articles 23(2) and 169(1)(a) of the Constitution read with the Magistrates Court Act and section 177 of the Criminal Procedure Code
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gitonga v Director of Public Prosecutions (Miscellaneous Criminal Application E019 of 2025) [2025] KEMC 180 (KLR)", Case Analysis (2025). Criminal Case No. E063 of 2025 (application dated 14/2/2025) - R v Wilson Maswii Kilunda & another. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/180/eng@2025-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.