Republic v Indako (Criminal Case E170 of 2025) [2026] KEMC 694 (KLR)
The bottom line
#A Bungoma court convicted a phone repairer on five cybercrime counts, ruling police may search without a warrant when investigating offences against Kenya's critical infrastructure.
What this practically means
#Executive summary
#Key legal issues
#Warrantless search of the Accused Person's business premises
The absence of a search warrant was not fatal; searches under the Act without a warrant are permitted where circumstances demand, and the evidence remained admissible under Article 50(4) via inevitable discovery and good faith
The court read 'may' in section 48 of the Act contextually, holding cyber offences resemble cognizable offences requiring swift action to secure volatile evidence. Relying on the Ali decision, it found the M-Kopa system to be critical infrastructure under Gazette Notice No. 1043, permitting warrantless searches. In the alternative, it held the right to privacy is not absolute, applied the doctrines of inevitable discovery and good faith, and noted the officers were allowed ingress and the Accused cooperated.
Chain of custody of the exhibits
The chain of custody was not broken from search through investigation to arraignment
The devices were exclusively handled by PW1, PW3 and PW4 per the exhibit memo; PW3 explained that activity logs and time stamps would reveal post-seizure access, and none was found; and the Accused admitted the recoveries were made from his premises, rendering the place of signing the inventory immaterial and making further corroborating witnesses unnecessary.
Proof of counts II (unauthorised access) and III (unauthorised interference)
Both counts proved beyond reasonable doubt on circumstantial evidence
Forensic analysis linked the hard drives recovered from the Accused's shop to access of 136 M-Kopa devices whose IMEIs PW2 identified and which had stopped communicating with the M-Kopa system. Applying the Abanga and Sawe tests, the court found the cumulative circumstances formed a complete chain pointing exclusively to the Accused, who had no permission from M-Kopa and bore an evidential burden under section 111 of the Evidence Act to show anyone else worked with him, which he did not discharge.
Proof of counts I and IV (unlawful possession of devices and access codes)
Both counts proved; possession of repair devices becomes criminal once procured or used for offences under the Act
The court acknowledged the devices are lawfully ownable by a licensed phone repairer, but having convicted the Accused on counts II and III committed using those devices, it found he procured them for the commission of offences under the Act, satisfying sections 18(1) and 18(2) of the Act.
Proof of count V (possession of suspected stolen property)
Count proved; the Accused failed to give a satisfactory account of possession
PW2 proved the five M-Kopa phones belonged to M-Kopa and had been illegally reprogrammed to permanently deprive M-Kopa of its property, evidencing stealing; the Accused's repair-business explanation was displaced because one would not illegally reprogramme phones received for ordinary repair; DW2 could not identify or prove ownership of any phone he allegedly brought.
Legal principles established
#- The word 'may' in section 48 of the Computer Misuse and Cyber Crimes Act permits warrantless searches under the Act where the circumstances of the case and the nature of the offences permit, particularly where offences touch systems designated as critical infrastructure
- Evidence obtained without a search warrant is admissible under Article 50(4) of the Constitution where admission would not render the trial unfair, including under the doctrines of inevitable discovery and good faith
- Possession of devices and access codes under sections 18(1) and 18(2) of the Computer Misuse and Cyber Crimes Act becomes an offence only where the devices are procured or used for committing an offence under the Act
- Conviction on wholly circumstantial evidence requires the inculpatory circumstances to form a complete chain incapable of explanation on any reasonable hypothesis other than guilt
- Under section 323 of the Penal Code a person found with property reasonably suspected of being stolen is guilty only if he fails to give a satisfactory account of how he came by it; an explanation displaced by the prosecution's evidence does not avail him
Court orders
#- 1.The Accused Person is convicted under section 215 of the Criminal Procedure Code of all the charges (counts I to V) facing him
- Jurisdiction invoked
- Original criminal jurisdiction of the magistrates' court under the Criminal Procedure Code over charges under the Computer Misuse and Cyber Crimes Act No. 5 of 2018 and the Penal Code
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Indako (Criminal Case E170 of 2025) [2026] KEMC 694 (KLR)", Case Analysis (2026). Criminal Case No E170 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/694/eng@2026-02-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.