Jirmo Sapanza v Republic (odpp) & 2 others

Kenya. During this period no substantive charge had been leveled against them by the police and despite several pleas to have the said motor vehicle released the police had refused to do so. 3. To their knowledge the said motor vehicle had not been involved in any crime the basis for which it could be detained and thus urged the court to order the respondents to unconditionally release the said Motor vehicle. On 5th August 2025 the trial Magistrate did grant the Appellant the release order they requested for but later 21st August 2025, upon oral submissions by the state did rescind the said order resulting in filing of this Appeal. B. The Appeal 4. The Appellant, being dissatisfied by the trial Magistrates Order did file his petition of appeal and raised the following grounds of appeal; a. That the learned trial Magistrate erred in law by entertaining, considering, and acting upon a request for stay of execution of the order issued on 5th August 2025, in the absence of any application for review or any stay order issued by the High court, thereby acting without jurisdiction and in violation of the doctrine of functus office. b. That the trial Magistrate misdirected himself inlaw by allowing a verbal and informal request for stay of execution, unsupported by any pleadings, affidavits or legal basis, contrary to mandatory procedural requirements and established principles of criminal procedure. c. That the learned Magistrate violated the Appellants right to fair hearing by effectively suspending the court order without granting the Appellants an opportunity to meaningful contest the request for stay, thereby acting in breach of Article 50(1) of the Constitution. d. That the learned Magistrate erred in law and principle by purporting to review, vary or suspend a final order without identifying any error apparent on the face of the record, discovery of new evidence, or sufficient cause. e. That the learned Magistrate erred in law and fact by failing to enforce a valid and subsisting court order issued on 5th August 2025, thereby undermining the authority, dignity and finality of the judicial decisions. f. That the learned Magistrate misdirected himself by permitting reliance on alleged discrepancies in Motor vehicle logbook particulars, which matters;Were not part of the original criminal inquiryWere not pleaded in the application before the court, andAre civil and administrative in nature thus amounting to consideration of irrelevant and extraneous factors g. That the learned Magistrate failed to appreciate that the continued detention of the Appellants motor vehicle for several months, in the absence of charges or evidentiary necessity, was unreasonable, oppressive and unlawful, contrary to settled legal principles governing seizure of property. h. That the learned Magistrate failed to safeguard the Appellants constitutional rights under;Article 40 (right to property), andArticle 47 (right to fair administrative action), thereby sanctioning arbitrary and unjustified state action. i. That the learned Magistrate exercised judicial discretion injudiciously, by favouring unsupported assertions by the respondents over a valid court order, without weighing proportionality, necessity, or prejudice to the Appellants. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3683/eng@2026-03-18 2

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j. That the learned Magistrate erred in law by allowing the respondents to circumvent proper appellate and revisionary procedures, thereby facilitating and abuse of the court process and setting a dangerous precedent whereby court orders maybe ignored with impunity. k. That the learned Magistrate failed in his constitutional duty to uphold the rule of law by permitting a lawful court order to remain unenforced for over forty-five (45) days thereby eroding public confidence in the administration of justice. l. That the learned Magistrate misdirected himself by shifting the burden to the Appellants to justify the validity of a court Order already issued, instead of requiring the respondents to demonstrate lawful grounds for non-compliance. m. That the leaned Magistrate failed to appreciate that once the purpose for which property seized has been exhausted, continued detention becomes unlawful, and courts are duty bound to order release. n. That the learned Magistrates action, taken as a whole, were against the weight of the law, the evidence on record, and established constitutional principles and resulted in Miscarriage of justice. 5. The Appellant therefore prayed that his Appeal be allowed, and that this court be pleased to set aside the trial court’s order dated 21st August 2025 and reinstate the order dated 5th August 2025 directing the DCI to release the suit Motor vehicle. 6. In opposing this Appeal, the state filed a replying affidavit sworn by one Chief Inspector Bonface Ireri, the SCCIO Turbi DCI, who deponed that it was indeed true that the suit motor vehicle was being held at Turbi police station following a shooting incident along Marsabit-Moyale highway near Turbi township. 7. Despite issuing the release order, the trial court subsequently for reasons outlined before the said court did allow them to continue to detain the suit motor vehicle since its chassis number had been wielded, thus clearly tampered with, it had fake registration number plates, which could not be verified against the tampered chassis number and also had visible bullet holes making it a crime scene. The trial Magistrate was not aware of these facts when he had initially ordered for the release of the said motor vehicle and upon presentation of the said facts was justified in staying his earlier decision. 8. The trial court had inherent powers to set aside its orders, where a prima facie case had been presented and, in this instance, could not be faulted for so doing. They thus urged the court to find that the Appeal lacked merit and be pleased to dismiss the same. C. Determination 9. This being the first appeal, this court is expected to re-evaluate the evidence tendered before the trial court and to come up to its own logical conclusion by taking into account the fact that it did not have the advantage of seeing and hearing the witnesses and their evidence, and/or see their demeanor. This court is guided by various established citations, including Okeno Vs. Republic (1927)E.A 32 & Pandya Vs. Republic (1975) EA 366 & Peter’s vrs Sunday Post(1958) E.A. 424 10. The appellant’s main compliant in this Appeal is that the trial Magistrate exercise his discretion unjustly by staying his previous decision dated 5th August 2025 to have the suit motor vehicle released to them based on an oral application by the ODPP, yet there was no error apparent on the face of the record, discovery of new evidence and/or sufficient cause shown to justify the same. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3683/eng@2026-03-18 3

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11. By doing so, the trial Magistrate had failed to appreciate that the continued detention of the suit motor vehicle in absence of preferred charges was unreasonable, oppressive and unlawful, contrary to the settled principles governing seizure of property. First and foremost, Under Section 349 of the Criminal Procedure Code (CAP 75), an appeal must be filed within 14 days of the order or sentence being appeal against. In this instant the order appeal from was made on 21st August 2025, while this Appeal was filed on 16th December 2025, without leave of the court, rendering the same to be a nullity abinitio. 12. Be that as it may, while filing a formal application is usually preferred, it is my finding that there is nothing fundamental wrong in the trial court entertaining an oral application to stay its prior decision if cogent/valid grounds are advanced. In this instance, the said oral application was made in the presence of the Appellant and justified ground were advanced to convince the trial court so act. 13. Finally on 14th October 2025 after the impugned order had been issued, the Appellant informed the trial court that the, “case is finished. The vehicle KBV 648V is registered in the name of Halkano Rob Bajaga, I have forwarded the logbook for registration,” and the court directed the owner to follow up with NTSA to rectify the issue. C. Disposition. 14. I do therefore find that this Appeal lacks merit and the same is dismissed on the grounds that the Appeal was filed out of time without leave of the court, the Appellant had admitted that he does not own the suit motor vehicle and that the grounds raised lack merit. 15. Right of Appeal 14 days. 16. It is so ordered JUDGMENT READ, SIGNED AND DELIVERED IN OPEN COURT AT MARSABIT THIS 18TH DAY OF MARCH 2026. FRANCIS RAYOLA OLEL JUDGE Delivered on the virtual platform, Teams this 18th day of MARCH 2026. In the presence of; Present in court ………… Appellant Mr. Mburugu ………….For O.D.P.P Mr. Jarso ………….Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3683/eng@2026-03-18 4

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