Irene Auma Odero v O. C. S- Diani Police Station

at all, in spite of the mechanic, one Bernard Ochieng explaining to them that she was the owner of the vehicle and providing her particulars to them. She deposes that by the time of filing the application, one month after the detention of the vehicle, she had never been contacted by any police officer over the illegal detention of the vehicle. She thus reported the issue at Diani police station through OB No. 95 of 2025 on 13th June 2025 but no explanation of the detention was forthcoming from the police officers at Diani police station. c. The applicant’s advocate wrote a letter to the OCS Diani police station who instead referred them to the DCI, Anti-Narcotics Police Unit ANU, Mombasa. d. It is the applicant’s contention that as the officer in charge of Diani police station, the respondent has failed in his duties to make full disclosure and the reasons for detention as she has not been informed of any criminal investigations involving the said vehicle. e. It is the applicant’s case that as a result of the detention of the vehicle, she has been denied the use thereof and she is undergoing financial loss and mental torture as the vehicle continues to deteriorate due to harsh weather as it is parked in the open. She deposes that she has been prejudiced and deprived of her right to earn a living and own property. 4. The application was initially served upon the Director of Public Prosecutions but this court directed that the proper party to be served was the Attorney General. Subsequent process was served upon the Attorney General who though much later, filed a replying affidavit sworn by Dr. Robert Lumbasi, the Officer Commanding Anti-Narcotics Unit, Coast Region opposing the application. The respondent also adopted the replying affidavit filed by the Assests Recovery Agency) which also opposes the motion. 5. In the meantime, the Assets Recovery Agency (ARA) applied to join the proceedings as an Interested Party and the application was allowed. 6. The ARA filed a replying affidavit sworn on 25th July 2025 by Bedford Muriuki, a police officer attached to the Agency. He deposes that the applicant is under investigations by a multi-agency team led by the ARA under Inquiry File Number 86 of 2024 in a suspected case of money laundering obtained from trafficking in narcotic drugs, acquisition of proceeds of crime and possession of assets used for or intended for the commission of crime. He has deposed outlining the chronology of investigations against the applicant starting in October 2024. He despises that a result of the investigations, the applicant was arrested and charged vide Kwale MCCCR/E374/2024; Republic vs Irene Auma Odero and Omar Hamisi Mwafrika with the offence of trafficking in 314.05 kilograms a narcotic drug namely Cannabis with a market value of KShs. 9,421,500/= by storing under the Narcotic Drugs and Psychotropic Substances Control Act (Cap. 245) Laws of Kenya. A copy of the charge sheer is annexed to the replying affidavit. 7. The IP deposes further that investigations established that the applicant herein is also linked to Doris Achieng Adika and David Otieno who were arrested and charged with the offence of trafficking in 328 kilograms of narcotic drugs to wit cannabis valued at Ksh. 9,867,000 by conveying them in motor vehicle registration number KDJ 890X registered in the name of the applicant which at the time of arrest was falsely bearing registration number KDA 176T and further that the applicant was receiving suspicious funds from the said Doris Achieng Adika to the tune of Ksh. 253,000 thereby making her a beneficiary of the proceeds from the unlawful conduct by the said Doris Achieng Adika and David Otieno. A copy of the charge sheet for the two is also annexed. 8. The replying affidavit contains other multiple allegations of criminal conduct against the applicant of her association with other persons alleged to be involved in trafficking in narcotic drugs. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4562/eng@2026-01-23 2

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9. It is deposed further that the KShs 1,200.000/= paid to Moiz Motors Ltd by the applicant as deposit for the purchase of motor vehicle registration number KDR 697W, the subject of the present application, are funds suspected to constitute proceeds of crime from the illegitimate trade in narcotic drugs and as such the motor vehicle in issue having been purchased using proceeds of crime therefore constitutes realizable property under the provisions of the Proceeds of Crime and Anti Money Laundering Act (Cap. 59A) Laws of Kenya (POCAMLA). Further, it is suspected that the said motor vehicle is used in the commission of the offence of trafficking in narcotic drugs and therefore, pursuant to the provisions of section 53(A) and 85 of POCAMLA as read with provisions of sections 57(2) of the National Police Service Act (Cap. 84) Laws of Kenya, the said motor vehicle registration number KDR 697W was detained based on reasonable suspicion that it was being used or is intended for use for the commission of an offence. 10. That pursuant to this information, the Interested Party sought and was granted preservation orders at the High Court in Milimani Anti-Corruption and Economic Crimes division case number HCACECMISC/E031/2025 pursuant to sections 82 and 83 of the Proceeds of Crime and Anti Money Laundering Act (POCAMLA) prohibiting the applicant herein from and/or their agents or representatives from the sale, transfer, charging/mortgaging or disposal off or any other dealings in respect of motor vehicle registration number KDJ 890X and KDR 697W dated 16th July 2025. A copy of the said application and order issued are annexed to the replying affidavit. 11. He deposes further that sometime in March 2025, he summoned the applicant herein to record her statement on the allegations of trafficking in narcotic drugs, acquisition of proceeds of crime and possession of assets used or intended for use in the commission of a crime, but the applicant never honoured the summons and has remained elusive. He also summoned, her husband David Maira Otieno who honoured his summons. On 19th June 2025, the said Maira Otieno recorded his statement and confirmed the assets associated to him and the applicant herein. The deponent believes that the action of summoning the applicant and her husband to record their statements prompted the applicant to seek the orders before this Court. 12. The police officer deposes further that the applicant was all along aware that she was being pursued by the Agency but conveniently failed to disclose this fact to this court so as to have the said motor vehicle registration number KDR 696W released to her which action would frustrate the process of recovery of proceeds of crime. 13. He deposes further that based on the foregoing reasons, the Interested Party in detaining the applicants motor vehicle at Diani Police Station, acted within the law and its mandate of recovering proceeds of crime and assets used or intended for the use of commission of a crime. 14. The police officer annexed to the replying affidavit copies of the summons to the applicant and a copy of David Maira’s statement. 15. The application was disposed of by way of written submissions. 16. Learned counsel for the applicant filed submissions urging the court to allow the application while learned counsel for the IP filed submissions urging the court not to order for the release of the subject motor vehicle. 17. Learned counsel for the applicant submits that failure by the respondent to file any replying affidavit opposing the application means the respondent is not opposed to the prayers sought therein. He has cited the case of North End Trading Company Limited (Carrying on the Business under the registered https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4562/eng@2026-01-23 3

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name of Kenya Refuse Handlers Limited v City Council of Nairobi [2019] KEHC 10180 (KLR) the Court held that: “ it is trite law that where a party fails to call evidence in support of its case, the party’s pleadings are not to be taken as evidence, but the same remain mere statements of fact which are of no probative value since the same remain unsubstantiated pleading which has not been subjected to the required test of cross examination.” 18. However, as indicated by the court above, the respondent subsequently filed a replying affidavit. The cause of the failure to appear in the matter was that the applicant had served the application upon the ODPP instead of the AG. It was after the court had pointed out this error that the AG was served and responded to the application. 19. Secondly, even if the respondent had not filed a response, the IP applied for leave and was granted the same. The IP filed a replying affidavit in time acknowledging that it was the one under whose directions the subject motor vehicle was being detained at Diani police station and offered the reasons for the same. 20. Learned counsel submits further that the police failed to furnish the applicant with reasons for the detention of her car and an update of the investigations thereby breaching the letter and spirit of the Constitution and the National Police Service Act on transparency and accountability. 21. Further that the subsequent acts of the respondent through its proxy, the Interested Party herein of filing an application in a different court was to secure ex-parte orders and defeat the application herein, was in bad faith, contrary to rules of natural justice and any decision arrived through an illegal process in null and void ab initio. 22. Learned counsel submits further that the actions of the respondent of detaining motor vehicle arbitrarily and without any explanation and reasons is a gross violation of the Applicant’s rights as it amounts to depriving her property without any justifiable reason was in breach of Articles 40 of the Constitution, as well as articles 47 and 50(1) of the Constitution which respectively provide for the right to fair administrative action and the right to fair hearing, Learned counsel relies on the case of Ridge v Baldin (1964) AC (1963) 2 ALL ER 66 where the Court, while discussing the right to fair hearing observed as follows; “ The principle of fairness has an important place in the administration of justice and is also a good ground upon which courts ordinarily exercise discretion to intervene and quash the decisions of a tribunal or subordinate court made in violations of right to a fair hearing and due process.” 23. Further Section 4(1) of the Fair Administrative Action Act No.4 of 2015 provides that, “Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair. 24. Section 4(3) provides that: “ Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision— a. prior and adequate notice of the nature and reasons for the proposed administrative action; b. an opportunity to be heard and to make representations in that regard; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4562/eng@2026-01-23 4

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25. c. notice of a right to a review or internal appeal against an administrative decision, where applicable; d. a statement of reasons pursuant to section 6; 4 e. notice of the right to legal representation, where applicable; f. notice of the right to cross-examine or where applicable; or g. Information, materials and evidence to be relied upon in making the decision or taking the administrative action. Learned counsel also cited the case of Sceneries Limited v National Land Commission [2017] KEHC 8460 (KLR) where the Court held: “ I find no difficulty in concluding that the Respondents violated the rules of natural justice by failing to serve the Applicant with adequate notice and details of the complaint and on this ground alone, i am inclined to allow the Originating Summons before me. The Court further held, a decision arrived at in total breach of the rules of natural justice is ultra vires null and void and cannot be allowed to stand…” 26. Learned counsel submits that the applicant has demonstrated that her constitutional rights to fair hearing and due process on the decision to deprive her property was in violation of the law. 27. Further that this court is not bound by any ex-parte orders issued by another court of concurrent jurisdiction and so this application should be determined on its own merits and the prayers sought granted. 28. The IP has submitted on two issues. First that the applicant is guilty of material non-disclosure for failing to disclose that she was summoned by the Interested Party to record her statement on allegations of being involved in money laundering, trafficking in narcotic drugs and acquisition of proceeds of crime. He relies of mary Chepkirui v Sosiani Builders Ltd. & 2 others [2010] KEHC 547 (KLR) where the High Court while considering an application for injunction, where the court had issued interim order of injunction ex-parte held that material non-disclosure of the magnitude that would go to the root of the sustainability or otherwise of the application, or that they were so not disclosed because the motive of such non-disclosure was to conceal something that of necessity must have been placed before the court for its determination and/or knowledge, or that by such material non-disclosure the court had been misled or even that due to it the applicant has gained some advantage unfairly over the respondents by failing to disclose the existence of those material facts, would entitle the court to dismiss the application and it matters whether or not the applicant was entitled. 29. Learned counsel also cited the case of Brink’s Mat Ltd v Elcombe [1988] 3 All ER 188 cited in the case of Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR). The principles enunciated in that case are best applied in an ex-parte application where the applicant is under an obligation to the court to make the fullest possible disclosure of all material facts within his knowledge, and if he does not make that fullest possible disclosure, then he cannot obtain any advantage from the proceedings, and he will be deprived of any advantage he may have already obtained by him. (see the case of The King Vs the General Commissioners for the Purposes of Income Tax Acts for the District of Kensington: Exparte Princess Edmond De Pligac (1917) 1 KB 486, Warrington). That is not the position in this case where the applicant made her application inter partes and did not seek to obtain any orders ex-parte. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4562/eng@2026-01-23 5

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30. Second, learned counsel submits that there already exists an order of preservation of the subject motor vehicle from another court of competent jurisdiction and the issue is whether or not the suit motor vehicle is a proceed of crime liable for forfeiture to the state. That through gazette notice number 7262 volume CXX-85 dated 20th July 2018, practice directions were issued to the effect that all cases relating to anti-corruption and economic crimes be filed in the principal registry at Nairobi. That this court should therefor apply the doctrine of avoidance and have the applicant’s issues herein resolved by that court. 31. The respondent did not file submissions to the application. 32. I have considered the application, the response thereto and the submissions by learned counsels for the applicant and the IP. The issue for determination is whether the applicant has established her case for the release of the motor vehicle registration number KDR 679W being held by the police at Diani police station. 33. The applicant did not respond to the replying affidavits filed by the respondent and the IP. In that case, the depositions therein are not challenged. 34. There is no dispute that the applicant’s motor vehicle registration number KDR 679W was impounded by the police and is detained at Diani police station, where the respondent is the officer in charge. 35. It is the applicant’s case that her said motor vehicle has been wrongfully detained by police officers because the same was impounded without any notice to her and the police had, by the time of her filing this application not contacted her nor notified her of the reasons for the detention. 36. Under section 57 of the NPSA, a police officer may stop, search and detain any vehicle or vessel which the police officer has reasonable cause to suspect is being used in the commission of, or to facilitate the commission of, an offence. 37. The applicant does not contest the fact that she had been summoned to appear before the ARA to explain herself on issues that were under investigation in relation to some criminal offences involving herself and her said vehicle. Her claim that her right to be informed why the vehicle was detained were breached is therefore not correct because had she appeared she would have been informed of the active investigations against her and that the vehicle was also subject of the investigations. 38. Moreover, the vehicle KDR 697W is detained pursuant to the provisions of section 82 as read section 83 of the POCAMLA where preservation orders dated 16th July 2025 were issued by the High Court at Nairobi, Milimani Economic Crimes and Anti-Corruption Division in НСАСЕСMISC/ E031/2025, Assets Recovery Agency v Irene Auma Odero And David Otieno Maira where the applicant is a respondent, prohibiting the applicant from and/or their agents or representatives from the sale, transfer, charging/mortgaging or disposal off or any other dealings in respect of the said motor vehicle as well as motor vehicle registration number KDJ 890X. As deposed by the IP herein the said division of the High Court is mandated by the Honourable the Chief Justice to handle such cases arising under POCAMLA. 39. Learned counsel for the applicant submits that prayer 4 of the Originating Motion of the application in the High Court at Nairobi, Milimani Economic Crimes and Anti-Corruption Division in HCACEMISC/E030/2025, Assets Recovery Agency v Irene Auma Odero And David Otieno Maira is clear the court therein issued the preservation orders after it was misled and through non-disclosure of material facts that the subject motor vehicle was already in custody of the Respondent. Although that order came later after the vehicle had been impounded, the IP has shown that in fact, the vehicle https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4562/eng@2026-01-23 6

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had been under surveillance and once it had escaped the police radar. So when it was located, it was detained under section 57A of the National Police Service Act. The detention cannot therefore be said to have been without reasonable cause and therefore in breach of the provisions of the FAAA. 40. At this point this court is only considering whether or not the IP or the respondent has valid reasons to detain the vehicle and not the veracity of the allegations of criminal conduct leveled against the applicant by the IP. I am satisfied that from the explanation by the respondent and the IP, there are valid reasons. 41. I have considered the said application and I am satisfied that the issues raised by the applicant have sufficiently been responded to by the respondent and the Interested party. It is not true that the motor vehicle has been detained without just cause. It is apparent that the reason for the detention of the motor vehicle is that there is a court order for its detention and secondly, there are active investigations concerning its acquisition and use in commission of criminal offences. It is not in the interest of justice for this court to inhibit investigative agencies from discharging their mandate as provided for under the law where the same is being undertaken within the confines of the law. 42. The applicant is not without recourse. She is a party in the matter pending at Milimani High Court ACEC Division where she will have the opportunity to ventilate her case there. 43. Consequently, I find that the application herein has no merit and the same is dismissed with no orders for costs. Orders accordingly. RULING DATED, SIGNED AND DELIVERED ON THE VIRTUAL PLATFORM TEAMS THIS 23RD DAY OF JANUARY 2026. HON. ANDAYI W. F. JUDGE In the presence of: Washalla (Ms) h/b for Mungai for the applicant. Kandie for the Interested Party N/A for the respondent. Ummu: Court assistant. HON. ANDAYI W. F. JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4562/eng@2026-01-23 7

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