A. INTRODUCTION
1. Before the Court is the Notice of Motion dated 10th July 2026, filed by the Applicants — The DCIO Sondu/Soin Sigowet Sub-County, Geoffrey Mutai and Leonard Mutai — invoking the revisionary and supervisory jurisdiction of this Court to interrogate the correctness, legality and propriety of the Ruling and Order of the Chief Magistrate's Court at Kericho (Hon. L. Kananu, RM) delivered on 25th June 2026 in Kericho Misc. Criminal Application No. E205 of 2026, dismissing the Applicants' Notice of Preliminary Objection dated 26th May 2026.
2. The Notice of Motion is expressed to be brought “under Article 50 and Article 165(6) of the Constitution of Kenya 2010, Sections 200 and 306 of the Criminal Procedure Code and Section 146(4) of the Evidence Act and all other enabling provisions of the law.”
3. The Application is supported by the affidavit of Benedict Ombati Morata, Advocate, sworn on 10th July 2026, to which are annexed four exhibits marked “BOM-1” to “BOM-4”, namely: (a) the Notice of Motion dated 16th May 2026 by which the Respondents moved the Subordinate Court for release of title; (b) the Judgment of the Kericho Small Claims Court in SCCOMM No. E421 of 2024 delivered on 23rd April 2025; (c) the Applicants' Notice of Preliminary Objection dated 26th May 2026; and (d) the impugned Ruling of 25th June 2026.
4. The 1st and 2nd Respondents opposed the Application by way of Grounds of Opposition dated 17th July 2026.
5. Both parties have since filed written submissions, considerably later than the time granted by this Court and after this Ruling had substantially been prepared on the material then available. Consistent with the Court's obligation, under Article 159(2)(b) and (d) of the Constitution, to determine disputes without undue delay while nonetheless affording the parties a fair hearing, this Ruling has been finalised to take full account of those submissions.
B. BACKGROUND
6. The dispute has its genesis in a commercial arrangement between Korir Kiplangat Enock (2nd Respondent herein) and Geoffrey Mutai and Leonard Mutai (2nd and 3rd Applicants herein), or entities associated with them, concerning the financing of road construction works. It is common ground on the pleadings that sometime between March and April 2023, Korir Kiplangat Enock handed over the original certificate of title to LR NO. KERICHO/CHILCHILLA/FORT TERNAN BLOCK 7(KOISAGAT)/168, registered in the name of his father, David Kipkorir Ruto (1st Respondent), to Geoffrey Mutai and Leonard Mutai as security for the sums advanced.
7. A dispute over the amounts owed under that arrangement was subsequently litigated in the Kericho Small Claims Court in SCCOMM No. E421 of 2024, styled Geoffrey Kiprono Mutai v Lohaso Group Holdings Ltd and Korir Kiplangat Enock. By a judgment delivered on 23rd April 2025, Hon. L. Kananu (sitting in the Small Claims Court) entered judgment on admission under Section 26(1) of the Small Claims Court Act in favour of the Claimant in the sum of Kshs 161,000, together with costs and interest at Court rates, against the Respondents jointly and severally. I note that Leonard Mutai (3rd Applicant herein) is not named as a party to that suit; the record instead identifies Lohaso Group Holdings Ltd and Korir Kiplangat Enock as the Respondents therein. The parties have nonetheless proceeded before both the Subordinate Court and this Court on the common, unchallenged premise that SCCOMM No. E421 of 2024 settled the dispute underlying the security. I proceed on the same premise, without making any finding on the precise legal relationship between Leonard Mutai and Lohaso Group Holdings Ltd, that question not having been placed before me.
8. By a Notice of Motion dated 16th May 2026 brought “under Article 40(3) of the Constitution [and] Section 8 of the Magistrates Court Act,” David Kipkorir Ruto and Korir Kiplangat Enock moved the Chief Magistrate's Court at Kericho, in Misc. Criminal Application No. E205 of 2026, against the DCIO Sondu/Soin Sigowet Sub-County, Geoffrey Mutai and Leonard Mutai, for orders compelling release of the original title deed, which they averred was ultimately surrendered by Geoffrey and Leonard Mutai to the DCIO, and has since been withheld despite demand, allegedly on account of threats of arrest made against Korir Kiplangat Enock.
9. Geoffrey Mutai and Leonard Mutai, as 2nd and 3rd Respondents in that Application, raised a Notice of Preliminary Objection dated 26th May 2026, contending, in substance, that: (i) the Application was fatally defective and misconceived; (ii) the Subordinate Court, being a criminal Court, lacked jurisdiction to entertain what was in essence a claim for acquisition/release of land, a matter reserved to the Environment and Land Court under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act; (iii) the dispute arose from, and had already been determined in, the commercial transaction litigated in SCCOMM No. E421 of 2024; (iv) no criminal proceedings were pending against the Respondents in that Application to warrant production of the title as an exhibit; and (v) the Application was an abuse of process.
10. By a Ruling delivered on 25th June 2026, the learned trial Magistrate dismissed the Preliminary Objection. She held that grounds (i), (iii), (iv) and (v) did not raise pure points of law capable of determination in limine, applying the test in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, but that the jurisdictional objection founded on Article 40(3) and the alleged exclusivity of the Environment and Land Court's jurisdiction (ground (ii)) was properly a point of law fit for preliminary determination. On that point, she found that the Application before her did not seek a determination of ownership, title, boundaries, or occupation of land, but rather concerned the legality of the continued retention of a title document by an investigative agency in the course of a criminal investigation; that this was a matter within the ordinary and supervisory competence of a criminal Court exercising incidental jurisdiction over exhibits and property connected with investigations, and did not fall within the exclusive domain of the Environment and Land Court. She accordingly dismissed the Preliminary Objection with costs to abide the outcome of the main Application, and directed that the substantive Application proceed to hearing, which was fixed for 20th July 2026. .
11. Aggrieved, the Applicants — the DCIO Sondu/Soin Sigowet Sub-County joining as 1st Applicant, with Geoffrey Mutai and Leonard Mutai as 2nd and 3rd Applicants — filed the present revision, seeking, principally, an order calling for the record of the Subordinate Court, an order staying the proceedings in Misc. Criminal Application No. E205 of 2026 pending the hearing of this revision, and an order setting aside the Ruling of 25th June 2026 and upholding the Preliminary Objection. This Court granted the stay order and stayed the Subordinate Court’s proceedings pending this Ruling
C. THE APPLICATION FOR REVISION
12. The Notice of Motion dated 10th July 2026 seeks the following substantive orders:
(a). certification of the Application as urgent, with service dispensed with in the first instance;
(b). a stay of all proceedings in Misc. Criminal Application No. E205 of 2026 pending the hearing and determination of this Application;
(c). an order calling for the lower Court proceedings for perusal and certification as to the legality, correctness and propriety of the order of 25th June 2026;
(d). an order vacating and setting aside the order of 25th June 2026, and substituting therefor an order upholding the Notice of Preliminary Objection dated 26th May 2026; and
(e). costs.
D. THE RESPONDENTS' OPPOSITION
13. The Respondents' Grounds of Opposition dated 17th July 2026 may be summarised as follows: that the Application is incompetent and an abuse of process; that it improperly invites this Court to sit on appeal over the trial Magistrate's reasoning under the guise of revision; that it discloses no illegality, incorrectness or irregularity as contemplated under Sections 362 and 364 of the Criminal Procedure Code; that the trial Magistrate correctly found that the Application before her did not concern ownership, title, occupation, use or possession of land, but the legality of retention of a document by an investigative agency; that the questions relating to SCCOMM No. E421 of 2024, abuse of process and the absence of pending criminal proceedings required interrogation of facts and were correctly deferred to the substantive hearing; that the Applicants have not demonstrated exceptional circumstances warranting interference with the exercise of judicial discretion by the Subordinate Court; and that the Application is premature and calculated to delay the substantive hearing.
E. THE PARTIES' WRITTEN SUBMISSIONS
14. The 2nd and 3rd Applicants' written submissions, dated 7th September 2026 elaborate the grounds already pleaded in the Notice of Preliminary Objection: principally, that the Subordinate Court lacked jurisdiction because the dispute is civil and commercial in character, concerns enforcement of proprietary rights to land, and is accordingly a preserve of the Environment and Land Court under Article 162(2) of the Constitution, Section 26 of the Environment and Land Court Act and Sections 9(a) and (b) of the Magistrates' Courts Act; and that the Preliminary Objection was, in any event, argued throughout on the presumption that the Respondents' pleaded facts were correct, consistently with Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 and Oraro v Mbaja [2005] eKLR. The submissions additionally raise, for the first time in these proceedings, the contention that the learned trial Magistrate ought to have recused herself from Misc. Criminal Application No. E205 of 2026, having also presided over and determined Kericho SCCOMM No. E421 of 2024, relying on the test for apparent bias discussed in Metropolitan Properties Co. (FGC) Ltd v Lannon [1969] 1 QB 577, R v Liverpool City Justices, ex parte Topping [1983] 1 WLR 119, and Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2013] eKLR.
15. The 1st and 2nd Respondents' written submissions, dated 26th August 2026 oppose the Application on the footing that the Applicants have not demonstrated any incorrectness, illegality, impropriety or irregularity in the impugned Ruling within the meaning of Section 362 of the Criminal Procedure Code, and that the relief sought, properly understood, invites this Court to sit on appeal rather than to exercise a discretionary revisionary jurisdiction — a distinction they draw from Abraham Wafula v Republic [2013] KEHC 2972 (KLR) and Petroleum Institute of East Africa v Republic & 2 Others [2022] KEHC 12799 (KLR). On the recusal question, the Respondents point out that no Application for recusal had been placed before the learned trial Magistrate at the time the Preliminary Objection was determined, and that the Applicants have since placed that question before the trial Court itself, where, in their submission, it is properly left for determination.
F. ISSUES FOR DETERMINATION
16. Arising from the pleadings, the record and the parties' written submissions, the following issues fall for determination:
(i). whether the citation of Article 50, Article 165(6) of the Constitution, Sections 200 and 306 of the Criminal Procedure Code and Section 146(4) of the Evidence Act as the enabling provisions is fatal to the Application;
(ii). the proper scope of this Court's revisionary jurisdiction under Sections 362 to 367 of the Criminal Procedure Code and Article 165(6) and (7) of the Constitution, and the standard applicable to interference with an interlocutory ruling of a Subordinate Court;
(iii). whether the learned trial Magistrate erred in finding that grounds 1, 4, 5 and 6 of the Preliminary Objection did not raise pure points of law;
(iv). whether the learned trial Magistrate erred in finding that the Subordinate Court's jurisdiction was not ousted by the alleged exclusive jurisdiction of the Environment and Land Court;
(v). whether the contention that the learned trial Magistrate ought to have recused herself, raised for the first time in the Applicants' written submissions, affects the validity of the Ruling of 25th June 2026 or otherwise calls for determination by this Court;
(vi). whether, independently of the grounds pleaded and argued by the parties, the record discloses a more fundamental defect touching on the jurisdiction of the Subordinate Court to entertain Misc. Criminal Application No. E205 of 2026 at all; and
(vii). what orders should issue, including as to costs.
G. ANALYSIS
i. The citation of enabling provisions
17. I address first the Respondents' implicit complaint, and my own observation, that the enabling provisions cited in the Notice of Motion are curious. Article 50 of the Constitution guarantees the right to a fair hearing/fair trial; it is not, of itself, a revisionary provision. Section 200 of the Criminal Procedure Code concerns continuation of proceedings after change of a presiding Magistrate, and Section 306 concerns delivery of judgment by a succeeding Magistrate; neither has any evident bearing on an Application to revise an interlocutory ruling on a preliminary objection. Section 146(4) of the Evidence Act concerns cross-examination on documents. None of these provisions is apt to found the jurisdiction actually being invoked.
18. That said, it is well settled that the mere citation of a wrong or inapt provision does not, without more, deprive a Court of jurisdiction that it otherwise properly has, provided the substance of the relief sought is clear and the correct jurisdiction can be identified from the body of the Application. This Court's revisionary and supervisory jurisdiction over Subordinate Courts is properly anchored in Article 165(6) and (7) of the Constitution and Sections 362 to 367 of the Criminal Procedure Code, both of which were in fact pleaded, Article 165(6) expressly, and Sections 362 to 367 by necessary implication from the relief sought. Guided by Article 159(2)(d) of the Constitution, which enjoins Courts to administer justice without undue regard to procedural technicalities, I decline to strike out the Application on this ground and proceed to consider it on its merits as a properly constituted Application for revision.
(ii) Scope of the revisionary jurisdiction
19. Section 362 of the Criminal Procedure Code empowers the High Court to “call for and examine the record of any criminal proceedings before any Subordinate Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such Subordinate Court.” Section 364 sets out the powers exercisable on revision, including, in the case of an order other than an order of acquittal, the power to “alter or reverse the order.”
20. It is equally well established that revision is not a substitute for an appeal. The revisionary jurisdiction is exceptional and supervisory; it is not an invitation to this Court to re-evaluate evidence or to substitute its own discretion for that of the trial Court merely because another view is possible. The Court will interfere only where the record discloses an error of law, an excess or want of jurisdiction, a material irregularity, or a finding so perverse or improper as to occasion a failure of justice as was decided, and I am persuaded, in the cases of Kyalo v Republic, Criminal Revision E014 of 2021, [2022] KEHC 9887 (KLR) and Gudow & Another v Office of the Director of Public Prosecutions, Criminal Revision E002 of 2025, [2025] KEHC 2299 (KLR). The Respondents' own authorities make the same point forcefully: in Abraham Wafula v Republic [2013] KEHC 2972 (KLR), the High Court held that revision “should not be a substitute for an Appeal whatsoever,” and that it “primarily serves to put right instances where a finding, sentence, order or proceedings of a lower Court are tainted by incorrectness, impropriety, illegality or irregularity”; and in Petroleum Institute of East Africa v Republic & 2 Others [2022] KEHC 12799 (KLR), the Court cautioned that the revisionary jurisdiction should be invoked only where there are glaring acts or omissions requiring correction, and not as a substitute for an appeal. I respectfully agree with, and apply, both authorities. With that standard in mind, I turn to the specific findings impugned.
(iii) Grounds 1, 4, 5 and 6 of the Preliminary Objection
21. 22. The learned trial Magistrate correctly restated the classical test in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696: a preliminary objection is a pure point of law, argued on the assumption that the facts pleaded by the other side are correct, and it does not admit of factual controversy requiring evidence. That formulation was reaffirmed in Oraro v Mbaja [2005] eKLR, which the trial Magistrate also cited, and which cautions against conflating preliminary objections with matters requiring evidentiary interrogation.
22. Grounds 1 (that the Application was fatally defective and misconceived), 4 (that the dispute had already been resolved in SCCOMM No. E421 of 2024), 5 (that no criminal proceedings were pending) and 6 (that the Application was an abuse of process) each, on their face, required an examination of matters of fact: the terms of the settlement (if any) in SCCOMM No. E421 of 2024 and whether it in truth disposed of the security question; whether and to what extent investigations were ongoing before the DCIO; and the surrounding circumstances said to constitute abuse of process. None of these could be resolved by reference to the pleadings alone, on the assumption that the Respondents' averments were true. I find no error, legal or otherwise, in the trial Magistrate's treatment of these grounds. This part of her Ruling was correctly decided and I decline to disturb it. I have considered the Applicants' submissions urging a contrary view, and the Respondents' submissions defending the Ruling on this point in greater detail; neither persuades me to depart from this conclusion.
(iv) The Environment and Land Court jurisdiction objection (grounds 2 and 3)
23. The Applicants' central complaint, repeated and elaborated in their written submissions, is that, because the underlying Application concerns a Certificate of Title, only the Environment and Land Court, exercising the jurisdiction conferred by Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, could entertain it. I do not agree that this is so, for the same reasons given by the trial Magistrate, which I am satisfied are sound in law.
24. The jurisdiction of the Environment and Land Court, as a specialised Court of equal status to the High Court, is a creature of statute and is confined to disputes falling within the classes enumerated in Section 13 of the Environment and Land Court Act — disputes relating to environment and land use planning, title, tenure, boundaries, rates, rents, valuation, compulsory acquisition, and cognate matters. The Supreme Court's affirmation, in Karisa Chengo v Republic [2017] eKLR, of the distinctiveness and exclusivity of the jurisdiction of the specialised Courts cuts both ways: it confirms that the Environment and Land Court's jurisdiction cannot be exercised by other Courts, but equally that it cannot be extended, by mere association with a title document, to disputes that are not in substance land disputes.
25. The test is one of substance over form: Courts look to the true nature of the claim and the relief sought, not to the incidental fact that a document relating to land is involved. Here, the relief sought in Misc. Criminal Application No. E205 of 2026 was not a declaration of ownership, an order for rectification of the register, a determination of boundaries, or any other relief falling within Section 13 of the Environment and Land Court Act. It was, on its face, an order compelling the DCIO Sondu/Soin Sigowet Sub-County and, alternatively, Geoffrey and Leonard Mutai to release physical custody of a document said to be unlawfully withheld following the conclusion of the underlying commercial dispute. That is, in substance, a complaint about the lawfulness of continued official or private retention of property/a document, not a proprietary dispute over land. This is consistent with the Respondents' submissions, which correctly observe that the learned trial Magistrate did not purport to determine the validity of the loan transaction, enforce the commercial agreement between the parties, determine ownership of the suit property, or disturb the judgment in SCCOMM No. E421 of 2024. Her inquiry was confined to whether the specific relief sought before her disclosed a dispute falling within the exclusive jurisdiction of the Environment and Land Court, and she correctly found that it did not. I therefore agree with the trial Magistrate's conclusion that the Application, properly characterised, did not fall within the exclusive jurisdiction of the Environment and Land Court, and that grounds 2 and 3 of the Preliminary Objection, though properly pleaded as points of law, were not made out. No error is disclosed in this part of the Ruling either.
(v) The recusal contention raised in the Applicants' submissions
26. As noted, the Applicants' written submissions raise, for the first time in these proceedings, the contention that the learned trial Magistrate ought to have recused herself from Misc. Criminal Application No. E205 of 2026, having also presided over and determined Kericho SCCOMM No. E421 of 2024 between materially the same parties. I decline to determine this contention, for three reasons.
27. First, it was not a ground of the Notice of Preliminary Objection dated 26th May 2026, and it forms no part of the Ruling of 25th June 2026 now under revision. This Court's revisionary jurisdiction under Section 362 of the Criminal Procedure Code is confined to examining the correctness, legality or propriety of the finding, sentence or order actually made, and the regularity of the proceedings actually conducted; it cannot fault the trial Magistrate for failing to address a recusal Application that was never placed before her. Whatever the merit of the recusal contention, it cannot retrospectively taint a Ruling delivered on a question that was never raised.
28. Second, and in any event, the Respondents' own submissions disclose, and I accept, that the Applicants have since placed the question of recusal before the learned trial Magistrate directly, by way of a separate Application within Misc. Criminal Application No. E205 of 2026 itself, which remains, on the record before me, undetermined. Comity between this Court and the Subordinate Court, and the ordinary principle that a judicial officer's competence to continue hearing a matter is a question properly addressed to that officer in the first instance, subject to review on appeal or revision from an actual determination, counsel strongly against this Court purporting to determine, in this revision and in the first instance, a recusal question the trial Court has not yet had the opportunity to decide.
29. Third, this question is in any event rendered moot by the disposition I reach below. Having found that the Subordinate Court lacked jurisdiction to entertain Misc. Criminal Application No. E205 of 2026 in its entirety, that Application, and every interlocutory Application filed within it, including the pending recusal Application, fall away with it. Should the 1st and 2nd Respondents pursue their grievance afresh in a properly constituted forum, as they remain free to do, any proper concern regarding the impartiality of a particular judicial officer can be raised, and will fall to be determined, in that forum as and when it arises. I make no finding, express or implied, on the merits of the recusal contention.
(vi) A threshold jurisdictional question arising on the face of the record
30. Although the foregoing might ordinarily dispose of the revision against the Applicants, a Court exercising supervisory and revisionary jurisdiction is not confined to the four corners of the grounds argued by the parties where the record itself discloses a graver defect touching on jurisdiction. It is trite that jurisdiction is everything; without it, a Court has no power to make one more step, and want of jurisdiction cannot be cured by the consent or acquiescence of the parties (Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1). It follows, and it is well established, that a Court may, and indeed should, raise a jurisdictional defect suo motu at any stage of the proceedings, including on appeal or revision, even where neither party has raised it (see, in similar vein, Phoenix of E.A. Assurance Company Limited v S.M. Thiga t/a Newspaper Vendor [2019] eKLR).
31. I pause to address the Respondents' submission, advanced with some force and fortified by Abraham Wafula and Petroleum Institute of East Africa, that revision must not become an appeal in disguise, and that a party who merely disagrees with a Subordinate Court's reasoned conclusion cannot dress that disagreement up as revision. I accept that principle without reservation; it is precisely why I have declined to disturb the trial Magistrate's treatment of grounds 1, 4, 5 and 6, and why I have upheld her conclusion on the Environment and Land Court objection. What follows is different in kind. It is not a complaint that the trial Magistrate reached the wrong conclusion on a question properly placed before her; it is that an entirely separate and more fundamental jurisdictional defect exists on the face of the record, one never placed before her at all. As Abraham Wafula itself recognises, “whenever the integrity of any proceeding is put to question, the Revision jurisdiction of the High Court comes into play and may disturb the decision of the lower Court purely in the best interest of justice.” A Subordinate Court's want of jurisdiction over the entirety of the proceedings before it is the paradigm case of an “illegality” within the meaning of Section 362 of the Criminal Procedure Code, not a matter of appellate disagreement, and it is on that footing, and that footing alone, that I proceed to consider it.
32. On my own re-examination of exhibit “BOM-1,” I note that the Notice of Motion dated 16th May 2026, by which David Kipkorir Ruto and Korir Kiplangat Enock invoked the jurisdiction of the Chief Magistrate's Court at Kericho, was expressed to be brought “under Article 40(3) of the Constitution [and] Section 8 of the Magistrates Court Act.” Article 40(3) protects the right to property, including the right not to be arbitrarily deprived of property. Section 8(1) of the Magistrates' Courts Act, 2015 provides that, subject to Article 165(3)(b) of the Constitution and the pecuniary limits in Section 7(1), a Magistrate's Court “shall have jurisdiction to hear and determine Applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.” Critically, however, Section 8(2) confines that jurisdiction: “The Applications contemplated in sub-section (1) shall only relate to the rights guaranteed in Article 25(a) and (b) of the Constitution” — that is, freedom from torture and cruel, inhuman or degrading treatment or punishment, and freedom from slavery, servitude and forced labour.
33. Article 40 is not among the rights listed in Article 25(a) and (b). It follows that Section 8 of the Magistrates' Courts Act, 2015 — the very provision the Respondents (as applicants below) invoked as the foundation of the Subordinate Court's jurisdiction — does not, on its terms, confer jurisdiction on a Magistrate's Court to grant redress for an alleged violation of the right to property under Article 40(3). Original jurisdiction to hear and determine questions concerning the denial, violation, infringement of, or threat to, a right or fundamental freedom in the Bill of Rights generally, as distinct from the narrow Article 25(a)/(b) carve-out committed to Magistrates' Courts, is reserved to the High Court under Article 165(3)(b) of the Constitution, read together with Article 23(1). I have not been referred to, and am not aware of, any other statutory provision that would clothe a Magistrate's Court with jurisdiction to grant the relief sought in Misc. Criminal Application No. E205 of 2026 on the constitutional footing on which it was expressly brought.
34. I have considered whether this difficulty might be answered by treating the Application as one resting instead on the Subordinate Criminal Court's incidental or supervisory jurisdiction over exhibits and property connected with an ongoing investigation, as the trial Magistrate's characterisation reflecting her own reasoning implicitly suggests. Such jurisdiction may well exist in an appropriate case—for instance, where a specific criminal file is open, and a party seeks release of an exhibit properly before that Court in those proceedings. But that is not how the Application before the Subordinate Court was framed, nor is it consistent with Ground 5 of the Preliminary Objection - that no criminal proceedings were in fact pending- a factual matter the trial Magistrate correctly declined to resolve at the preliminary stage precisely because it was contested. The Application was, on its own terms, a freestanding constitutional Application for redress of an alleged Article 40(3) violation, brought under Section 8 of the Magistrates' Courts Act, 2015, and it is on that footing that its jurisdictional competence
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1. Before the Court is the Notice of Motion dated 10th July 2026, filed by the Applicants — The DCIO Sondu/Soin Sigowet Sub-County, Geoffrey Mutai and Leonard Mutai — invoking the revisionary and supervisory jurisdiction of this Court to interrogate the correctness, legality and propriety of the Ruling and Order of the Chief Magistrate's Court at Kericho (Hon. L. Kananu, RM) delivered on 25th June 2026 in Kericho Misc. Criminal Application No. E205 of 2026, dismissing the Applicants' Notice of Preliminary Objection dated 26th May 2026.
2. The Notice of Motion is expressed to be brought “under Article 50 and Article 165(6) of the Constitution of Kenya 2010, Sections 200 and 306 of the Criminal Procedure Code and Section 146(4) of the Evidence Act and all other enabling provisions of the law.”
3. The Application is supported by the affidavit of Benedict Ombati Morata, Advocate, sworn on 10th July 2026, to which are annexed four exhibits marked “BOM-1” to “BOM-4”, namely: (a) the Notice of Motion dated 16th May 2026 by which the Respondents moved the Subordinate Court for release of title; (b) the Judgment of the Kericho Small Claims Court in SCCOMM No. E421 of 2024 delivered on 23rd April 2025; (c) the Applicants' Notice of Preliminary Objection dated 26th May 2026; and (d) the impugned Ruling of 25th June 2026.
4. The 1st and 2nd Respondents opposed the Application by way of Grounds of Opposition dated 17th July 2026.
5. Both parties have since filed written submissions, considerably later than the time granted by this Court and after this Ruling had substantially been prepared on the material then available. Consistent with the Court's obligation, under Article 159(2)(b) and (d) of the Constitution, to determine disputes without undue delay while nonetheless affording the parties a fair hearing, this Ruling has been finalised to take full account of those submissions.
B. BACKGROUND
6. The dispute has its genesis in a commercial arrangement between Korir Kiplangat Enock (2nd Respondent herein) and Geoffrey Mutai and Leonard Mutai (2nd and 3rd Applicants herein), or entities associated with them, concerning the financing of road construction works. It is common ground on the pleadings that sometime between March and April 2023, Korir Kiplangat Enock handed over the original certificate of title to LR NO. KERICHO/CHILCHILLA/FORT TERNAN BLOCK 7(KOISAGAT)/168, registered in the name of his father, David Kipkorir Ruto (1st Respondent), to Geoffrey Mutai and Leonard Mutai as security for the sums advanced.
7. A dispute over the amounts owed under that arrangement was subsequently litigated in the Kericho Small Claims Court in SCCOMM No. E421 of 2024, styled Geoffrey Kiprono Mutai v Lohaso Group Holdings Ltd and Korir Kiplangat Enock. By a judgment delivered on 23rd April 2025, Hon. L. Kananu (sitting in the Small Claims Court) entered judgment on admission under Section 26(1) of the Small Claims Court Act in favour of the Claimant in the sum of Kshs 161,000, together with costs and interest at Court rates, against the Respondents jointly and severally. I note that Leonard Mutai (3rd Applicant herein) is not named as a party to that suit; the record instead identifies Lohaso Group Holdings Ltd and Korir Kiplangat Enock as the Respondents therein. The parties have nonetheless proceeded before both the Subordinate Court and this Court on the common, unchallenged premise that SCCOMM No. E421 of 2024 settled the dispute underlying the security. I proceed on the same premise, without making any finding on the precise legal relationship between Leonard Mutai and Lohaso Group Holdings Ltd, that question not having been placed before me.
8. By a Notice of Motion dated 16th May 2026 brought “under Article 40(3) of the Constitution [and] Section 8 of the Magistrates Court Act,” David Kipkorir Ruto and Korir Kiplangat Enock moved the Chief Magistrate's Court at Kericho, in Misc. Criminal Application No. E205 of 2026, against the DCIO Sondu/Soin Sigowet Sub-County, Geoffrey Mutai and Leonard Mutai, for orders compelling release of the original title deed, which they averred was ultimately surrendered by Geoffrey and Leonard Mutai to the DCIO, and has since been withheld despite demand, allegedly on account of threats of arrest made against Korir Kiplangat Enock.
9. Geoffrey Mutai and Leonard Mutai, as 2nd and 3rd Respondents in that Application, raised a Notice of Preliminary Objection dated 26th May 2026, contending, in substance, that: (i) the Application was fatally defective and misconceived; (ii) the Subordinate Court, being a criminal Court, lacked jurisdiction to entertain what was in essence a claim for acquisition/release of land, a matter reserved to the Environment and Land Court under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act; (iii) the dispute arose from, and had already been determined in, the commercial transaction litigated in SCCOMM No. E421 of 2024; (iv) no criminal proceedings were pending against the Respondents in that Application to warrant production of the title as an exhibit; and (v) the Application was an abuse of process.
10. By a Ruling delivered on 25th June 2026, the learned trial Magistrate dismissed the Preliminary Objection. She held that grounds (i), (iii), (iv) and (v) did not raise pure points of law capable of determination in limine, applying the test in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, but that the jurisdictional objection founded on Article 40(3) and the alleged exclusivity of the Environment and Land Court's jurisdiction (ground (ii)) was properly a point of law fit for preliminary determination. On that point, she found that the Application before her did not seek a determination of ownership, title, boundaries, or occupation of land, but rather concerned the legality of the continued retention of a title document by an investigative agency in the course of a criminal investigation; that this was a matter within the ordinary and supervisory competence of a criminal Court exercising incidental jurisdiction over exhibits and property connected with investigations, and did not fall within the exclusive domain of the Environment and Land Court. She accordingly dismissed the Preliminary Objection with costs to abide the outcome of the main Application, and directed that the substantive Application proceed to hearing, which was fixed for 20th July 2026. .
11. Aggrieved, the Applicants — the DCIO Sondu/Soin Sigowet Sub-County joining as 1st Applicant, with Geoffrey Mutai and Leonard Mutai as 2nd and 3rd Applicants — filed the present revision, seeking, principally, an order calling for the record of the Subordinate Court, an order staying the proceedings in Misc. Criminal Application No. E205 of 2026 pending the hearing of this revision, and an order setting aside the Ruling of 25th June 2026 and upholding the Preliminary Objection. This Court granted the stay order and stayed the Subordinate Court’s proceedings pending this Ruling
C. THE APPLICATION FOR REVISION
12. The Notice of Motion dated 10th July 2026 seeks the following substantive orders:
(a). certification of the Application as urgent, with service dispensed with in the first instance;
(b). a stay of all proceedings in Misc. Criminal Application No. E205 of 2026 pending the hearing and determination of this Application;
(c). an order calling for the lower Court proceedings for perusal and certification as to the legality, correctness and propriety of the order of 25th June 2026;
(d). an order vacating and setting aside the order of 25th June 2026, and substituting therefor an order upholding the Notice of Preliminary Objection dated 26th May 2026; and
(e). costs.
D. THE RESPONDENTS' OPPOSITION
13. The Respondents' Grounds of Opposition dated 17th July 2026 may be summarised as follows: that the Application is incompetent and an abuse of process; that it improperly invites this Court to sit on appeal over the trial Magistrate's reasoning under the guise of revision; that it discloses no illegality, incorrectness or irregularity as contemplated under Sections 362 and 364 of the Criminal Procedure Code; that the trial Magistrate correctly found that the Application before her did not concern ownership, title, occupation, use or possession of land, but the legality of retention of a document by an investigative agency; that the questions relating to SCCOMM No. E421 of 2024, abuse of process and the absence of pending criminal proceedings required interrogation of facts and were correctly deferred to the substantive hearing; that the Applicants have not demonstrated exceptional circumstances warranting interference with the exercise of judicial discretion by the Subordinate Court; and that the Application is premature and calculated to delay the substantive hearing.
E. THE PARTIES' WRITTEN SUBMISSIONS
14. The 2nd and 3rd Applicants' written submissions, dated 7th September 2026 elaborate the grounds already pleaded in the Notice of Preliminary Objection: principally, that the Subordinate Court lacked jurisdiction because the dispute is civil and commercial in character, concerns enforcement of proprietary rights to land, and is accordingly a preserve of the Environment and Land Court under Article 162(2) of the Constitution, Section 26 of the Environment and Land Court Act and Sections 9(a) and (b) of the Magistrates' Courts Act; and that the Preliminary Objection was, in any event, argued throughout on the presumption that the Respondents' pleaded facts were correct, consistently with Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 and Oraro v Mbaja [2005] eKLR. The submissions additionally raise, for the first time in these proceedings, the contention that the learned trial Magistrate ought to have recused herself from Misc. Criminal Application No. E205 of 2026, having also presided over and determined Kericho SCCOMM No. E421 of 2024, relying on the test for apparent bias discussed in Metropolitan Properties Co. (FGC) Ltd v Lannon [1969] 1 QB 577, R v Liverpool City Justices, ex parte Topping [1983] 1 WLR 119, and Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2013] eKLR.
15. The 1st and 2nd Respondents' written submissions, dated 26th August 2026 oppose the Application on the footing that the Applicants have not demonstrated any incorrectness, illegality, impropriety or irregularity in the impugned Ruling within the meaning of Section 362 of the Criminal Procedure Code, and that the relief sought, properly understood, invites this Court to sit on appeal rather than to exercise a discretionary revisionary jurisdiction — a distinction they draw from Abraham Wafula v Republic [2013] KEHC 2972 (KLR) and Petroleum Institute of East Africa v Republic & 2 Others [2022] KEHC 12799 (KLR). On the recusal question, the Respondents point out that no Application for recusal had been placed before the learned trial Magistrate at the time the Preliminary Objection was determined, and that the Applicants have since placed that question before the trial Court itself, where, in their submission, it is properly left for determination.
F. ISSUES FOR DETERMINATION
16. Arising from the pleadings, the record and the parties' written submissions, the following issues fall for determination:
(i). whether the citation of Article 50, Article 165(6) of the Constitution, Sections 200 and 306 of the Criminal Procedure Code and Section 146(4) of the Evidence Act as the enabling provisions is fatal to the Application;
(ii). the proper scope of this Court's revisionary jurisdiction under Sections 362 to 367 of the Criminal Procedure Code and Article 165(6) and (7) of the Constitution, and the standard applicable to interference with an interlocutory ruling of a Subordinate Court;
(iii). whether the learned trial Magistrate erred in finding that grounds 1, 4, 5 and 6 of the Preliminary Objection did not raise pure points of law;
(iv). whether the learned trial Magistrate erred in finding that the Subordinate Court's jurisdiction was not ousted by the alleged exclusive jurisdiction of the Environment and Land Court;
(v). whether the contention that the learned trial Magistrate ought to have recused herself, raised for the first time in the Applicants' written submissions, affects the validity of the Ruling of 25th June 2026 or otherwise calls for determination by this Court;
(vi). whether, independently of the grounds pleaded and argued by the parties, the record discloses a more fundamental defect touching on the jurisdiction of the Subordinate Court to entertain Misc. Criminal Application No. E205 of 2026 at all; and
(vii). what orders should issue, including as to costs.
G. ANALYSIS
i. The citation of enabling provisions
17. I address first the Respondents' implicit complaint, and my own observation, that the enabling provisions cited in the Notice of Motion are curious. Article 50 of the Constitution guarantees the right to a fair hearing/fair trial; it is not, of itself, a revisionary provision. Section 200 of the Criminal Procedure Code concerns continuation of proceedings after change of a presiding Magistrate, and Section 306 concerns delivery of judgment by a succeeding Magistrate; neither has any evident bearing on an Application to revise an interlocutory ruling on a preliminary objection. Section 146(4) of the Evidence Act concerns cross-examination on documents. None of these provisions is apt to found the jurisdiction actually being invoked.
18. That said, it is well settled that the mere citation of a wrong or inapt provision does not, without more, deprive a Court of jurisdiction that it otherwise properly has, provided the substance of the relief sought is clear and the correct jurisdiction can be identified from the body of the Application. This Court's revisionary and supervisory jurisdiction over Subordinate Courts is properly anchored in Article 165(6) and (7) of the Constitution and Sections 362 to 367 of the Criminal Procedure Code, both of which were in fact pleaded, Article 165(6) expressly, and Sections 362 to 367 by necessary implication from the relief sought. Guided by Article 159(2)(d) of the Constitution, which enjoins Courts to administer justice without undue regard to procedural technicalities, I decline to strike out the Application on this ground and proceed to consider it on its merits as a properly constituted Application for revision.
(ii) Scope of the revisionary jurisdiction
19. Section 362 of the Criminal Procedure Code empowers the High Court to “call for and examine the record of any criminal proceedings before any Subordinate Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such Subordinate Court.” Section 364 sets out the powers exercisable on revision, including, in the case of an order other than an order of acquittal, the power to “alter or reverse the order.”
20. It is equally well established that revision is not a substitute for an appeal. The revisionary jurisdiction is exceptional and supervisory; it is not an invitation to this Court to re-evaluate evidence or to substitute its own discretion for that of the trial Court merely because another view is possible. The Court will interfere only where the record discloses an error of law, an excess or want of jurisdiction, a material irregularity, or a finding so perverse or improper as to occasion a failure of justice as was decided, and I am persuaded, in the cases of Kyalo v Republic, Criminal Revision E014 of 2021, [2022] KEHC 9887 (KLR) and Gudow & Another v Office of the Director of Public Prosecutions, Criminal Revision E002 of 2025, [2025] KEHC 2299 (KLR). The Respondents' own authorities make the same point forcefully: in Abraham Wafula v Republic [2013] KEHC 2972 (KLR), the High Court held that revision “should not be a substitute for an Appeal whatsoever,” and that it “primarily serves to put right instances where a finding, sentence, order or proceedings of a lower Court are tainted by incorrectness, impropriety, illegality or irregularity”; and in Petroleum Institute of East Africa v Republic & 2 Others [2022] KEHC 12799 (KLR), the Court cautioned that the revisionary jurisdiction should be invoked only where there are glaring acts or omissions requiring correction, and not as a substitute for an appeal. I respectfully agree with, and apply, both authorities. With that standard in mind, I turn to the specific findings impugned.
(iii) Grounds 1, 4, 5 and 6 of the Preliminary Objection
21. 22. The learned trial Magistrate correctly restated the classical test in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696: a preliminary objection is a pure point of law, argued on the assumption that the facts pleaded by the other side are correct, and it does not admit of factual controversy requiring evidence. That formulation was reaffirmed in Oraro v Mbaja [2005] eKLR, which the trial Magistrate also cited, and which cautions against conflating preliminary objections with matters requiring evidentiary interrogation.
22. Grounds 1 (that the Application was fatally defective and misconceived), 4 (that the dispute had already been resolved in SCCOMM No. E421 of 2024), 5 (that no criminal proceedings were pending) and 6 (that the Application was an abuse of process) each, on their face, required an examination of matters of fact: the terms of the settlement (if any) in SCCOMM No. E421 of 2024 and whether it in truth disposed of the security question; whether and to what extent investigations were ongoing before the DCIO; and the surrounding circumstances said to constitute abuse of process. None of these could be resolved by reference to the pleadings alone, on the assumption that the Respondents' averments were true. I find no error, legal or otherwise, in the trial Magistrate's treatment of these grounds. This part of her Ruling was correctly decided and I decline to disturb it. I have considered the Applicants' submissions urging a contrary view, and the Respondents' submissions defending the Ruling on this point in greater detail; neither persuades me to depart from this conclusion.
(iv) The Environment and Land Court jurisdiction objection (grounds 2 and 3)
23. The Applicants' central complaint, repeated and elaborated in their written submissions, is that, because the underlying Application concerns a Certificate of Title, only the Environment and Land Court, exercising the jurisdiction conferred by Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, could entertain it. I do not agree that this is so, for the same reasons given by the trial Magistrate, which I am satisfied are sound in law.
24. The jurisdiction of the Environment and Land Court, as a specialised Court of equal status to the High Court, is a creature of statute and is confined to disputes falling within the classes enumerated in Section 13 of the Environment and Land Court Act — disputes relating to environment and land use planning, title, tenure, boundaries, rates, rents, valuation, compulsory acquisition, and cognate matters. The Supreme Court's affirmation, in Karisa Chengo v Republic [2017] eKLR, of the distinctiveness and exclusivity of the jurisdiction of the specialised Courts cuts both ways: it confirms that the Environment and Land Court's jurisdiction cannot be exercised by other Courts, but equally that it cannot be extended, by mere association with a title document, to disputes that are not in substance land disputes.
25. The test is one of substance over form: Courts look to the true nature of the claim and the relief sought, not to the incidental fact that a document relating to land is involved. Here, the relief sought in Misc. Criminal Application No. E205 of 2026 was not a declaration of ownership, an order for rectification of the register, a determination of boundaries, or any other relief falling within Section 13 of the Environment and Land Court Act. It was, on its face, an order compelling the DCIO Sondu/Soin Sigowet Sub-County and, alternatively, Geoffrey and Leonard Mutai to release physical custody of a document said to be unlawfully withheld following the conclusion of the underlying commercial dispute. That is, in substance, a complaint about the lawfulness of continued official or private retention of property/a document, not a proprietary dispute over land. This is consistent with the Respondents' submissions, which correctly observe that the learned trial Magistrate did not purport to determine the validity of the loan transaction, enforce the commercial agreement between the parties, determine ownership of the suit property, or disturb the judgment in SCCOMM No. E421 of 2024. Her inquiry was confined to whether the specific relief sought before her disclosed a dispute falling within the exclusive jurisdiction of the Environment and Land Court, and she correctly found that it did not. I therefore agree with the trial Magistrate's conclusion that the Application, properly characterised, did not fall within the exclusive jurisdiction of the Environment and Land Court, and that grounds 2 and 3 of the Preliminary Objection, though properly pleaded as points of law, were not made out. No error is disclosed in this part of the Ruling either.
(v) The recusal contention raised in the Applicants' submissions
26. As noted, the Applicants' written submissions raise, for the first time in these proceedings, the contention that the learned trial Magistrate ought to have recused herself from Misc. Criminal Application No. E205 of 2026, having also presided over and determined Kericho SCCOMM No. E421 of 2024 between materially the same parties. I decline to determine this contention, for three reasons.
27. First, it was not a ground of the Notice of Preliminary Objection dated 26th May 2026, and it forms no part of the Ruling of 25th June 2026 now under revision. This Court's revisionary jurisdiction under Section 362 of the Criminal Procedure Code is confined to examining the correctness, legality or propriety of the finding, sentence or order actually made, and the regularity of the proceedings actually conducted; it cannot fault the trial Magistrate for failing to address a recusal Application that was never placed before her. Whatever the merit of the recusal contention, it cannot retrospectively taint a Ruling delivered on a question that was never raised.
28. Second, and in any event, the Respondents' own submissions disclose, and I accept, that the Applicants have since placed the question of recusal before the learned trial Magistrate directly, by way of a separate Application within Misc. Criminal Application No. E205 of 2026 itself, which remains, on the record before me, undetermined. Comity between this Court and the Subordinate Court, and the ordinary principle that a judicial officer's competence to continue hearing a matter is a question properly addressed to that officer in the first instance, subject to review on appeal or revision from an actual determination, counsel strongly against this Court purporting to determine, in this revision and in the first instance, a recusal question the trial Court has not yet had the opportunity to decide.
29. Third, this question is in any event rendered moot by the disposition I reach below. Having found that the Subordinate Court lacked jurisdiction to entertain Misc. Criminal Application No. E205 of 2026 in its entirety, that Application, and every interlocutory Application filed within it, including the pending recusal Application, fall away with it. Should the 1st and 2nd Respondents pursue their grievance afresh in a properly constituted forum, as they remain free to do, any proper concern regarding the impartiality of a particular judicial officer can be raised, and will fall to be determined, in that forum as and when it arises. I make no finding, express or implied, on the merits of the recusal contention.
(vi) A threshold jurisdictional question arising on the face of the record
30. Although the foregoing might ordinarily dispose of the revision against the Applicants, a Court exercising supervisory and revisionary jurisdiction is not confined to the four corners of the grounds argued by the parties where the record itself discloses a graver defect touching on jurisdiction. It is trite that jurisdiction is everything; without it, a Court has no power to make one more step, and want of jurisdiction cannot be cured by the consent or acquiescence of the parties (Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1). It follows, and it is well established, that a Court may, and indeed should, raise a jurisdictional defect suo motu at any stage of the proceedings, including on appeal or revision, even where neither party has raised it (see, in similar vein, Phoenix of E.A. Assurance Company Limited v S.M. Thiga t/a Newspaper Vendor [2019] eKLR).
31. I pause to address the Respondents' submission, advanced with some force and fortified by Abraham Wafula and Petroleum Institute of East Africa, that revision must not become an appeal in disguise, and that a party who merely disagrees with a Subordinate Court's reasoned conclusion cannot dress that disagreement up as revision. I accept that principle without reservation; it is precisely why I have declined to disturb the trial Magistrate's treatment of grounds 1, 4, 5 and 6, and why I have upheld her conclusion on the Environment and Land Court objection. What follows is different in kind. It is not a complaint that the trial Magistrate reached the wrong conclusion on a question properly placed before her; it is that an entirely separate and more fundamental jurisdictional defect exists on the face of the record, one never placed before her at all. As Abraham Wafula itself recognises, “whenever the integrity of any proceeding is put to question, the Revision jurisdiction of the High Court comes into play and may disturb the decision of the lower Court purely in the best interest of justice.” A Subordinate Court's want of jurisdiction over the entirety of the proceedings before it is the paradigm case of an “illegality” within the meaning of Section 362 of the Criminal Procedure Code, not a matter of appellate disagreement, and it is on that footing, and that footing alone, that I proceed to consider it.
32. On my own re-examination of exhibit “BOM-1,” I note that the Notice of Motion dated 16th May 2026, by which David Kipkorir Ruto and Korir Kiplangat Enock invoked the jurisdiction of the Chief Magistrate's Court at Kericho, was expressed to be brought “under Article 40(3) of the Constitution [and] Section 8 of the Magistrates Court Act.” Article 40(3) protects the right to property, including the right not to be arbitrarily deprived of property. Section 8(1) of the Magistrates' Courts Act, 2015 provides that, subject to Article 165(3)(b) of the Constitution and the pecuniary limits in Section 7(1), a Magistrate's Court “shall have jurisdiction to hear and determine Applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.” Critically, however, Section 8(2) confines that jurisdiction: “The Applications contemplated in sub-section (1) shall only relate to the rights guaranteed in Article 25(a) and (b) of the Constitution” — that is, freedom from torture and cruel, inhuman or degrading treatment or punishment, and freedom from slavery, servitude and forced labour.
33. Article 40 is not among the rights listed in Article 25(a) and (b). It follows that Section 8 of the Magistrates' Courts Act, 2015 — the very provision the Respondents (as applicants below) invoked as the foundation of the Subordinate Court's jurisdiction — does not, on its terms, confer jurisdiction on a Magistrate's Court to grant redress for an alleged violation of the right to property under Article 40(3). Original jurisdiction to hear and determine questions concerning the denial, violation, infringement of, or threat to, a right or fundamental freedom in the Bill of Rights generally, as distinct from the narrow Article 25(a)/(b) carve-out committed to Magistrates' Courts, is reserved to the High Court under Article 165(3)(b) of the Constitution, read together with Article 23(1). I have not been referred to, and am not aware of, any other statutory provision that would clothe a Magistrate's Court with jurisdiction to grant the relief sought in Misc. Criminal Application No. E205 of 2026 on the constitutional footing on which it was expressly brought.
34. I have considered whether this difficulty might be answered by treating the Application as one resting instead on the Subordinate Criminal Court's incidental or supervisory jurisdiction over exhibits and property connected with an ongoing investigation, as the trial Magistrate's characterisation reflecting her own reasoning implicitly suggests. Such jurisdiction may well exist in an appropriate case—for instance, where a specific criminal file is open, and a party seeks release of an exhibit properly before that Court in those proceedings. But that is not how the Application before the Subordinate Court was framed, nor is it consistent with Ground 5 of the Preliminary Objection - that no criminal proceedings were in fact pending- a factual matter the trial Magistrate correctly declined to resolve at the preliminary stage precisely because it was contested. The Application was, on its own terms, a freestanding constitutional Application for redress of an alleged Article 40(3) violation, brought under Section 8 of the Magistrates' Courts Act, 2015, and it is on that footing that its jurisdictional competence
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