1. The application herein dated 16/6/2025 is for an order for revision of the learned trial magistrate’s orders made on 28/5/2025 in Shanzu Magistrates Courts Miscellaneous Case No. E112 of 2025. The application is expressed to be filed under Articles 43, 50, 165(6) & (7) of the Constitution of Kenya and sections 362 and 364 of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC) and all other enabling provisions of the law.
2. The application prays for an order that this court calls for the record of proceedings and examines the record in Shanzu Chief Magistrate's Court Miscellaneous Criminal Case No. E112 of 2025 (DCI Regional Headquarters Mombasa v Edwin Kyalo Mulandi) and revise, review and/or set aside the orders made on 28th May 2025.
3. The grounds in support of the application as appearing on the face thereof and more expounded in the supporting affidavit of Grace Wanjiru Kamale sowrn on 16/6/2025 are that:
a. the applicants were arraigned before the trial court in Shanzu MC CR MISC No. E107 of 2025 with 4 others on 23rd May 2025 and were thereafter detained for a period of fourteen (14) days to allow the police complete their investigations.
b. On 28th May 2025, one of the Investigating Officers, IP Joseph Ngatia made an application brought under the provisions of sections 118 and 101(1) of the Criminal Procedure Code seeking among other orders to be issued with search warrants allowing free ingress to the accused persons' houses in various parts of Mombasa and Kilifi Counties and collect as exhibits therein any pertinent material evidence found from therein and egress from the premises;
c. The trial court having heard the application ex-parte, allowed the same and ordered the police to egress after sixty (60) days yet the issue of days had not been prayed for.
d. It is the applicant’s contention that the effect of the execution of the order was eviction of the applicants' families from their respective residences.
e. It is further contended that all the household goods including beds and beddings, children clothing, electric gadgets such as kettles and iron boxes were all taken away by the police.
f. As such, the applicants' families were driven out of their homes and have been made destitute. They now depend on friends and well-wishers to survive. Furthermore, the 1st applicant's children have been unable to attend school since they were kicked out on 28th May 2025.
g. It is the applicants’ contention that this action by the police negates the children’s right to basic education and shelter. He contends further that children's clothing, beds and beddings cannot be classified as "exhibits of pertinent material evidence."
h. Consequently, they pray that that the orders sought be granted.
4. The application is made pursuant to this court’s exercise of its supervisory power over subordinate courts as provided for under Article 165(6) and (7) of the constitution which provide as follows:
(6). The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7). For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.
5. In furtherance of the constitutional provision, section 362 CPC enables 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 such subordinate court.”
6. The Court is not obliged to hear the parties on an application for revision but this court directed the applicants to serve the application to give the respondent the opportunity to file a response thereto. The respondent did not file a response but Mr. Ngiri learned prosecution counsel for the respondent appeared and said that it was proper for the court to proceed with the application based on the material on record.
7. Mr. Kirui, learned counsel for the applicants made brief submissions urging the court to grant the prayers in application. Learned counsel reiterated that the pertinent issue is that the orders made on 28/5/2025 by the trial court had the effect of evicting the applicants from their residential houses so that even the children are not going to school now. The families are staying with relatives.
8. He submits further that in criminal law there is no agency relationship between parties such that the families of the accused cannot be their agents so as to suffer for their perceived wrongs. Learned counsel submits that the applicant’s houses are now being occupied by police officers and in the circumstances, the accused persons families are staying with relatives.
9. The issue for determination by this court is the correctness, legality or propriety, of the decision of the learned trial magistrate of 28/5/2025 and also the regularity of the proceedings had before the trial court. In the case of Republic v James Kiarie Mutungei [2017] KEHC 7170 (KLR) the High Court in explaining the ambit of section 362 CPC held that:
“the function of the court under section 362 of the Criminal Procedure Code as read with section 364 is to enable the court to scrutinize and examine the correctness of facts of a subordinate court or tribunal so as to make a finding on legality or propriety. Legality means lawfulness, strict adherence to law, correctness and propriety ordinarily having the same meaning. It can be deduced from this evaluation that the jurisdiction on revision will be invoked where there is a decision by a subordinate court, the decision is not subject of appeal, the grounds of revision must exist against the decision being challenged from the subordinate court. The interference under section 362 by this court on revision can only be justified if the impugned decision is grossly erroneous, to justness appropriateness and suitability to trial. The trial magistrate has not complied with the provisions of the law, the findings made and the decision reached failed to take into account the evidence that there was a misdirection of facts on the face of the record, the parties in the case were not heard or given an opportunity to present the case before the decision or the decision being contested by the aggrieved party was arbitrary amounting to abuse of the court process.”
10. The issue, the subject of this application arises from the court’s decision in complying with Section 118 of the Criminal Procedure Code which provides that:
“Where it is proved on oath to a court or a magistrate that anything upon, with or in respect of which an offence has been committed, or anything which is necessary for the conduct of an investigation into an offence, is, or is reasonably suspected to be, in any place, building, ship, aircraft, vehicle, box or receptacle, the court or a magistrate may by written warrant (called a search warrant) authorize a police officer or a person named in the search warrant to search the place, building, ship, aircraft, vehicle, box or receptacle (which shall be named or described in the warrant) for that thing and, if the thing be found, to seize it and take it before a court having jurisdiction to be dealt with according to law.”
11. Section 118A CPC also provides that an application for a search warrant under section 118 shall be made ex-parte to a magistrate.
12. The trial court in this case acted under the said sections of the law in issuing the search warrant upon being satisfied that there was good cause to do so.
13. The applicants’ problem with the order issued by the trial court is that the same was issued to last for a period of 60 days when this was not part of the prayers in the application. The prayers sought before the trial court were inter alia that:
i. the court to issue to police officers a warrant allowing free ingress to enter and search the premises/house of the 1st, 2nd, 3rd, 4th and 5th respondents located in Mtwapa-Jumba ruins, Utange-One, Mtembeni and Kiembeni, Utange one and Konde and Vescon one in Bamburi respectively and collect as exhibits therein any pertinent material evidence found from therein in relation to the crimes investigated and egress from the premises.
ii. the court to issue the applicant a warrant allowing free ingress and search the vehicles of the respondents situated in the respondents’ premises and vehicles already recovered and detained at Mtwapa Police station and collect any pertinent document as exhibits that may be found therein in relation to crimes investigated and egress.
iii. orders of the court be directed at and be served upon the respondents’ relatives, agents or any other person acting on behalf of the respondents.
iv. the court to make any other order that it may deem fit and just to grant.
14. There was no prayer for the period the search warrant was going to last. However, during prosecution of the application in court, the prosecution counsel asked that the application be allowed for a period of 60 days. The court in its brief ruling stated that prayers 2, 3, 4 of the application was allowed for a period of 6O days from 28/5/2025.
15. Sections 118 and 118A of the CPC do not provide the period within which a warrant of arrest issued under the said sections should last. Considering these provisions of the law, the High Court in the case of Hasan Mohamed v Ethics and Anti-Corruption Commission & another [2018] KEHC 1803 (KLR)said thus:
1. “Over and over again this court has advised that the ex parte orders issued for search warrants should not be open ended. They should not last as long as the investigator wants. There has to be a procedure where the court is given an account on how the search has progressed.
2. Owing to the many complaints arising from the ex parte issuance of search warrants by the Magistrates courts under section 118 and section 121(1) CPC and for proper management of the process, as a Division, we have decided to issue the following guidelines.
a. Upon issuance of the orders under section 118 & 118A of the Criminal Procedure Code the Magistrate must state the duration within which the order shall remain in force.
b. The duration shall not exceed 14 days.
c. The court shall give a return to court date soon after the 14 days for the following purpose.
i. For the Investigator to appraise the court on what he/she has done.
ii. For the affected party to raise any issues it may have.
iii. The court could extend the search warrant by a maximum of 7 days if satisfied of the need to do so.
d. The affected party must be served within 48 hours of the issuance of search warrants.”
16. The High Court went on to observe that those guidelines should assist all parties involved in this delicate issue and further that the direction should be circulated to all Magistrates courts to take note when handling any applications under section 118 and section 121(1) CPC in respect to Anti-corruption and Economic Crimes only.
17. I note the High Court’ direction that the guidelines would only apply to cases of Anti-Corruption and Economic Crimes. The High Court issued those guidelines due to what it observed were many cases being filed under section 118 and 121(1) of the CPC for search warrants just like in the present case. I believe the High Court found it prudent to issue he guidelines as a prudent measure to guide the magistrates courts where there seemed to be a lacuna in the law on the implementation of the said sections of the law. Whereas the said guidelines would seem not binding to courts outside the ones indicated by the High Court, I believe they are a good starting point to interrogate the issue of timelines within which search warrants should be executed because by all reasonable standards they cannot be in force for perpetuity.
18. Take for instance the present case where it is not disputed that since 28/5/2025, the police have literally taken over the residences of the applicants and it is not known when they will leave. They have in the process evicted the occupants of the houses who have not been shown to be connected to the charges facing the applicants in any way.
19. Article 165(7) of the constitutio provides that upon examining the record of the trial court this court may make any order or give any direction it considers appropriate to ensure the fair administration of justice.
20. In my understanding, this constitutional provision expands the remit of this court’s supervisory powers over subordinate courts beyond satisfying itself of the correctness, legality, or propriety of any finding, sentence, or order recorded or passed, and as to the regularity of any proceedings of such subordinate court. My understanding of fair administration of justice is that it involves ensuring individuals are treated fairly throughout the criminal justice system, from arrest to trial and sentencing, and that everyone has access to justice. Fair administration of justice in the circumstances of this case therefore goes beyond the court’s orders to the other agencies involved in the administration of criminal justice.
21. It would appear that the police officers went ahead and conducted the search but then it is the assertion by the applicants that the officers ended up evicting the occupants of the houses searched and occupying them instead for whatever reason. This very serious allegation by the applicants is not discounted in any way by the respondents.
22. Therefore, it cannot be fair administration of justice for one agency, the National Police Service, armed with an order of warrant of search from the court to evict occupants of a house and remain therein without any indication of how long their being there would remain. A warrant of search is not an order of eviction.
23. I find the guidelines issued by the High Court in the case cited above to be practical and not in any way hindering the police in the performance of their duties. Consequently, I will adopt them herein.
24. The police who were issued with the warrant of search have not indicated herein that they have not yet completed the search. Section 122 CPC provides that, “the provisions of subsections (1) and (3) of section 102, and sections 104, 106, 109, 110 and 111, shall, so far as may be, apply to search warrants issued under section 118.” Section 102(3) CPC on its part provides that “a warrant shall remain in force until it is executed or until it is cancelled by the court which issued it.” I believe one month having passed since the search warrant was issued, and in the absence of an indication that the same have not been executed, I find that the period is a reasonable time within which the warrant ought to have been executed.
25. Consequently, in disposal of the application herein, this court issues the following directions:
a. Police Officer No. 240460 IP JOSEPH NGATIA to whom the search warrants were issued shall return the same to the trial court within 3 days of this order.
b. The trial court shall fix a date within seven days from the date of this ruling when IP JOSEPH NGATIA shall appraise the court on what he has done in execution of the search warrant including compliance with section 121(1) CPC by providing to the trial court a full inventory of all the property seized in the search and subject to be detained for purposes of the case.
c. In the event that for any reason IP JOSEPH NGATIA is not available to comply with this order, the same shall be complied with by the current officer in charge of the Directorate of Criminal Investigations Regional offices, Mombasa or Coast Region or from where IP Joseph Ngatia was based at the time he obtained the search warrants.
d. On the same date, any party affected by the search warrant shall be at liberty to raise any issues it may have regarding the process of search with the court.
e. The trial court shall then proceed accordingly under section 102(3) CPC.
26. The trial court file is returned to the Lower Court for further proceedings as directed herein.
27. Mention before the trial court on 3/7/2025.
28. Orders accordingly.
Ruling delivered, dated and signed on Virtual Platform, Teams this 27th day of June 2025
HON. ANDAYI W. F.
JUDGE
In the presence of: -
Kirui for the applicants.
Ngiri for the respondent
Etropia - Court Assistant
2. The application prays for an order that this court calls for the record of proceedings and examines the record in Shanzu Chief Magistrate's Court Miscellaneous Criminal Case No. E112 of 2025 (DCI Regional Headquarters Mombasa v Edwin Kyalo Mulandi) and revise, review and/or set aside the orders made on 28th May 2025.
3. The grounds in support of the application as appearing on the face thereof and more expounded in the supporting affidavit of Grace Wanjiru Kamale sowrn on 16/6/2025 are that:
a. the applicants were arraigned before the trial court in Shanzu MC CR MISC No. E107 of 2025 with 4 others on 23rd May 2025 and were thereafter detained for a period of fourteen (14) days to allow the police complete their investigations.
b. On 28th May 2025, one of the Investigating Officers, IP Joseph Ngatia made an application brought under the provisions of sections 118 and 101(1) of the Criminal Procedure Code seeking among other orders to be issued with search warrants allowing free ingress to the accused persons' houses in various parts of Mombasa and Kilifi Counties and collect as exhibits therein any pertinent material evidence found from therein and egress from the premises;
c. The trial court having heard the application ex-parte, allowed the same and ordered the police to egress after sixty (60) days yet the issue of days had not been prayed for.
d. It is the applicant’s contention that the effect of the execution of the order was eviction of the applicants' families from their respective residences.
e. It is further contended that all the household goods including beds and beddings, children clothing, electric gadgets such as kettles and iron boxes were all taken away by the police.
f. As such, the applicants' families were driven out of their homes and have been made destitute. They now depend on friends and well-wishers to survive. Furthermore, the 1st applicant's children have been unable to attend school since they were kicked out on 28th May 2025.
g. It is the applicants’ contention that this action by the police negates the children’s right to basic education and shelter. He contends further that children's clothing, beds and beddings cannot be classified as "exhibits of pertinent material evidence."
h. Consequently, they pray that that the orders sought be granted.
4. The application is made pursuant to this court’s exercise of its supervisory power over subordinate courts as provided for under Article 165(6) and (7) of the constitution which provide as follows:
(6). The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7). For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.
5. In furtherance of the constitutional provision, section 362 CPC enables 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 such subordinate court.”
6. The Court is not obliged to hear the parties on an application for revision but this court directed the applicants to serve the application to give the respondent the opportunity to file a response thereto. The respondent did not file a response but Mr. Ngiri learned prosecution counsel for the respondent appeared and said that it was proper for the court to proceed with the application based on the material on record.
7. Mr. Kirui, learned counsel for the applicants made brief submissions urging the court to grant the prayers in application. Learned counsel reiterated that the pertinent issue is that the orders made on 28/5/2025 by the trial court had the effect of evicting the applicants from their residential houses so that even the children are not going to school now. The families are staying with relatives.
8. He submits further that in criminal law there is no agency relationship between parties such that the families of the accused cannot be their agents so as to suffer for their perceived wrongs. Learned counsel submits that the applicant’s houses are now being occupied by police officers and in the circumstances, the accused persons families are staying with relatives.
9. The issue for determination by this court is the correctness, legality or propriety, of the decision of the learned trial magistrate of 28/5/2025 and also the regularity of the proceedings had before the trial court. In the case of Republic v James Kiarie Mutungei [2017] KEHC 7170 (KLR) the High Court in explaining the ambit of section 362 CPC held that:
“the function of the court under section 362 of the Criminal Procedure Code as read with section 364 is to enable the court to scrutinize and examine the correctness of facts of a subordinate court or tribunal so as to make a finding on legality or propriety. Legality means lawfulness, strict adherence to law, correctness and propriety ordinarily having the same meaning. It can be deduced from this evaluation that the jurisdiction on revision will be invoked where there is a decision by a subordinate court, the decision is not subject of appeal, the grounds of revision must exist against the decision being challenged from the subordinate court. The interference under section 362 by this court on revision can only be justified if the impugned decision is grossly erroneous, to justness appropriateness and suitability to trial. The trial magistrate has not complied with the provisions of the law, the findings made and the decision reached failed to take into account the evidence that there was a misdirection of facts on the face of the record, the parties in the case were not heard or given an opportunity to present the case before the decision or the decision being contested by the aggrieved party was arbitrary amounting to abuse of the court process.”
10. The issue, the subject of this application arises from the court’s decision in complying with Section 118 of the Criminal Procedure Code which provides that:
“Where it is proved on oath to a court or a magistrate that anything upon, with or in respect of which an offence has been committed, or anything which is necessary for the conduct of an investigation into an offence, is, or is reasonably suspected to be, in any place, building, ship, aircraft, vehicle, box or receptacle, the court or a magistrate may by written warrant (called a search warrant) authorize a police officer or a person named in the search warrant to search the place, building, ship, aircraft, vehicle, box or receptacle (which shall be named or described in the warrant) for that thing and, if the thing be found, to seize it and take it before a court having jurisdiction to be dealt with according to law.”
11. Section 118A CPC also provides that an application for a search warrant under section 118 shall be made ex-parte to a magistrate.
12. The trial court in this case acted under the said sections of the law in issuing the search warrant upon being satisfied that there was good cause to do so.
13. The applicants’ problem with the order issued by the trial court is that the same was issued to last for a period of 60 days when this was not part of the prayers in the application. The prayers sought before the trial court were inter alia that:
i. the court to issue to police officers a warrant allowing free ingress to enter and search the premises/house of the 1st, 2nd, 3rd, 4th and 5th respondents located in Mtwapa-Jumba ruins, Utange-One, Mtembeni and Kiembeni, Utange one and Konde and Vescon one in Bamburi respectively and collect as exhibits therein any pertinent material evidence found from therein in relation to the crimes investigated and egress from the premises.
ii. the court to issue the applicant a warrant allowing free ingress and search the vehicles of the respondents situated in the respondents’ premises and vehicles already recovered and detained at Mtwapa Police station and collect any pertinent document as exhibits that may be found therein in relation to crimes investigated and egress.
iii. orders of the court be directed at and be served upon the respondents’ relatives, agents or any other person acting on behalf of the respondents.
iv. the court to make any other order that it may deem fit and just to grant.
14. There was no prayer for the period the search warrant was going to last. However, during prosecution of the application in court, the prosecution counsel asked that the application be allowed for a period of 60 days. The court in its brief ruling stated that prayers 2, 3, 4 of the application was allowed for a period of 6O days from 28/5/2025.
15. Sections 118 and 118A of the CPC do not provide the period within which a warrant of arrest issued under the said sections should last. Considering these provisions of the law, the High Court in the case of Hasan Mohamed v Ethics and Anti-Corruption Commission & another [2018] KEHC 1803 (KLR)said thus:
1. “Over and over again this court has advised that the ex parte orders issued for search warrants should not be open ended. They should not last as long as the investigator wants. There has to be a procedure where the court is given an account on how the search has progressed.
2. Owing to the many complaints arising from the ex parte issuance of search warrants by the Magistrates courts under section 118 and section 121(1) CPC and for proper management of the process, as a Division, we have decided to issue the following guidelines.
a. Upon issuance of the orders under section 118 & 118A of the Criminal Procedure Code the Magistrate must state the duration within which the order shall remain in force.
b. The duration shall not exceed 14 days.
c. The court shall give a return to court date soon after the 14 days for the following purpose.
i. For the Investigator to appraise the court on what he/she has done.
ii. For the affected party to raise any issues it may have.
iii. The court could extend the search warrant by a maximum of 7 days if satisfied of the need to do so.
d. The affected party must be served within 48 hours of the issuance of search warrants.”
16. The High Court went on to observe that those guidelines should assist all parties involved in this delicate issue and further that the direction should be circulated to all Magistrates courts to take note when handling any applications under section 118 and section 121(1) CPC in respect to Anti-corruption and Economic Crimes only.
17. I note the High Court’ direction that the guidelines would only apply to cases of Anti-Corruption and Economic Crimes. The High Court issued those guidelines due to what it observed were many cases being filed under section 118 and 121(1) of the CPC for search warrants just like in the present case. I believe the High Court found it prudent to issue he guidelines as a prudent measure to guide the magistrates courts where there seemed to be a lacuna in the law on the implementation of the said sections of the law. Whereas the said guidelines would seem not binding to courts outside the ones indicated by the High Court, I believe they are a good starting point to interrogate the issue of timelines within which search warrants should be executed because by all reasonable standards they cannot be in force for perpetuity.
18. Take for instance the present case where it is not disputed that since 28/5/2025, the police have literally taken over the residences of the applicants and it is not known when they will leave. They have in the process evicted the occupants of the houses who have not been shown to be connected to the charges facing the applicants in any way.
19. Article 165(7) of the constitutio provides that upon examining the record of the trial court this court may make any order or give any direction it considers appropriate to ensure the fair administration of justice.
20. In my understanding, this constitutional provision expands the remit of this court’s supervisory powers over subordinate courts beyond satisfying itself of the correctness, legality, or propriety of any finding, sentence, or order recorded or passed, and as to the regularity of any proceedings of such subordinate court. My understanding of fair administration of justice is that it involves ensuring individuals are treated fairly throughout the criminal justice system, from arrest to trial and sentencing, and that everyone has access to justice. Fair administration of justice in the circumstances of this case therefore goes beyond the court’s orders to the other agencies involved in the administration of criminal justice.
21. It would appear that the police officers went ahead and conducted the search but then it is the assertion by the applicants that the officers ended up evicting the occupants of the houses searched and occupying them instead for whatever reason. This very serious allegation by the applicants is not discounted in any way by the respondents.
22. Therefore, it cannot be fair administration of justice for one agency, the National Police Service, armed with an order of warrant of search from the court to evict occupants of a house and remain therein without any indication of how long their being there would remain. A warrant of search is not an order of eviction.
23. I find the guidelines issued by the High Court in the case cited above to be practical and not in any way hindering the police in the performance of their duties. Consequently, I will adopt them herein.
24. The police who were issued with the warrant of search have not indicated herein that they have not yet completed the search. Section 122 CPC provides that, “the provisions of subsections (1) and (3) of section 102, and sections 104, 106, 109, 110 and 111, shall, so far as may be, apply to search warrants issued under section 118.” Section 102(3) CPC on its part provides that “a warrant shall remain in force until it is executed or until it is cancelled by the court which issued it.” I believe one month having passed since the search warrant was issued, and in the absence of an indication that the same have not been executed, I find that the period is a reasonable time within which the warrant ought to have been executed.
25. Consequently, in disposal of the application herein, this court issues the following directions:
a. Police Officer No. 240460 IP JOSEPH NGATIA to whom the search warrants were issued shall return the same to the trial court within 3 days of this order.
b. The trial court shall fix a date within seven days from the date of this ruling when IP JOSEPH NGATIA shall appraise the court on what he has done in execution of the search warrant including compliance with section 121(1) CPC by providing to the trial court a full inventory of all the property seized in the search and subject to be detained for purposes of the case.
c. In the event that for any reason IP JOSEPH NGATIA is not available to comply with this order, the same shall be complied with by the current officer in charge of the Directorate of Criminal Investigations Regional offices, Mombasa or Coast Region or from where IP Joseph Ngatia was based at the time he obtained the search warrants.
d. On the same date, any party affected by the search warrant shall be at liberty to raise any issues it may have regarding the process of search with the court.
e. The trial court shall then proceed accordingly under section 102(3) CPC.
26. The trial court file is returned to the Lower Court for further proceedings as directed herein.
27. Mention before the trial court on 3/7/2025.
28. Orders accordingly.
Ruling delivered, dated and signed on Virtual Platform, Teams this 27th day of June 2025
HON. ANDAYI W. F.
JUDGE
In the presence of: -
Kirui for the applicants.
Ngiri for the respondent
Etropia - Court Assistant