1. Contemporaneous with the petition dated 12th February, 2026, the Petitioner herein filed the notice of motion of even date, expressed to be brought under Rules 19, 20, 21, 22, 23 & 258 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, popularly known as the Mutunga Rules, seeking the following orders:
a. [Spent].
b. [Spent].
c. An order directing the Respondents, their agents, servants or officers to forthwith release and restore possession of motor vehicle registration number KCL 986B to the Petitioner and to allow the Petitioner full access to and use of the said motor vehicle pending the determination of the Petition.
d. [Spent].
e. An order granting the Petitioner anticipatory bail and restraining the Respondents, their agents, servants, or officers from arresting, detaining, summoning, or otherwise interfering with the Petitioner's personal liberty in relation to the subject matter of the Petition until the hearing and determination of the Petition. 6. Costs of this Application be provided for.
2. The grounds upon which the petitioner premises his application are that he duly complied with the summons issued to him by the Respondents and has, on several occasions, presented himself before the Court and at Kondele Police Station whenever required, thereby demonstrating his willingness to submit to the due process of the law.
3. The Petitioner further states that despite his continued cooperation with the investigative authorities, no criminal charges have been preferred against him to date and no reasonable explanation has been provided for the inordinate delay in instituting criminal proceedings.
4. The Petitioner asserts that instead of charging him before a court of law as required, the police have persistently extended his police bail while issuing threats of rearrest, thereby subjecting him to intimidation, uncertainty and harassment without the benefit of formal charges or judicial oversight.
5. The Petitioner contends that the continued detention of his motor vehicle without any charge having been preferred against him and without any lawful court order authorizing such detention amounts to an arbitrary deprivation and withholding of his property. He states that the impounded motor vehicle is a commercial asset and that its continued detention since 21st January, 2022 has deprived him of its use, thereby occasioning substantial economic loss, disruption of his business operations and loss of income without lawful justification.
6. The Petitioner further deposes that the continued withholding of the said motor vehicle, coupled with repeated arrests, extension of police bail and the failure to prefer charges, is calculated to frustrate, intimidate and coerce him rather than to advance any legitimate investigative or prosecutorial purpose. He therefore contends that the actions and omissions of the Respondents constitute an abuse of police and administrative power and are unreasonable, unlawful and procedurally unfair, thereby violating his constitutional rights, including the right to property, the right to fair administrative action, the right to human dignity and the right to freedom from arbitrary arrest and detention.
7. The application is supported by the Petitioner’s affidavit sworn on 12th February, 2026.
8. In his supporting affidavit, the Petitioner states that this court has jurisdiction to hear and determine the matter pursuant to Article 23(1) of the Constitution, which empowers the Court to grant appropriate relief in cases involving the denial, violation, infringement or threat to a right or fundamental freedom in the Bill of Rights.
9. The Petitioner states that he is the lawful owner of several motor vehicles, including motor vehicle registration number KCL 986B, which he utilizes in the ordinary course of his business and livelihood. He further states that on 21st January 2022, the said motor vehicle was seized by officers from the 1st Respondent’s Customs and Excise Department, at the border on allegations that it had been used in the conveyance of restricted goods, following which the motor vehicle was impounded and detained at Kondele Police Station in Kisumu County, where it remains to date.
10. He states that on the same date, his employee and driver of the said motor vehicle, one Wahinya Macharia, was arrested and detained at Kondele Police Station and was subsequently released on 22nd January 2022 upon payment of police cash bail of Ksh.50,000/-, with instructions to appear before the Magistrates’ Court at Winam on 8th February, 2022.
11. The Petitioner avers that despite the said appearance and the lapse of considerable time thereafter, no criminal charges have been preferred against the said driver, nor has he been informed of any offence he is alleged to have committed.
12. The Petitioner further states that on 25th February, 2022 he was arrested and detained at Kondele Police Station in connection with the same allegations relating to the motor vehicle, and that he was released on the same day upon payment of police cash bail of Ksh.70,000/- with directions to appear before the Magistrates’ Court at Winam on 2nd March, 2022.
13. The Petitioner contends that he duly complied with the summons and presented himself before the said Court and Police Station on several occasions, demonstrating his willingness to submit himself to the due process of the law. He avers that despite his cooperation with the authorities, no charges have been levelled against him to date and no explanation has been offered for the continued delay.
14. The Petitioner states that instead of instituting criminal proceedings as required by law, the police have persistently extended his police bail and threatened him with re-arrest, thereby subjecting him to uncertainty, intimidation and harassment without the benefit of formal charges or judicial oversight.
15. He further states that the continued detention of his motor vehicle without any charge having been preferred and without any lawful court order amounts to an arbitrary deprivation and withholding of property in contravention of Article 40 of the Constitution.
16. The Petitioner avers that the impounded motor vehicle is a commercial asset and that its prolonged detention since 21st January, 2022, a period of more than 4 years, has deprived him of its use, resulting in substantial economic loss, disruption of his business operations and loss of income.
17. He further states that the continued withholding of the motor vehicle, coupled with repeated arrests, threats of arrests, extension of police bail and failure to prefer charges, is calculated to frustrate, intimidate and coerce him rather than to advance any legitimate investigative or prosecutorial purpose.
18. The Petitioner therefore avers that the actions and omissions of the Respondents constitute an abuse of police and administrative power and are unreasonable, unlawful and procedurally unfair, thereby violating his constitutional rights to property, fair administrative action, human dignity and freedom from arbitrary arrest and detention.
19. The 1st Respondent did not file any response to the application.
20. In their statement of grounds of opposition mainly targeted the petition, the 2nd, 3rd and 4th Respondents state that the Petition is incompetent for failing to meet the constitutional precision threshold established in Anarita Karimi Njeru v Republic 1976 KLR, which requires a Petitioner to plead with reasonable precision the specific constitutional provisions allegedly violated, the manner of the violation and the nexus between each Respondent and the alleged violation. They contend that the Petitioner merely lists constitutional provisions without showing individual violations, rendering the Petition defective and unsustainable.
21. The three Respondents assert that the seizure of Motor Vehicle KCL 986B was lawful and undertaken pursuant to statutory authority vested in the 1st Respondent through its customs enforcement mandate. They state that customs authorities may seize goods suspected to be restricted or prohibited and detain conveyances used in the commission of customs offences pending investigations or forfeiture proceedings. They argue that property reasonably suspected to have been used in an offence is not shielded by the Constitution, making the Petitioner’s reliance on Article 40 of the Constitution misplaced.
22. The three Respondents further submit that the Petition is premature and violates the doctrine of exhaustion, since the Petitioner has not shown that he invoked statutory objection and review mechanisms or challenged the seizure administratively.
23. The 2nd, 3rd and 4th Respondents deny any violation of the Petitioner’s constitutional rights, arguing that Article 49 of the Constitution was not breached because the Petitioner was released on police cash bail, was not detained beyond constitutional timelines and no prolonged custody occurred.
24. They three Respondents contend that the mere failure to charge the Petitioner does not amount to a constitutional violation, as investigative and prosecutorial authorities retain discretion when evidence is insufficient, and this does not infringe on Articles 29, 47 and 50 of the Constitution.
25. The three Respondents argue that the prayer for anticipatory bail is speculative and unmerited, since the Petitioner has not demonstrated any imminent threat of unlawful arrest, harassment or abuse of police power. They maintain that the orders of mandamus and prohibition sought do not meet legal thresholds, as there is no clear statutory duty to release the vehicle, no concluded investigations or forfeiture process and no action outside the Respondents’ statutory mandate.
26. The three Respondents assert that no breach of Article 47 of the Constitution has been established, because the Petitioner has not shown that the administrative action was illegal, irrational or procedurally unfair, nor that he sought reasons or pursued available statutory review mechanisms.
27. The three Respondents assert that the Petition discloses no cause of action against them as there is no specific allegation of their personal involvement in the alleged violations and further contend that the Petition is defeated by inordinate and unexplained delay, noting that the vehicle was seized on 21st January, 2022 while the Petition was filed almost four years later on 12th February, 2026, and argue that delay defeats equity since constitutional remedies are equitable in nature.
28. Finally, the 2nd, 3rd and 4th Respondents contend that the Petition constitutes an abuse of court process, seeking to constitutionalize matters properly falling within customs enforcement and criminal investigative processes, and urge the Court to dismiss the Petition and the application with costs, while declining the request for constitutional damages.
29. The application proceeded by way of brief oral submissions.
30. Learned Counsel for the Petitioner, Mr. Munyiri, submitted that the Petitioner has served the 1st Respondent and that as there was no response filed, the matters deposed to in the Petitioner’s supporting affidavit were uncontested. He sought interim conservatory orders pending the determination of the Petition, relying on the grounds set out in the attendant affidavit.
31. Mr. Munyiri outlined the procedural history, stating that the Petitioner’s driver was arrested on 22nd January, 2022, about four years ago, and that his vehicle was seized and the driver granted cash bail and required to attend court. The Petitioner himself was arrested on 25th January, 2022, and later released on cash bail and required to attend court on 8th February, 2022, where he was informed that no charges had been preferred against him.
32. Mr. Munyiri emphasized that the Petitioner diligently complied with all court requirements and police directives, including attending Winam Court and reporting to the police as requested. Despite this, investigations have continued for over four years without conclusion, making the process arbitrary and procedurally unfair.
33. Counsel further argued that under Section 36A of the Criminal Procedure Code, authorities can seek more time, but it is nonetheless unfair to leave the matter in abeyance indefinitely. He contended that the Petitioner has a legitimate expectation of fair and timely investigations.
34. Regarding the seized vehicle, Mr. Munyiri submitted that it stands to waste and depreciate and is a tool of trade. He argued that conditions can be attached for its release to safeguard the State’s interest, if any, allowing investigations to continue while preventing irreparable loss to the Petitioner.
35. In response to the Petitioner on the issue of anticipatory bail, Mr. Kajo, appearing for the 2nd, 3rd and 4th Respondents, opposed its grant, submitting that there was no imminent threat of arrest and no proof that cash bail had been refunded. He emphasized that even during prior arrests, the Petitioner was not detained beyond 24 hours, and the vehicle seizure issue is governed by statutory procedures and not appropriate for this forum.
36. Mr. Kajo further urged that the Petitioner had not complied with the 30-day notice issued by the Respondent to the Petitioner to make a claim for the vehicle and that the latter could therefore not be heard to claim that its continued detention was unlawful.
37. In rejoinder, Mr. Munyiri reinforced that cash bail was issued and the Petitioner attended court at Winam. He submitted that after four years of apparent inaction, there is now credible threat to the Petitioner’s liberty to justify anticipatory bail or other extraordinary reliefs.
38. Notably, the 2nd, 3rd and 4th Respondents did not file any affidavit to contest the Petitioner’s depositions in his supporting affidavit, but wholly relied on the statement of grounds of opposition. It is instructive from the grounds of opposition that the same are largely directed at the main petition and not the notice of motion.
39. Having considered the petition, the application, the affidavit in support thereof and the grounds of opposition, I will proceed to set out the issues for determination as follows:
a. Whether the Petitioner has established a sufficient case for the release of the seized motor vehicle, KCL 986B.
b. Whether the Petitioner has made out a case for the grant of anticipatory bail.
c. Who should bear the costs of the application.
40. I will now turn to address the first issue, which is whether the Petitioner has established a sufficient case for the release of the seized motor vehicle, KCL 986B.
41. In considering this issue, this Court must examine the circumstances under which the vehicle was seized, including whether it was lawfully impounded, the length of time it has been held and the impact of its continued detention on the Petitioner’s commercial activities and livelihood.
42. The Court must also determine whether the Petitioner has complied with relevant statutory procedures or administrative requirements and, if the vehicle is to be released, the conditions that should be imposed to safeguard the Respondents’ legitimate investigative interests.
43. The constitutional guarantee against arbitrary deprivation of property under Article 40 of the Constitution, provides that no law shall permit the State or any person to arbitrarily deprive a person of property or of any interest in property. Impoundment and prolonged detention of property without lawful justification or a clear statutory basis can amount to an arbitrary deprivation of property, contrary to Article 40 and the right to fair administrative action under Article 47 of the Constitution.
44. In the case of Paris Mutwiri John v Base Commander Maua Traffic Base & another [2021] eKLR, the Court declared impoundment of a vehicle for over two and a half years without lawful justification to be a violation of the Petitioner’s right to property under Article 40, noting that the impoundment was arbitrary and that the Petitioner suffered constitutional injury as a result.
45. Similarly, in Muthike v Divisional Criminal Investigation Officer Industrial Area Police Station & 3 others [2025] KEHC 6424 (KLR), Petition E106 of 2024, the High Court underscored that while law enforcement officers may seize and detain property to facilitate investigations, such powers must be exercised reasonably and not capriciously.
46. Prolonged detention of a vehicle without progressing investigations, preferring charges or explaining how long investigations will continue constitutes, in my view, an arbitrary deprivation of property in violation of Article 40.
47. In the present case, it is uncontested that the Petitioner’s property, Motor Vehicle registration number KCL 986B, has been detained since 21st January, 2022, for over four years, without any charge having been preferred against the Petitioner or any demonstrable progress in criminal investigations. The Respondents have not produced evidence of ongoing investigations that would justify the continued detention of the vehicle, nor have they identified a statutory (or legal) provision that empowers them to hold the vehicle indefinitely. The 1st Respondent, the authority that caused the impoundment, has not filed any response opposing the release of the vehicle in this application, effectively conceding that the detention without progress does not have a legitimate basis.
48. Notably, the 2nd, 3rd and 4th Respondents cannot successfully insist on the continued detention of the vehicle where the party responsible for its initial seizure and detention (the 1st Respondent) has not opposed its release. The police acted merely as custodians of the vehicle on behalf of the 1st Respondent and cannot sustain detention in the absence of a lawful directive.
49. In the case of Republic v OCS, Nairobi Central Police Station & 2 Others; Ex parte Applicant: Sixtus Gitonga Mugo [2020] KEHC 7039 (KLR), the High Court held that arbitrary detention of a vehicle in the absence of charges and absent lawful basis amounts to an abuse of process and violation of the Petitioner’s rights under Articles 40 and 47.
50. In light of the inordinate and unreasonable duration of the vehicle’s detention with no apparent progress toward completion of investigations or prosecution and given the jurisprudence affirming the protection of property rights against arbitrary deprivation, coupled with the fact that the 1st Respondent failed to file a response to the application, I reach the persuasion that the Petitioner has established a case for the release of Motor Vehicle KCL 986B.
51. The second issue for determination is whether the Petitioner has demonstrated an entitlement to anticipatory bail, that is, bail in anticipation of arrest or other interference with his personal liberty, and if so, on what conditions such relief should be granted.
52. This issue requires the Court to assess whether there is a credible or imminent threat of arrest, detention or harassment and whether the Petitioner’s personal liberty is at risk in relation to the subject matter of the Petition. The Court must also consider the propriety and necessity of any conditions that should be attached to the grant of anticipatory bail, balancing the Petitioner’s rights to liberty and due process with the Respondents’ statutory duty to investigate alleged offences.
53. Although anticipatory bail is not expressly provided for in any particular statute the High Court has recognized it as a constitutional remedial mechanism under Article 23(1) of the Constitution and the general right to personal liberty in the Bill of Rights. In Rono v Republic [2025] KEHC 9573 (KLR), the Court observed that while Article 49(1)(h) of the Constitution specifically contemplates bail for an arrested person, anticipatory bail may be granted where there is a real threat of infringement of fundamental rights, especially the right to liberty and freedom from arbitrary arrest under Article 29 of the Constitution.
54. The jurisprudence in our constitutional law emphasizes that anticipatory bail should only be granted where an applicant demonstrates that his or her right to liberty is likely to be compromised or breached by an organ of the State and that the apprehension of arrest is real and not speculative.
55. In the case of Mandiki Luyeye v Republic [2015] KEHC 8074 (KLR), the High Court explained that anticipatory bail is aimed at providing a constitutional remedy where there is a demonstrable threat of rights violation and not merely an expectation or fear of inconvenience from ongoing investigations.
56. This principle has been consistently applied in recent rulings. For example, in Gathomi & 4 others v Director of Criminal Investigations & 2 others [2023] KEHC 20686 (KLR), the Court granted anticipatory bail where it was satisfied that the Applicants’ rights to liberty and security were threatened by a credible likelihood of arrest.
57. Conversely, where the threat of arrest is not real or is speculative, anticipatory bail is not appropriate. In the case of Ng’ang’a v Director of Public Prosecution & 2 others [2025] KEHC 10614 (KLR), an anticipatory bail application was dismissed on the grounds that there was no substantial evidence of imminent rights violations or a plausible threat of arbitrary arrest, especially where the Applicant had already been arrested and afforded bail under the ordinary bail regime, and the claimed apprehension was not grounded in objective facts.
58. The jurisprudence that emerges from the above authorities is that anticipatory bail ought not to be used to obstruct or prematurely interfere with lawful investigative processes where no established risk to the Applicant’s constitutional rights is shown.
59. Applying these principles to the facts of this case, the Petitioner has shown more than speculative fear of arrest. His driver and he were, in fact, previously arrested in 2022 in relation to alleged customs offences and were released on cash bail. More than four years have passed without preferred charges, and the Petitioner has been repeatedly required to report to authorities, which, in the absence of charges, constitutes a sustained restraint on his liberty without the procedural safeguards that attach upon formal arrest and arraignment.
60. This ongoing uncertainty, repeated summons and extensions of police bail and eventual refund of cash bail while the detention of his vehicle continues, coupled with the absence of demonstrable investigative progress cumulatively amount to a credible threat to the Petitioner’s liberty rather than a speculative one.
61. Furthermore, the Respondents have not shown that the Petitioner is merely inconvenienced by ongoing investigations. Instead, the indefinite continuation of purported investigations without resolution after many years, coupled with the persistent threat of re arrest or summons, has no doubt impeded the Petitioner’s ability to live and conduct his affairs without apprehension of infringement of his constitutional rights.
62. Under Rono v Republic and Gathomi & 4 others, such subsisting circumstances that are in this case uncontroverted by affidavit evidence justify the grant of protective relief where the threat to personal liberty is real and palpable.
63. Being of the above findings, I make the following orders with regard to the application dated 12th February, 2026:
a. The Petitioner is hereby granted anticipatory bail and shall to that end execute before the Deputy Registrar of this court a personal bond of Ksh.500,000/- within 5 days from the date of this order, in default of which the order for anticipatory bail shall be deemed to have been denied effective the date of this order.
b. The Petitioner, subject to satisfying order (a) above, shall not be arrested by the Respondents over the subject matter herein, pending the hearing and determination of the instant petition.
c. The Respondents are hereby ordered to release Motor vehicle registration number KCL 986B to the Petitioner after taking photographs of the same and in any event within five (5) days from the date of this order.
d. The Petitioner shall not alienate, sell or in any other way or manner encumber or part with the possession of motor vehicle registration number KCL 986B during the pendency of this petition or without leave of the court.
64. With respect to the issue of costs, it is appropriate to note that the instant application is interlocutory in nature, seeking interim and conservatory orders pending the determination of the main petition. Given that the ultimate determination of the main petition will definitively resolve the parties’ rights and obligations, it is just and equitable that the question of costs in this application should not be addressed in isolation. Accordingly, costs of this application shall abide the outcome of the main petition.
65. The petition will be mentioned on 16th April, 2026 for directions.
DELIVERED (virtually), DATED & SIGNED this 10th day of March, 2026.
JOE M. OMIDO
JUDGE
FOR PETITIONER: Ms. Chepkoyo holding brief for Ms. Munyiri.
FOR 1ST RESPONDENT: No appearance.
FOR 2ND, 3RD & 4TH RESPONDENTS: No appearance.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.
a. [Spent].
b. [Spent].
c. An order directing the Respondents, their agents, servants or officers to forthwith release and restore possession of motor vehicle registration number KCL 986B to the Petitioner and to allow the Petitioner full access to and use of the said motor vehicle pending the determination of the Petition.
d. [Spent].
e. An order granting the Petitioner anticipatory bail and restraining the Respondents, their agents, servants, or officers from arresting, detaining, summoning, or otherwise interfering with the Petitioner's personal liberty in relation to the subject matter of the Petition until the hearing and determination of the Petition. 6. Costs of this Application be provided for.
2. The grounds upon which the petitioner premises his application are that he duly complied with the summons issued to him by the Respondents and has, on several occasions, presented himself before the Court and at Kondele Police Station whenever required, thereby demonstrating his willingness to submit to the due process of the law.
3. The Petitioner further states that despite his continued cooperation with the investigative authorities, no criminal charges have been preferred against him to date and no reasonable explanation has been provided for the inordinate delay in instituting criminal proceedings.
4. The Petitioner asserts that instead of charging him before a court of law as required, the police have persistently extended his police bail while issuing threats of rearrest, thereby subjecting him to intimidation, uncertainty and harassment without the benefit of formal charges or judicial oversight.
5. The Petitioner contends that the continued detention of his motor vehicle without any charge having been preferred against him and without any lawful court order authorizing such detention amounts to an arbitrary deprivation and withholding of his property. He states that the impounded motor vehicle is a commercial asset and that its continued detention since 21st January, 2022 has deprived him of its use, thereby occasioning substantial economic loss, disruption of his business operations and loss of income without lawful justification.
6. The Petitioner further deposes that the continued withholding of the said motor vehicle, coupled with repeated arrests, extension of police bail and the failure to prefer charges, is calculated to frustrate, intimidate and coerce him rather than to advance any legitimate investigative or prosecutorial purpose. He therefore contends that the actions and omissions of the Respondents constitute an abuse of police and administrative power and are unreasonable, unlawful and procedurally unfair, thereby violating his constitutional rights, including the right to property, the right to fair administrative action, the right to human dignity and the right to freedom from arbitrary arrest and detention.
7. The application is supported by the Petitioner’s affidavit sworn on 12th February, 2026.
8. In his supporting affidavit, the Petitioner states that this court has jurisdiction to hear and determine the matter pursuant to Article 23(1) of the Constitution, which empowers the Court to grant appropriate relief in cases involving the denial, violation, infringement or threat to a right or fundamental freedom in the Bill of Rights.
9. The Petitioner states that he is the lawful owner of several motor vehicles, including motor vehicle registration number KCL 986B, which he utilizes in the ordinary course of his business and livelihood. He further states that on 21st January 2022, the said motor vehicle was seized by officers from the 1st Respondent’s Customs and Excise Department, at the border on allegations that it had been used in the conveyance of restricted goods, following which the motor vehicle was impounded and detained at Kondele Police Station in Kisumu County, where it remains to date.
10. He states that on the same date, his employee and driver of the said motor vehicle, one Wahinya Macharia, was arrested and detained at Kondele Police Station and was subsequently released on 22nd January 2022 upon payment of police cash bail of Ksh.50,000/-, with instructions to appear before the Magistrates’ Court at Winam on 8th February, 2022.
11. The Petitioner avers that despite the said appearance and the lapse of considerable time thereafter, no criminal charges have been preferred against the said driver, nor has he been informed of any offence he is alleged to have committed.
12. The Petitioner further states that on 25th February, 2022 he was arrested and detained at Kondele Police Station in connection with the same allegations relating to the motor vehicle, and that he was released on the same day upon payment of police cash bail of Ksh.70,000/- with directions to appear before the Magistrates’ Court at Winam on 2nd March, 2022.
13. The Petitioner contends that he duly complied with the summons and presented himself before the said Court and Police Station on several occasions, demonstrating his willingness to submit himself to the due process of the law. He avers that despite his cooperation with the authorities, no charges have been levelled against him to date and no explanation has been offered for the continued delay.
14. The Petitioner states that instead of instituting criminal proceedings as required by law, the police have persistently extended his police bail and threatened him with re-arrest, thereby subjecting him to uncertainty, intimidation and harassment without the benefit of formal charges or judicial oversight.
15. He further states that the continued detention of his motor vehicle without any charge having been preferred and without any lawful court order amounts to an arbitrary deprivation and withholding of property in contravention of Article 40 of the Constitution.
16. The Petitioner avers that the impounded motor vehicle is a commercial asset and that its prolonged detention since 21st January, 2022, a period of more than 4 years, has deprived him of its use, resulting in substantial economic loss, disruption of his business operations and loss of income.
17. He further states that the continued withholding of the motor vehicle, coupled with repeated arrests, threats of arrests, extension of police bail and failure to prefer charges, is calculated to frustrate, intimidate and coerce him rather than to advance any legitimate investigative or prosecutorial purpose.
18. The Petitioner therefore avers that the actions and omissions of the Respondents constitute an abuse of police and administrative power and are unreasonable, unlawful and procedurally unfair, thereby violating his constitutional rights to property, fair administrative action, human dignity and freedom from arbitrary arrest and detention.
19. The 1st Respondent did not file any response to the application.
20. In their statement of grounds of opposition mainly targeted the petition, the 2nd, 3rd and 4th Respondents state that the Petition is incompetent for failing to meet the constitutional precision threshold established in Anarita Karimi Njeru v Republic 1976 KLR, which requires a Petitioner to plead with reasonable precision the specific constitutional provisions allegedly violated, the manner of the violation and the nexus between each Respondent and the alleged violation. They contend that the Petitioner merely lists constitutional provisions without showing individual violations, rendering the Petition defective and unsustainable.
21. The three Respondents assert that the seizure of Motor Vehicle KCL 986B was lawful and undertaken pursuant to statutory authority vested in the 1st Respondent through its customs enforcement mandate. They state that customs authorities may seize goods suspected to be restricted or prohibited and detain conveyances used in the commission of customs offences pending investigations or forfeiture proceedings. They argue that property reasonably suspected to have been used in an offence is not shielded by the Constitution, making the Petitioner’s reliance on Article 40 of the Constitution misplaced.
22. The three Respondents further submit that the Petition is premature and violates the doctrine of exhaustion, since the Petitioner has not shown that he invoked statutory objection and review mechanisms or challenged the seizure administratively.
23. The 2nd, 3rd and 4th Respondents deny any violation of the Petitioner’s constitutional rights, arguing that Article 49 of the Constitution was not breached because the Petitioner was released on police cash bail, was not detained beyond constitutional timelines and no prolonged custody occurred.
24. They three Respondents contend that the mere failure to charge the Petitioner does not amount to a constitutional violation, as investigative and prosecutorial authorities retain discretion when evidence is insufficient, and this does not infringe on Articles 29, 47 and 50 of the Constitution.
25. The three Respondents argue that the prayer for anticipatory bail is speculative and unmerited, since the Petitioner has not demonstrated any imminent threat of unlawful arrest, harassment or abuse of police power. They maintain that the orders of mandamus and prohibition sought do not meet legal thresholds, as there is no clear statutory duty to release the vehicle, no concluded investigations or forfeiture process and no action outside the Respondents’ statutory mandate.
26. The three Respondents assert that no breach of Article 47 of the Constitution has been established, because the Petitioner has not shown that the administrative action was illegal, irrational or procedurally unfair, nor that he sought reasons or pursued available statutory review mechanisms.
27. The three Respondents assert that the Petition discloses no cause of action against them as there is no specific allegation of their personal involvement in the alleged violations and further contend that the Petition is defeated by inordinate and unexplained delay, noting that the vehicle was seized on 21st January, 2022 while the Petition was filed almost four years later on 12th February, 2026, and argue that delay defeats equity since constitutional remedies are equitable in nature.
28. Finally, the 2nd, 3rd and 4th Respondents contend that the Petition constitutes an abuse of court process, seeking to constitutionalize matters properly falling within customs enforcement and criminal investigative processes, and urge the Court to dismiss the Petition and the application with costs, while declining the request for constitutional damages.
29. The application proceeded by way of brief oral submissions.
30. Learned Counsel for the Petitioner, Mr. Munyiri, submitted that the Petitioner has served the 1st Respondent and that as there was no response filed, the matters deposed to in the Petitioner’s supporting affidavit were uncontested. He sought interim conservatory orders pending the determination of the Petition, relying on the grounds set out in the attendant affidavit.
31. Mr. Munyiri outlined the procedural history, stating that the Petitioner’s driver was arrested on 22nd January, 2022, about four years ago, and that his vehicle was seized and the driver granted cash bail and required to attend court. The Petitioner himself was arrested on 25th January, 2022, and later released on cash bail and required to attend court on 8th February, 2022, where he was informed that no charges had been preferred against him.
32. Mr. Munyiri emphasized that the Petitioner diligently complied with all court requirements and police directives, including attending Winam Court and reporting to the police as requested. Despite this, investigations have continued for over four years without conclusion, making the process arbitrary and procedurally unfair.
33. Counsel further argued that under Section 36A of the Criminal Procedure Code, authorities can seek more time, but it is nonetheless unfair to leave the matter in abeyance indefinitely. He contended that the Petitioner has a legitimate expectation of fair and timely investigations.
34. Regarding the seized vehicle, Mr. Munyiri submitted that it stands to waste and depreciate and is a tool of trade. He argued that conditions can be attached for its release to safeguard the State’s interest, if any, allowing investigations to continue while preventing irreparable loss to the Petitioner.
35. In response to the Petitioner on the issue of anticipatory bail, Mr. Kajo, appearing for the 2nd, 3rd and 4th Respondents, opposed its grant, submitting that there was no imminent threat of arrest and no proof that cash bail had been refunded. He emphasized that even during prior arrests, the Petitioner was not detained beyond 24 hours, and the vehicle seizure issue is governed by statutory procedures and not appropriate for this forum.
36. Mr. Kajo further urged that the Petitioner had not complied with the 30-day notice issued by the Respondent to the Petitioner to make a claim for the vehicle and that the latter could therefore not be heard to claim that its continued detention was unlawful.
37. In rejoinder, Mr. Munyiri reinforced that cash bail was issued and the Petitioner attended court at Winam. He submitted that after four years of apparent inaction, there is now credible threat to the Petitioner’s liberty to justify anticipatory bail or other extraordinary reliefs.
38. Notably, the 2nd, 3rd and 4th Respondents did not file any affidavit to contest the Petitioner’s depositions in his supporting affidavit, but wholly relied on the statement of grounds of opposition. It is instructive from the grounds of opposition that the same are largely directed at the main petition and not the notice of motion.
39. Having considered the petition, the application, the affidavit in support thereof and the grounds of opposition, I will proceed to set out the issues for determination as follows:
a. Whether the Petitioner has established a sufficient case for the release of the seized motor vehicle, KCL 986B.
b. Whether the Petitioner has made out a case for the grant of anticipatory bail.
c. Who should bear the costs of the application.
40. I will now turn to address the first issue, which is whether the Petitioner has established a sufficient case for the release of the seized motor vehicle, KCL 986B.
41. In considering this issue, this Court must examine the circumstances under which the vehicle was seized, including whether it was lawfully impounded, the length of time it has been held and the impact of its continued detention on the Petitioner’s commercial activities and livelihood.
42. The Court must also determine whether the Petitioner has complied with relevant statutory procedures or administrative requirements and, if the vehicle is to be released, the conditions that should be imposed to safeguard the Respondents’ legitimate investigative interests.
43. The constitutional guarantee against arbitrary deprivation of property under Article 40 of the Constitution, provides that no law shall permit the State or any person to arbitrarily deprive a person of property or of any interest in property. Impoundment and prolonged detention of property without lawful justification or a clear statutory basis can amount to an arbitrary deprivation of property, contrary to Article 40 and the right to fair administrative action under Article 47 of the Constitution.
44. In the case of Paris Mutwiri John v Base Commander Maua Traffic Base & another [2021] eKLR, the Court declared impoundment of a vehicle for over two and a half years without lawful justification to be a violation of the Petitioner’s right to property under Article 40, noting that the impoundment was arbitrary and that the Petitioner suffered constitutional injury as a result.
45. Similarly, in Muthike v Divisional Criminal Investigation Officer Industrial Area Police Station & 3 others [2025] KEHC 6424 (KLR), Petition E106 of 2024, the High Court underscored that while law enforcement officers may seize and detain property to facilitate investigations, such powers must be exercised reasonably and not capriciously.
46. Prolonged detention of a vehicle without progressing investigations, preferring charges or explaining how long investigations will continue constitutes, in my view, an arbitrary deprivation of property in violation of Article 40.
47. In the present case, it is uncontested that the Petitioner’s property, Motor Vehicle registration number KCL 986B, has been detained since 21st January, 2022, for over four years, without any charge having been preferred against the Petitioner or any demonstrable progress in criminal investigations. The Respondents have not produced evidence of ongoing investigations that would justify the continued detention of the vehicle, nor have they identified a statutory (or legal) provision that empowers them to hold the vehicle indefinitely. The 1st Respondent, the authority that caused the impoundment, has not filed any response opposing the release of the vehicle in this application, effectively conceding that the detention without progress does not have a legitimate basis.
48. Notably, the 2nd, 3rd and 4th Respondents cannot successfully insist on the continued detention of the vehicle where the party responsible for its initial seizure and detention (the 1st Respondent) has not opposed its release. The police acted merely as custodians of the vehicle on behalf of the 1st Respondent and cannot sustain detention in the absence of a lawful directive.
49. In the case of Republic v OCS, Nairobi Central Police Station & 2 Others; Ex parte Applicant: Sixtus Gitonga Mugo [2020] KEHC 7039 (KLR), the High Court held that arbitrary detention of a vehicle in the absence of charges and absent lawful basis amounts to an abuse of process and violation of the Petitioner’s rights under Articles 40 and 47.
50. In light of the inordinate and unreasonable duration of the vehicle’s detention with no apparent progress toward completion of investigations or prosecution and given the jurisprudence affirming the protection of property rights against arbitrary deprivation, coupled with the fact that the 1st Respondent failed to file a response to the application, I reach the persuasion that the Petitioner has established a case for the release of Motor Vehicle KCL 986B.
51. The second issue for determination is whether the Petitioner has demonstrated an entitlement to anticipatory bail, that is, bail in anticipation of arrest or other interference with his personal liberty, and if so, on what conditions such relief should be granted.
52. This issue requires the Court to assess whether there is a credible or imminent threat of arrest, detention or harassment and whether the Petitioner’s personal liberty is at risk in relation to the subject matter of the Petition. The Court must also consider the propriety and necessity of any conditions that should be attached to the grant of anticipatory bail, balancing the Petitioner’s rights to liberty and due process with the Respondents’ statutory duty to investigate alleged offences.
53. Although anticipatory bail is not expressly provided for in any particular statute the High Court has recognized it as a constitutional remedial mechanism under Article 23(1) of the Constitution and the general right to personal liberty in the Bill of Rights. In Rono v Republic [2025] KEHC 9573 (KLR), the Court observed that while Article 49(1)(h) of the Constitution specifically contemplates bail for an arrested person, anticipatory bail may be granted where there is a real threat of infringement of fundamental rights, especially the right to liberty and freedom from arbitrary arrest under Article 29 of the Constitution.
54. The jurisprudence in our constitutional law emphasizes that anticipatory bail should only be granted where an applicant demonstrates that his or her right to liberty is likely to be compromised or breached by an organ of the State and that the apprehension of arrest is real and not speculative.
55. In the case of Mandiki Luyeye v Republic [2015] KEHC 8074 (KLR), the High Court explained that anticipatory bail is aimed at providing a constitutional remedy where there is a demonstrable threat of rights violation and not merely an expectation or fear of inconvenience from ongoing investigations.
56. This principle has been consistently applied in recent rulings. For example, in Gathomi & 4 others v Director of Criminal Investigations & 2 others [2023] KEHC 20686 (KLR), the Court granted anticipatory bail where it was satisfied that the Applicants’ rights to liberty and security were threatened by a credible likelihood of arrest.
57. Conversely, where the threat of arrest is not real or is speculative, anticipatory bail is not appropriate. In the case of Ng’ang’a v Director of Public Prosecution & 2 others [2025] KEHC 10614 (KLR), an anticipatory bail application was dismissed on the grounds that there was no substantial evidence of imminent rights violations or a plausible threat of arbitrary arrest, especially where the Applicant had already been arrested and afforded bail under the ordinary bail regime, and the claimed apprehension was not grounded in objective facts.
58. The jurisprudence that emerges from the above authorities is that anticipatory bail ought not to be used to obstruct or prematurely interfere with lawful investigative processes where no established risk to the Applicant’s constitutional rights is shown.
59. Applying these principles to the facts of this case, the Petitioner has shown more than speculative fear of arrest. His driver and he were, in fact, previously arrested in 2022 in relation to alleged customs offences and were released on cash bail. More than four years have passed without preferred charges, and the Petitioner has been repeatedly required to report to authorities, which, in the absence of charges, constitutes a sustained restraint on his liberty without the procedural safeguards that attach upon formal arrest and arraignment.
60. This ongoing uncertainty, repeated summons and extensions of police bail and eventual refund of cash bail while the detention of his vehicle continues, coupled with the absence of demonstrable investigative progress cumulatively amount to a credible threat to the Petitioner’s liberty rather than a speculative one.
61. Furthermore, the Respondents have not shown that the Petitioner is merely inconvenienced by ongoing investigations. Instead, the indefinite continuation of purported investigations without resolution after many years, coupled with the persistent threat of re arrest or summons, has no doubt impeded the Petitioner’s ability to live and conduct his affairs without apprehension of infringement of his constitutional rights.
62. Under Rono v Republic and Gathomi & 4 others, such subsisting circumstances that are in this case uncontroverted by affidavit evidence justify the grant of protective relief where the threat to personal liberty is real and palpable.
63. Being of the above findings, I make the following orders with regard to the application dated 12th February, 2026:
a. The Petitioner is hereby granted anticipatory bail and shall to that end execute before the Deputy Registrar of this court a personal bond of Ksh.500,000/- within 5 days from the date of this order, in default of which the order for anticipatory bail shall be deemed to have been denied effective the date of this order.
b. The Petitioner, subject to satisfying order (a) above, shall not be arrested by the Respondents over the subject matter herein, pending the hearing and determination of the instant petition.
c. The Respondents are hereby ordered to release Motor vehicle registration number KCL 986B to the Petitioner after taking photographs of the same and in any event within five (5) days from the date of this order.
d. The Petitioner shall not alienate, sell or in any other way or manner encumber or part with the possession of motor vehicle registration number KCL 986B during the pendency of this petition or without leave of the court.
64. With respect to the issue of costs, it is appropriate to note that the instant application is interlocutory in nature, seeking interim and conservatory orders pending the determination of the main petition. Given that the ultimate determination of the main petition will definitively resolve the parties’ rights and obligations, it is just and equitable that the question of costs in this application should not be addressed in isolation. Accordingly, costs of this application shall abide the outcome of the main petition.
65. The petition will be mentioned on 16th April, 2026 for directions.
DELIVERED (virtually), DATED & SIGNED this 10th day of March, 2026.
JOE M. OMIDO
JUDGE
FOR PETITIONER: Ms. Chepkoyo holding brief for Ms. Munyiri.
FOR 1ST RESPONDENT: No appearance.
FOR 2ND, 3RD & 4TH RESPONDENTS: No appearance.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.