INTRODUCTION
1. This is a Notice of Motion by the applicant seeking to have this court to call for and examine the record in Nairobi CM Criminal Miscellaneous Application No. E2922 of 2026 pursuant to Sections 362 and 364 of the Criminal Procedure Code.
2. The applicant upon the calling up of the lower court file urged the court to consider granting the following orders;-
a). that pending the hearing and determination of the Application, this Honourable Court be pleased to stay and/or suspend the custodial orders issued on 1st July 2026 in Nairobi CM Criminal Miscellaneous Application No. E2922 of 2026 before Hon. Nyangena (SPM). The prayer is now spent the applicant having be released on Friday 3 rd July 2026 following the orders of this court.
b). that this Honourable Court be pleased to revise, vary, and set aside the custodial orders issued on 1st July 2026.
c). this Honourable Court to be pleased to declare that the arrest, search, seizure, inter-county transfer, and incommunicado detention of the Applicant, and the proceedings culminating in the issuance of custodial orders, were unconstitutional, illegal, irregular, and improper.
d). to order her immediate from Pangani Police Station on reasonable bond or on free bond, and in any event to secure her release without condition unless she is lawfully otherwise held ( spent).
e). to order the immediate return of all electronic devices and property seized from the Applicant's residence on 30th June 2026 without lawful authority, being: two (2) Redmi 13 mobile phones (IMEI 862109072596741 and 862109072596758), one (1) Tecno Camon 16 mobile phone, one (1) Tecno Tablet (IMEI 356178930848704), and one (1) Dell Laptop (SNO 78KKL72).
f). to declare that the search and seizure of the Applicant's electronic devices without a valid warrant constituted a violation of Articles 31(b) and (c) of the Constitution, and that any evidence obtained through that unlawful search is inadmissible pursuant to Article 50(4) of the Constitution.
g). Costs of this Application be provided for.
APPLICANT’S CASE
3. The application was anchored on the following grounds;-
A. JURISDICTION
a). This Honourable Court has jurisdiction to examine the record of the subordinate court and to revise any order that appears to have been made illegally, improperly, or in excess of jurisdiction pursuant to Sections 362, 364, and 365 of the Criminal Procedure Code, Cap. 75 of the Laws of Kenya. The revisionary jurisdiction is to be exercised where the subordinate court has: (a) exercised jurisdiction not vested in it by law; (b) acted in the exercise of its jurisdiction illegally or with material irregularity; or (c) committed an error of law resulting in miscarriage of justice.
b). This Honourable Court further possesses superintendence and supervisory jurisdiction over all subordinate courts and tribunals under Article 165(6) and (7) of the Constitution of Kenya, 2010, and is empowered to exercise such supervisory jurisdiction to correct proceedings that are tainted by unconstitutionality or illegality.
B . UNLAWFUL ARREST WITHOUT WARRANT
c). Article 49(1) of the Constitution guarantees, as a minimum, that an arrested person shall be informed promptly, in a language that they understand, of the reason for their arrest; the right to remain silent; the right to communicate with an advocate; and the right to be held only in conditions of dignity consistent with the Constitution. Not one of these rights was accorded to the Applicant upon her arrest in Mombasa on 30th June 2026.
d). The arresting officers did not identify themselves, did not exhibit any warrant of arrest, did not inform the Applicant of the reason for her arrest, and did not permit her to communicate with her advocate or family before bundling her into a motor vehicle and leaving her child unattended. This is corroborated by the unchallenged evidence of her husband and the contemporaneous social media publications demonstrating public ignorance of her whereabouts.
e). Section 29 of the Criminal Procedure Code provides that a police officer may arrest without warrant only in circumstances specifically enumerated therein. No basis for a warrantless arrest in Mombasa has been disclosed or established. The failure to exhibit any warrant of arrest upon or before the moment of arrest constitutes a fundamental breach of both Section 29 of the Criminal Procedure Code and Article 49(1)(a) of the Constitution.
C. UNLAWFUL SEARCH AND SEIZURE
f). Section 118 of the Criminal Procedure Code provides that a search warrant must be obtained from a Magistrate before a search of premises is conducted or property seized therefrom. No search warrant was exhibited to the Applicant, her husband, or any other person at the time of the search on 30th June 2026. The seizure of five electronic devices - two mobile phones, a second phone, a tablet, and a laptop - without prior judicial authorization constitutes a direct violation of Article 31(b) and (c) of the Constitution, which guarantees the right not to have one's home or property searched or one's possessions seized.
g). Article 50(4) of the Constitution provides that evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if its admission would render the trial unfair or would otherwise be detrimental to the administration of justice. Evidence extracted from devices seized without lawful authority is accordingly inadmissible. See: Republic v David Ooga Mokaya, Milimani MCCR/E1161/2024 (19 February 2026) where the court excluded evidence obtained from devices seized without a prior warrant.
D. UNLAWFUL INTER-COUNTY TRANSFER AND INCOMMUNICADO DETENTION
h). Article 49(1)(d) of the Constitution requires that an arrested person must be brought before a court as soon as reasonably possible and in any event within 24 hours of arrest. The Applicant was arrested on 30th June 2026 in Mombasa and presented before the Nairobi Chief Magistrates Court on 1st July 2026 - having been transported from Mombasa to Nairobi without: (i) being booked at the nearest police station in Mombasa; (ii) a lawful movement record; (iii) an opportunity to communicate with her advocate or family. The Police Standing Orders require that a suspect transferred between stations be formally booked out of the originating station and booked into the receiving station with all relevant documentation.
i). The Directorate of Criminal Investigations published news of the Applicant's arrest via its official channels, thereby demonstrating actual knowledge of her custody, while simultaneously withholding her whereabouts from her family. The action by DCI constituted incommunicado detention a practice condemned by Article 49(1)(f) of the Constitution, the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), and the UN Body of Principles for the Protection of All Persons under Any Form of Detention.
E. DEFICIENCY OF THE CUSTODIAL ORDER APPLICATION
j). The standard for obtaining custodial orders pending investigation is well established. In Sudi Oscar Kipchumba v Republic (Through National Cohesion & Integration Commission) [2020] KEHC 3221 (KLR), the High Court held that before a court grants custodial orders, the applicant must demonstrate: (a) that investigations are ongoing and cannot be concluded within the ordinary period; (b) specific and identifiable investigative steps that require the physical detention of the suspect; and (c) compelling reasons why bail or bond conditions would be inadequate to secure the suspect's cooperation and attendance.
k). In Joseph Lendrix Waswa v Republic [2020] eKLR, the court held that detention pending investigations is an exceptional measure of last resort and ought not to be employed as a substitute for diligent investigations or as a mechanism for gathering evidence to justify an arrest already unlawfully effected.
l). The applicant added that the affidavit of CPL Edwin Metto failed to meet the standard set in the cited cases on multiple grounds:
(i) it does not identify specific and concrete investigative steps requiring the Applicant's physical detention;
(ii) it does not demonstrate that bail or bond conditions would be inadequate;
(iii) it does not establish that the Applicant poses a flight risk, is likely to interfere with witnesses, or has previously failed to honour any lawful summons;
(iv) it does not disclose the legal authority under which the search, seizure, and inter-county transfer were conducted; and
(v) it does not disclose the failure to accord the Applicant her rights upon arrest or during her period of detention.
m). The affidavit further failed to disclose any sworn communication or certificate from XCorp (formerly Twitter Inc.) verifying that the X account @sholard_mancity is registered to or was operated by the Applicant. Attribution of online publications without documentary verification from the platform provider is legally insufficient to establish the evidential basis required for custodial detention. See: Republic v David Ooga Mokaya (supra) where the court found that evidence of online publications required formal platform verification.
n). The affidavit additionally failed to acknowledge that the flight data of Private Jet Registration No. T7-BBJ2 (Hex: 500517) is publicly available information broadcast in real time on open-source aviation tracking platforms accessible to any member of the public. The publication of such information cannot, without more, constitute the actus reus or mens rea of the offence of cyber harassment under Section 27(1)(a) of the Computer Misuse and Cyber Crimes Act.
F. FAILURE OF THE SUBORDINATE COURT TO EXERCISE JURISDICTION PROPERLY
o). The learned Magistrate, in granting custodial orders, failed to: (i) inquire into the constitutional violations perpetrated against the Applicant prior to her presentation before court; (ii) interrogate whether the search and seizure of her electronic devices had been conducted with lawful authority; (iii) consider whether less restrictive measures than custodial detention were available and appropriate; and (iv) apply the legal standard in Sudi Oscar Kipchumba (supra) before authorizing detention. These failures rendered the custodial orders the product of an improper and irregular exercise of judicial discretion warranting revision,
p). The subordinate court further proceeded to determine the application in circumstances where the Applicant had effectively been denied equality of arms she had no advocate present, had no knowledge of the application before the court, and was not in a position to present any contrary facts. This violated Article 50(2)(g) and (h) of the Constitution, which guarantee the right to have adequate time and facilities to prepare a defence and to be represented by an advocate.
G. ELECTRONIC EVIDENCE
q). The Applicant relied upon the Certificate of Electronic Evidence prepared pursuant to Section 106B of the Evidence Act, Cap. 80 of the Laws of Kenya, annexing contemporaneous electronic publications demonstrating: (i) that the Directorate of Criminal Investigations publicly acknowledged the Applicant's arrest while withholding her whereabouts from her family; (ii) that her husband publicly sought disclosure of her location through social media; and (iii) that VOCAL Africa formally demanded disclosure of her whereabouts from the National Police Service. According to the applicant these publications establish beyond any reasonable doubt that the Applicant was held incommunicado, and that the material circumstances of her arrest and detention were concealed from both her family and the subordinate court.
r). The applicant maintained that the said electronic evidence was admissible pursuant to Section 106B of the Evidence Act and corroborated the Applicant's contention that she was effectively subjected to incommunicado detention before being produced before Court.
s). Further, that the learned Magistrate was not made aware of these material circumstances when exercising discretion to issue custodial orders.
t). The impugned orders were therefore founded upon incomplete, misleading and insufficient material.
u). According to the applicant the Court failed to safeguard the Applicant's constitutional right to liberty and instead sanctioned detention that was unnecessary, disproportionate and unconstitutional.
4. The applicant urged this court on the basis of the grounds set out above, to find that it was in the interests of justice that this Honourable Court exercises its supervisory powers and reverse the decision by the learned Honorable Magistrate and grant the orders sought.
5. In support of the grounds on the face of the application, the applicant further relied on the supporting affidavit of Halima Ngoche who deponed that she was detained at Pangani Police Station pursuant to custodial orders issued on 1st July 2026,
6. The applicant further deponed that on 30th June 2026, in the early morning hours, together with her husband Mr. Saddam Indimuli, they were awoken by loud and aggressive knocking and banging on the door of their family home at Kazandani area, Mombasa County.
7. According to the applicant upon opening the door, three men, who did not identify themselves, did not produce any warrant of arrest, did not exhibit any search warrant, and did not communicate forcibly entered their home, called out her name, and showed her husband a photograph of her as the reason for their being there.
8. The applicant further deposed that her husband demanded to know who these men were, the reason for their presence, and where they intended to take the applicant and they refused to answer.
9. The deponent further averred that they commanded her to dress and leave with them immediately, without affording her any opportunity to consult a lawyer, communicate with her family, or make arrangements for the welfare of her child.
10. That following the arrest in the circumstances stated she was separated from her minor child, and bundled into a black Subaru motor vehicle.
11. The child was left unattended at the ground floor of their home.
12. The applicant’s husband was told to follow them to Central Police Station.
13. The applicant further deponed that prior to leaving the premises, the said men conducted an unlawful search of their home and seized the following electronic devices, without exhibiting any search warrant or lawful authority:
(a) Two (2) Redmi 13 mobile phones (IMEI: 862109072596741 and 862109072596758);
(b) One (1) Tecno Camon 16 mobile phone;
(c) One (1) Tecno Tablet (IMEI: 356178930848704); and
(d) One (1) Dell Laptop (Serial No. 78KKL72).
14. The applicant went on to state that she was transported from Mombasa to Nairobi by officers of the Serious Crimes Unit of the Directorate of Criminal Investigations and that during the entire journey she was not informed of the specific reason for her arrest, was not permitted to contact any person, and was not informed of any charges against her.
15. She further averred that she was not booked at any police station in Mombasa prior to her transfer.
16. The applicant deponed further that on 1st July 2026 she was presented before the Chief Magistrates Court at Nairobi in CM Criminal Miscellaneous Application No. E2922 of 2026, where the state sought custodial orders for seven (7) days. The learned Magistrate granted three (3) days of custodial detention.
17. She maintained that she was not represented by a lawyer at that hearing and that she was not given adequate time or opportunity to instruct an advocate or to present any response to the application.
18. The applicant further averred that throughout the period from her arrest on 30th June 2026 until her presentation before court on 1st July 2026, her family had no knowledge of her whereabouts.
19. She went on to state that her husband made repeated public appeals through social media seeking information as to where she had been taken to. VOCAL Africa similarly issued public statements demanding that the National Police Service disclose her location.
20. The applicant contended that despite those public appeals, the Directorate of Criminal Investigations had, on its own channels, published information about her arrest whilst simultaneously withholding her whereabouts from the family.
21. According to the applicant she was effectively held incommunicado during the entire period.
22. The applicant in support of her averments annexed are copies of the electronic publications demonstrating her husband's public appeals for information and VOCAL Africa's formal demand for disclosure, together with a Certificate of Electronic Evidence prepared pursuant to Section 106B of the Evidence Act, Cap. 80 of the Laws of Kenya, confirming the authenticity of those electronic records.
23. According to the applicant, had those facts been disclosed to the learned Magistrate at the time of the application for custodial orders, the applicant verily believes that the Court would have appreciated that there had already been serious and continuing constitutional violations in the conduct of her arrest and detention, which required judicial intervention and protection rather than the authorization of further detention.
24. The applicant further posited that the the affidavit sworn by CPL Edwin Metto, upon which the custodial orders were granted, was materially deficient in the following respects:
(a) It did not disclose the legal basis upon which the search of her residence was conducted;
(b) It did not disclose the authority for the seizure of her electronic devices;
(c) It did not disclose the authority for her transportation from Mombasa to Nairobi without any booking record;
(d) It did not disclose that she had been held incommunicado and denied access to counsel or family;
(e) It did not annex any sworn communication or certificate from XCorp confirming that the X account @sholard_mancity was registered to her or was operated by her;
(f) It did not acknowledge that the flight data for Private Jet Registration No. T7-BBJ2 (Hex: 500517) constituted publicly available information on open-source aviation tracking platforms; and
(g) It failed to identify specific investigative steps requiring custodial detention rather than bail or bond conditions.
25. The applicant further urged that this Honourable Court possesses jurisdiction under Sections 362 and 364 of the Criminal Procedure Code, and under Articles 165(6) and (7) of the Constitution of Kenya, 2010, to call for and examine the record of the subordinate court and to revise any order that was made illegally, improperly, or in excess of jurisdiction.
26. According to the applicant unless the impugned custodial orders are revised and that she is released from custody she would continue to suffer unlawful deprivation of liberty, in violation of my constitutional rights under Articles 28, 29, 49, and 50 of the Constitution, for the remainder of the custodial period.
27. The applicant further deposed that the electronic devices seized from her home without lawful authority are protected under Article 31(b) and (c) of the Constitution, and that any evidence derived from those devices is inadmissible pursuant to Article 50(4) of the Constitution of Kenya, and urged this Court to order their immediate return to her.
RESPONDENT’S CASE
28. The respondents in answer to the application and in opposition thereto filed a replying affidavit sworn by No. 80487 CPL EDWIN METTO, a Police Officer currently attached to the Directorate of Criminal Investigations Headquarters.
29. The deponent averred that he is a Police Officer within the meaning of the National Police Service Act No. 11A of 2011 Laws of Kenya based at the Directorate of Criminal Investigations Headquarters, SERIOUS CRIME UNIT, one of the detectives charged with investigations related to the subject matter thus competent and duly authorized to swear the affidavit.
30. The deponent went on to state that he was the officer investigating Criminal case relating to the offence of Cyber Harassment Contrary to Section 27(1)(a) as read with Section 27(2) of Computer Misuse and Cybercrimes act No. 5 of 2018 whereby in the course of investigations the Applicant herein was identified as a person of interest.
31. The deponent admitted that the Applicant was arrested on the 30th day of June 2026 at Kazandani area in Bamburi within Mombasa County and immediately escorted to Nairobi, and subsequently presented to court at Milimani on 1st July 2026 where the court granted custodial orders under Criminal Miscellaneous Application No. E2922 of 2026.
32. He further deponed that on the 2nd day of July 2026 he was informed of the application by the Applicant herein and consequently served with a copy of the same through the Office of the Director of Public Prosecutions.
33. The deponent further stated that on the date of arrest, the following items among others, were seized from the applicant’s residential house i). Redmi mobile phone of IMEI 1: 862109072596741 & IMEI 2: 862109072596758,
ii) Tecno Camon 16 mobile phone of unknown IMEI
iii) Tecno Tablet of IMEI: 356178930848704
iv) Dell laptop of S/No. 78KKL72
v) Three flash discs
34. The officer attached copy of the Inventory of the items seized as confirmation that indeed the items were seized during the arrest of the applicant.
35. The deponent deposed that the matter under investigations is serious in nature and as such it is considered to be a cognizable offence of which the Police may arrest without a warrant as was in the case of the Applicant.
36. According to the investigation officer, the arresting officers relied in the Sections 29(a) of the Criminal Procedure Code Cap. 75 Laws of Kenya as well as Section 58(c) of the National Police Service Act No. 11A of 2011 in effecting the said arrest.
37. The deponent further averred that he was advised by counsel that cyber harassment under Section 27 of the Computer Misuse and Cyber Crimes Act is a cognizable offence.
38. The deponent went on to state that the applicant was suspected, upon reasonable grounds, of having published offensive and harassing content via the X account @sholard_mancity, which targeted a public figure who is symbol of National unity.
39. The offence of cyber harassment is punishable by a term of imprisonment and therefore qualifies as a cognizable offence.
40. The deponent further posited that in Kasina v Attorney General & another [2024] KEHC 7573 (KLR), the High Court held that an arrest without a warrant is lawful where the police have reasonable grounds for taking a person into custody for interrogation on suspicion of commission of a crime, and that "it is not every arrest that amounts to violation of fundamental rights and freedoms".
41. According to the officer there was reasonable suspicion that the electronic gadgets seized during arrest were associated to the social media publications and due to the volatility nature of electronic evidence immediate seizure was necessary and reasonable.
42. The deponent denied that the search and seizure of the Applicant's electronic devices was unlawful citing Section 25 of the Criminal Procedure Code empowers a police officer to search a person arrested, whether with or without a warrant, and to place in safe custody all articles found upon her.
43. The deponent contended that in Kuruma v The Queen [1955] AC 197 , the Privy Council held that the test for admissibility of evidence is whether it is relevant to the matters in issue, and the court is not concerned with how it was obtained. The search conducted upon a lawful arrest is permissible without a warrant, as the law recognizes the exigency of preserving evidence that may be destroyed or concealed.
44. The investigating officer further deposed that he was advised by counsel that the Applicant's reliance on Republic v David Ooga Mokaya (Milimani MCCR/E1161/2024) is misplaced. The deponent posited that the case involved a search of premises where the accused person was not present and where a search warrant was required. In the present case, the search was incidental to a lawful arrest, which is a well-recognized exception to the warrant requirement.
45. The deponent averred that as at the time of filing of Criminal Miscellaneous Application No. E2922 of 2026 investigations were not complete.
46. Consequently, there was no disclosure of evidential material on the grounds that such disclosure would have occasioned serious prejudice on the matter under investigations.
47. The deponent went on to state that the Applicant herein was not charged for any offence and for that reason the investigating officer was not required to disclose evidence before a suspect is formerly charged as suggested in paragraph 13(e) of her Supporting Affidavit but is merely required to demonstrate the reason why she should be held pending conclusion of investigations.
48. The investigation officer went on to state that he had established that the identified X Corp. account was active during the time the Applicant had been taken to custody thereby implying that the account was likely operated by several admins and once released, the Applicant was likely to establish contact with the said persons believed to be accomplices and such contact would occasion potential interference thus the reason why he sought to have the applicant detained pending charge.
49. Further, the deponent averred that flight movement data may be available through open-source, however, flight passenger personal data is not publicly accessible information contrary to the Applicant's averment in paragraph 13(f) of her Supporting Affidavit and for that he maintained that there was reason, and reasonable suspicion that the averred X Corp. user did access sensitive data e.g. passenger flight manifest(s).
50. The investigation officer contended that the Applicant was duly informed of the reason for her arrest and later escorted to Nairobi where the matter is being investigated and booked in at Ruaraka Police station as per the Station's Occurrence Book No. 63 of 30th June 2026 at 2354hrs.
51. According to him, the assertion that the Applicant was unlawfully transported from Mombasa to Nairobi as indicated in paragraph 4 on the Certificate of Urgency is far-fetched, considering that she was presented in court within 24 hours of her arrest.
52. The deponent went on to state that the Police Standing Orders require that an arrested person be brought before court as soon as possible, but not later than twenty-four hours after being arrested and that there is no requirement in law that an arrested person must be booked at the nearest police station before being transferred to another station for purposes of court presentation, provided the arrested person is brought before a court within the twenty-four-hour window.
53. Further, that the Applicant's transfer from Mombasa to Nairobi was necessitated by the nature and seriousness of the offence under investigation, which was a complex cybercrime involving online publications and requiring coordination with the Serious Crimes Unit based in Nairobi.
54. He maintained that the transfer was not intended to prejudice the Applicant but was for the efficient conduct of investigations.
55. The deponent further contended that contrary to the Applicant's allegation of incommunicado detention, she was afforded the opportunity to communicate with her family.
56. The officer further observed that the applicant was also represented by advocates who appeared before the learned Magistrate on her behalf thus the assertion that she was held incommunicado was therefore factually incorrect.
57. The respondents cited the case of Kasina v Attorney General & another where the High Court held that "the fact that the petitioner was released without being charged cannot, on its own, be termed to have been in violation of his fundamental rights and freedoms".
58. The respondents posited that the mere fact that the Applicant was transported from Mombasa to Nairobi does not, by itself, constitute a violation of her constitutional rights, provided she was presented before a court within the statutory time limit.
59. The investigation officer further informed this court that on the 2nd day of July 2026 he sought court orders under Criminal Miscellaneous Application No. E2972 of 2026 seeking orders to conduct forensic examination on the electronic gadgets described in paragraph 4(i-iv) which orders were granted.
60. According to him, the Applicant has not challenged the substance of the custodial orders granted by the learned Magistrate, but has instead focused on alleged procedural irregularities. The custodial orders were granted by the learned Magistrate after considering the application and being satisfied that the Applicant's detention was necessary to facilitate ongoing investigations into a serious offence.
61. He maintained that the three (3) day custodial period granted by the learned Magistrate was appropriate and proportionate in the circumstances.
62. According to the officer the investigation involves complex digital forensic analysis of the Applicant's electronic devices, which could not be completed within a shorter period.
63. Further, the deponent averred that the Applicant's allegations of constitutional violations were unsubstantiated and contradicted by the facts. He added that she had failed to demonstrate that the investigating agencies acted in bad faith or that the search, arrest, transfer, or detention was motivated
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1. This is a Notice of Motion by the applicant seeking to have this court to call for and examine the record in Nairobi CM Criminal Miscellaneous Application No. E2922 of 2026 pursuant to Sections 362 and 364 of the Criminal Procedure Code.
2. The applicant upon the calling up of the lower court file urged the court to consider granting the following orders;-
a). that pending the hearing and determination of the Application, this Honourable Court be pleased to stay and/or suspend the custodial orders issued on 1st July 2026 in Nairobi CM Criminal Miscellaneous Application No. E2922 of 2026 before Hon. Nyangena (SPM). The prayer is now spent the applicant having be released on Friday 3 rd July 2026 following the orders of this court.
b). that this Honourable Court be pleased to revise, vary, and set aside the custodial orders issued on 1st July 2026.
c). this Honourable Court to be pleased to declare that the arrest, search, seizure, inter-county transfer, and incommunicado detention of the Applicant, and the proceedings culminating in the issuance of custodial orders, were unconstitutional, illegal, irregular, and improper.
d). to order her immediate from Pangani Police Station on reasonable bond or on free bond, and in any event to secure her release without condition unless she is lawfully otherwise held ( spent).
e). to order the immediate return of all electronic devices and property seized from the Applicant's residence on 30th June 2026 without lawful authority, being: two (2) Redmi 13 mobile phones (IMEI 862109072596741 and 862109072596758), one (1) Tecno Camon 16 mobile phone, one (1) Tecno Tablet (IMEI 356178930848704), and one (1) Dell Laptop (SNO 78KKL72).
f). to declare that the search and seizure of the Applicant's electronic devices without a valid warrant constituted a violation of Articles 31(b) and (c) of the Constitution, and that any evidence obtained through that unlawful search is inadmissible pursuant to Article 50(4) of the Constitution.
g). Costs of this Application be provided for.
APPLICANT’S CASE
3. The application was anchored on the following grounds;-
A. JURISDICTION
a). This Honourable Court has jurisdiction to examine the record of the subordinate court and to revise any order that appears to have been made illegally, improperly, or in excess of jurisdiction pursuant to Sections 362, 364, and 365 of the Criminal Procedure Code, Cap. 75 of the Laws of Kenya. The revisionary jurisdiction is to be exercised where the subordinate court has: (a) exercised jurisdiction not vested in it by law; (b) acted in the exercise of its jurisdiction illegally or with material irregularity; or (c) committed an error of law resulting in miscarriage of justice.
b). This Honourable Court further possesses superintendence and supervisory jurisdiction over all subordinate courts and tribunals under Article 165(6) and (7) of the Constitution of Kenya, 2010, and is empowered to exercise such supervisory jurisdiction to correct proceedings that are tainted by unconstitutionality or illegality.
B . UNLAWFUL ARREST WITHOUT WARRANT
c). Article 49(1) of the Constitution guarantees, as a minimum, that an arrested person shall be informed promptly, in a language that they understand, of the reason for their arrest; the right to remain silent; the right to communicate with an advocate; and the right to be held only in conditions of dignity consistent with the Constitution. Not one of these rights was accorded to the Applicant upon her arrest in Mombasa on 30th June 2026.
d). The arresting officers did not identify themselves, did not exhibit any warrant of arrest, did not inform the Applicant of the reason for her arrest, and did not permit her to communicate with her advocate or family before bundling her into a motor vehicle and leaving her child unattended. This is corroborated by the unchallenged evidence of her husband and the contemporaneous social media publications demonstrating public ignorance of her whereabouts.
e). Section 29 of the Criminal Procedure Code provides that a police officer may arrest without warrant only in circumstances specifically enumerated therein. No basis for a warrantless arrest in Mombasa has been disclosed or established. The failure to exhibit any warrant of arrest upon or before the moment of arrest constitutes a fundamental breach of both Section 29 of the Criminal Procedure Code and Article 49(1)(a) of the Constitution.
C. UNLAWFUL SEARCH AND SEIZURE
f). Section 118 of the Criminal Procedure Code provides that a search warrant must be obtained from a Magistrate before a search of premises is conducted or property seized therefrom. No search warrant was exhibited to the Applicant, her husband, or any other person at the time of the search on 30th June 2026. The seizure of five electronic devices - two mobile phones, a second phone, a tablet, and a laptop - without prior judicial authorization constitutes a direct violation of Article 31(b) and (c) of the Constitution, which guarantees the right not to have one's home or property searched or one's possessions seized.
g). Article 50(4) of the Constitution provides that evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if its admission would render the trial unfair or would otherwise be detrimental to the administration of justice. Evidence extracted from devices seized without lawful authority is accordingly inadmissible. See: Republic v David Ooga Mokaya, Milimani MCCR/E1161/2024 (19 February 2026) where the court excluded evidence obtained from devices seized without a prior warrant.
D. UNLAWFUL INTER-COUNTY TRANSFER AND INCOMMUNICADO DETENTION
h). Article 49(1)(d) of the Constitution requires that an arrested person must be brought before a court as soon as reasonably possible and in any event within 24 hours of arrest. The Applicant was arrested on 30th June 2026 in Mombasa and presented before the Nairobi Chief Magistrates Court on 1st July 2026 - having been transported from Mombasa to Nairobi without: (i) being booked at the nearest police station in Mombasa; (ii) a lawful movement record; (iii) an opportunity to communicate with her advocate or family. The Police Standing Orders require that a suspect transferred between stations be formally booked out of the originating station and booked into the receiving station with all relevant documentation.
i). The Directorate of Criminal Investigations published news of the Applicant's arrest via its official channels, thereby demonstrating actual knowledge of her custody, while simultaneously withholding her whereabouts from her family. The action by DCI constituted incommunicado detention a practice condemned by Article 49(1)(f) of the Constitution, the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), and the UN Body of Principles for the Protection of All Persons under Any Form of Detention.
E. DEFICIENCY OF THE CUSTODIAL ORDER APPLICATION
j). The standard for obtaining custodial orders pending investigation is well established. In Sudi Oscar Kipchumba v Republic (Through National Cohesion & Integration Commission) [2020] KEHC 3221 (KLR), the High Court held that before a court grants custodial orders, the applicant must demonstrate: (a) that investigations are ongoing and cannot be concluded within the ordinary period; (b) specific and identifiable investigative steps that require the physical detention of the suspect; and (c) compelling reasons why bail or bond conditions would be inadequate to secure the suspect's cooperation and attendance.
k). In Joseph Lendrix Waswa v Republic [2020] eKLR, the court held that detention pending investigations is an exceptional measure of last resort and ought not to be employed as a substitute for diligent investigations or as a mechanism for gathering evidence to justify an arrest already unlawfully effected.
l). The applicant added that the affidavit of CPL Edwin Metto failed to meet the standard set in the cited cases on multiple grounds:
(i) it does not identify specific and concrete investigative steps requiring the Applicant's physical detention;
(ii) it does not demonstrate that bail or bond conditions would be inadequate;
(iii) it does not establish that the Applicant poses a flight risk, is likely to interfere with witnesses, or has previously failed to honour any lawful summons;
(iv) it does not disclose the legal authority under which the search, seizure, and inter-county transfer were conducted; and
(v) it does not disclose the failure to accord the Applicant her rights upon arrest or during her period of detention.
m). The affidavit further failed to disclose any sworn communication or certificate from XCorp (formerly Twitter Inc.) verifying that the X account @sholard_mancity is registered to or was operated by the Applicant. Attribution of online publications without documentary verification from the platform provider is legally insufficient to establish the evidential basis required for custodial detention. See: Republic v David Ooga Mokaya (supra) where the court found that evidence of online publications required formal platform verification.
n). The affidavit additionally failed to acknowledge that the flight data of Private Jet Registration No. T7-BBJ2 (Hex: 500517) is publicly available information broadcast in real time on open-source aviation tracking platforms accessible to any member of the public. The publication of such information cannot, without more, constitute the actus reus or mens rea of the offence of cyber harassment under Section 27(1)(a) of the Computer Misuse and Cyber Crimes Act.
F. FAILURE OF THE SUBORDINATE COURT TO EXERCISE JURISDICTION PROPERLY
o). The learned Magistrate, in granting custodial orders, failed to: (i) inquire into the constitutional violations perpetrated against the Applicant prior to her presentation before court; (ii) interrogate whether the search and seizure of her electronic devices had been conducted with lawful authority; (iii) consider whether less restrictive measures than custodial detention were available and appropriate; and (iv) apply the legal standard in Sudi Oscar Kipchumba (supra) before authorizing detention. These failures rendered the custodial orders the product of an improper and irregular exercise of judicial discretion warranting revision,
p). The subordinate court further proceeded to determine the application in circumstances where the Applicant had effectively been denied equality of arms she had no advocate present, had no knowledge of the application before the court, and was not in a position to present any contrary facts. This violated Article 50(2)(g) and (h) of the Constitution, which guarantee the right to have adequate time and facilities to prepare a defence and to be represented by an advocate.
G. ELECTRONIC EVIDENCE
q). The Applicant relied upon the Certificate of Electronic Evidence prepared pursuant to Section 106B of the Evidence Act, Cap. 80 of the Laws of Kenya, annexing contemporaneous electronic publications demonstrating: (i) that the Directorate of Criminal Investigations publicly acknowledged the Applicant's arrest while withholding her whereabouts from her family; (ii) that her husband publicly sought disclosure of her location through social media; and (iii) that VOCAL Africa formally demanded disclosure of her whereabouts from the National Police Service. According to the applicant these publications establish beyond any reasonable doubt that the Applicant was held incommunicado, and that the material circumstances of her arrest and detention were concealed from both her family and the subordinate court.
r). The applicant maintained that the said electronic evidence was admissible pursuant to Section 106B of the Evidence Act and corroborated the Applicant's contention that she was effectively subjected to incommunicado detention before being produced before Court.
s). Further, that the learned Magistrate was not made aware of these material circumstances when exercising discretion to issue custodial orders.
t). The impugned orders were therefore founded upon incomplete, misleading and insufficient material.
u). According to the applicant the Court failed to safeguard the Applicant's constitutional right to liberty and instead sanctioned detention that was unnecessary, disproportionate and unconstitutional.
4. The applicant urged this court on the basis of the grounds set out above, to find that it was in the interests of justice that this Honourable Court exercises its supervisory powers and reverse the decision by the learned Honorable Magistrate and grant the orders sought.
5. In support of the grounds on the face of the application, the applicant further relied on the supporting affidavit of Halima Ngoche who deponed that she was detained at Pangani Police Station pursuant to custodial orders issued on 1st July 2026,
6. The applicant further deponed that on 30th June 2026, in the early morning hours, together with her husband Mr. Saddam Indimuli, they were awoken by loud and aggressive knocking and banging on the door of their family home at Kazandani area, Mombasa County.
7. According to the applicant upon opening the door, three men, who did not identify themselves, did not produce any warrant of arrest, did not exhibit any search warrant, and did not communicate forcibly entered their home, called out her name, and showed her husband a photograph of her as the reason for their being there.
8. The applicant further deposed that her husband demanded to know who these men were, the reason for their presence, and where they intended to take the applicant and they refused to answer.
9. The deponent further averred that they commanded her to dress and leave with them immediately, without affording her any opportunity to consult a lawyer, communicate with her family, or make arrangements for the welfare of her child.
10. That following the arrest in the circumstances stated she was separated from her minor child, and bundled into a black Subaru motor vehicle.
11. The child was left unattended at the ground floor of their home.
12. The applicant’s husband was told to follow them to Central Police Station.
13. The applicant further deponed that prior to leaving the premises, the said men conducted an unlawful search of their home and seized the following electronic devices, without exhibiting any search warrant or lawful authority:
(a) Two (2) Redmi 13 mobile phones (IMEI: 862109072596741 and 862109072596758);
(b) One (1) Tecno Camon 16 mobile phone;
(c) One (1) Tecno Tablet (IMEI: 356178930848704); and
(d) One (1) Dell Laptop (Serial No. 78KKL72).
14. The applicant went on to state that she was transported from Mombasa to Nairobi by officers of the Serious Crimes Unit of the Directorate of Criminal Investigations and that during the entire journey she was not informed of the specific reason for her arrest, was not permitted to contact any person, and was not informed of any charges against her.
15. She further averred that she was not booked at any police station in Mombasa prior to her transfer.
16. The applicant deponed further that on 1st July 2026 she was presented before the Chief Magistrates Court at Nairobi in CM Criminal Miscellaneous Application No. E2922 of 2026, where the state sought custodial orders for seven (7) days. The learned Magistrate granted three (3) days of custodial detention.
17. She maintained that she was not represented by a lawyer at that hearing and that she was not given adequate time or opportunity to instruct an advocate or to present any response to the application.
18. The applicant further averred that throughout the period from her arrest on 30th June 2026 until her presentation before court on 1st July 2026, her family had no knowledge of her whereabouts.
19. She went on to state that her husband made repeated public appeals through social media seeking information as to where she had been taken to. VOCAL Africa similarly issued public statements demanding that the National Police Service disclose her location.
20. The applicant contended that despite those public appeals, the Directorate of Criminal Investigations had, on its own channels, published information about her arrest whilst simultaneously withholding her whereabouts from the family.
21. According to the applicant she was effectively held incommunicado during the entire period.
22. The applicant in support of her averments annexed are copies of the electronic publications demonstrating her husband's public appeals for information and VOCAL Africa's formal demand for disclosure, together with a Certificate of Electronic Evidence prepared pursuant to Section 106B of the Evidence Act, Cap. 80 of the Laws of Kenya, confirming the authenticity of those electronic records.
23. According to the applicant, had those facts been disclosed to the learned Magistrate at the time of the application for custodial orders, the applicant verily believes that the Court would have appreciated that there had already been serious and continuing constitutional violations in the conduct of her arrest and detention, which required judicial intervention and protection rather than the authorization of further detention.
24. The applicant further posited that the the affidavit sworn by CPL Edwin Metto, upon which the custodial orders were granted, was materially deficient in the following respects:
(a) It did not disclose the legal basis upon which the search of her residence was conducted;
(b) It did not disclose the authority for the seizure of her electronic devices;
(c) It did not disclose the authority for her transportation from Mombasa to Nairobi without any booking record;
(d) It did not disclose that she had been held incommunicado and denied access to counsel or family;
(e) It did not annex any sworn communication or certificate from XCorp confirming that the X account @sholard_mancity was registered to her or was operated by her;
(f) It did not acknowledge that the flight data for Private Jet Registration No. T7-BBJ2 (Hex: 500517) constituted publicly available information on open-source aviation tracking platforms; and
(g) It failed to identify specific investigative steps requiring custodial detention rather than bail or bond conditions.
25. The applicant further urged that this Honourable Court possesses jurisdiction under Sections 362 and 364 of the Criminal Procedure Code, and under Articles 165(6) and (7) of the Constitution of Kenya, 2010, to call for and examine the record of the subordinate court and to revise any order that was made illegally, improperly, or in excess of jurisdiction.
26. According to the applicant unless the impugned custodial orders are revised and that she is released from custody she would continue to suffer unlawful deprivation of liberty, in violation of my constitutional rights under Articles 28, 29, 49, and 50 of the Constitution, for the remainder of the custodial period.
27. The applicant further deposed that the electronic devices seized from her home without lawful authority are protected under Article 31(b) and (c) of the Constitution, and that any evidence derived from those devices is inadmissible pursuant to Article 50(4) of the Constitution of Kenya, and urged this Court to order their immediate return to her.
RESPONDENT’S CASE
28. The respondents in answer to the application and in opposition thereto filed a replying affidavit sworn by No. 80487 CPL EDWIN METTO, a Police Officer currently attached to the Directorate of Criminal Investigations Headquarters.
29. The deponent averred that he is a Police Officer within the meaning of the National Police Service Act No. 11A of 2011 Laws of Kenya based at the Directorate of Criminal Investigations Headquarters, SERIOUS CRIME UNIT, one of the detectives charged with investigations related to the subject matter thus competent and duly authorized to swear the affidavit.
30. The deponent went on to state that he was the officer investigating Criminal case relating to the offence of Cyber Harassment Contrary to Section 27(1)(a) as read with Section 27(2) of Computer Misuse and Cybercrimes act No. 5 of 2018 whereby in the course of investigations the Applicant herein was identified as a person of interest.
31. The deponent admitted that the Applicant was arrested on the 30th day of June 2026 at Kazandani area in Bamburi within Mombasa County and immediately escorted to Nairobi, and subsequently presented to court at Milimani on 1st July 2026 where the court granted custodial orders under Criminal Miscellaneous Application No. E2922 of 2026.
32. He further deponed that on the 2nd day of July 2026 he was informed of the application by the Applicant herein and consequently served with a copy of the same through the Office of the Director of Public Prosecutions.
33. The deponent further stated that on the date of arrest, the following items among others, were seized from the applicant’s residential house i). Redmi mobile phone of IMEI 1: 862109072596741 & IMEI 2: 862109072596758,
ii) Tecno Camon 16 mobile phone of unknown IMEI
iii) Tecno Tablet of IMEI: 356178930848704
iv) Dell laptop of S/No. 78KKL72
v) Three flash discs
34. The officer attached copy of the Inventory of the items seized as confirmation that indeed the items were seized during the arrest of the applicant.
35. The deponent deposed that the matter under investigations is serious in nature and as such it is considered to be a cognizable offence of which the Police may arrest without a warrant as was in the case of the Applicant.
36. According to the investigation officer, the arresting officers relied in the Sections 29(a) of the Criminal Procedure Code Cap. 75 Laws of Kenya as well as Section 58(c) of the National Police Service Act No. 11A of 2011 in effecting the said arrest.
37. The deponent further averred that he was advised by counsel that cyber harassment under Section 27 of the Computer Misuse and Cyber Crimes Act is a cognizable offence.
38. The deponent went on to state that the applicant was suspected, upon reasonable grounds, of having published offensive and harassing content via the X account @sholard_mancity, which targeted a public figure who is symbol of National unity.
39. The offence of cyber harassment is punishable by a term of imprisonment and therefore qualifies as a cognizable offence.
40. The deponent further posited that in Kasina v Attorney General & another [2024] KEHC 7573 (KLR), the High Court held that an arrest without a warrant is lawful where the police have reasonable grounds for taking a person into custody for interrogation on suspicion of commission of a crime, and that "it is not every arrest that amounts to violation of fundamental rights and freedoms".
41. According to the officer there was reasonable suspicion that the electronic gadgets seized during arrest were associated to the social media publications and due to the volatility nature of electronic evidence immediate seizure was necessary and reasonable.
42. The deponent denied that the search and seizure of the Applicant's electronic devices was unlawful citing Section 25 of the Criminal Procedure Code empowers a police officer to search a person arrested, whether with or without a warrant, and to place in safe custody all articles found upon her.
43. The deponent contended that in Kuruma v The Queen [1955] AC 197 , the Privy Council held that the test for admissibility of evidence is whether it is relevant to the matters in issue, and the court is not concerned with how it was obtained. The search conducted upon a lawful arrest is permissible without a warrant, as the law recognizes the exigency of preserving evidence that may be destroyed or concealed.
44. The investigating officer further deposed that he was advised by counsel that the Applicant's reliance on Republic v David Ooga Mokaya (Milimani MCCR/E1161/2024) is misplaced. The deponent posited that the case involved a search of premises where the accused person was not present and where a search warrant was required. In the present case, the search was incidental to a lawful arrest, which is a well-recognized exception to the warrant requirement.
45. The deponent averred that as at the time of filing of Criminal Miscellaneous Application No. E2922 of 2026 investigations were not complete.
46. Consequently, there was no disclosure of evidential material on the grounds that such disclosure would have occasioned serious prejudice on the matter under investigations.
47. The deponent went on to state that the Applicant herein was not charged for any offence and for that reason the investigating officer was not required to disclose evidence before a suspect is formerly charged as suggested in paragraph 13(e) of her Supporting Affidavit but is merely required to demonstrate the reason why she should be held pending conclusion of investigations.
48. The investigation officer went on to state that he had established that the identified X Corp. account was active during the time the Applicant had been taken to custody thereby implying that the account was likely operated by several admins and once released, the Applicant was likely to establish contact with the said persons believed to be accomplices and such contact would occasion potential interference thus the reason why he sought to have the applicant detained pending charge.
49. Further, the deponent averred that flight movement data may be available through open-source, however, flight passenger personal data is not publicly accessible information contrary to the Applicant's averment in paragraph 13(f) of her Supporting Affidavit and for that he maintained that there was reason, and reasonable suspicion that the averred X Corp. user did access sensitive data e.g. passenger flight manifest(s).
50. The investigation officer contended that the Applicant was duly informed of the reason for her arrest and later escorted to Nairobi where the matter is being investigated and booked in at Ruaraka Police station as per the Station's Occurrence Book No. 63 of 30th June 2026 at 2354hrs.
51. According to him, the assertion that the Applicant was unlawfully transported from Mombasa to Nairobi as indicated in paragraph 4 on the Certificate of Urgency is far-fetched, considering that she was presented in court within 24 hours of her arrest.
52. The deponent went on to state that the Police Standing Orders require that an arrested person be brought before court as soon as possible, but not later than twenty-four hours after being arrested and that there is no requirement in law that an arrested person must be booked at the nearest police station before being transferred to another station for purposes of court presentation, provided the arrested person is brought before a court within the twenty-four-hour window.
53. Further, that the Applicant's transfer from Mombasa to Nairobi was necessitated by the nature and seriousness of the offence under investigation, which was a complex cybercrime involving online publications and requiring coordination with the Serious Crimes Unit based in Nairobi.
54. He maintained that the transfer was not intended to prejudice the Applicant but was for the efficient conduct of investigations.
55. The deponent further contended that contrary to the Applicant's allegation of incommunicado detention, she was afforded the opportunity to communicate with her family.
56. The officer further observed that the applicant was also represented by advocates who appeared before the learned Magistrate on her behalf thus the assertion that she was held incommunicado was therefore factually incorrect.
57. The respondents cited the case of Kasina v Attorney General & another where the High Court held that "the fact that the petitioner was released without being charged cannot, on its own, be termed to have been in violation of his fundamental rights and freedoms".
58. The respondents posited that the mere fact that the Applicant was transported from Mombasa to Nairobi does not, by itself, constitute a violation of her constitutional rights, provided she was presented before a court within the statutory time limit.
59. The investigation officer further informed this court that on the 2nd day of July 2026 he sought court orders under Criminal Miscellaneous Application No. E2972 of 2026 seeking orders to conduct forensic examination on the electronic gadgets described in paragraph 4(i-iv) which orders were granted.
60. According to him, the Applicant has not challenged the substance of the custodial orders granted by the learned Magistrate, but has instead focused on alleged procedural irregularities. The custodial orders were granted by the learned Magistrate after considering the application and being satisfied that the Applicant's detention was necessary to facilitate ongoing investigations into a serious offence.
61. He maintained that the three (3) day custodial period granted by the learned Magistrate was appropriate and proportionate in the circumstances.
62. According to the officer the investigation involves complex digital forensic analysis of the Applicant's electronic devices, which could not be completed within a shorter period.
63. Further, the deponent averred that the Applicant's allegations of constitutional violations were unsubstantiated and contradicted by the facts. He added that she had failed to demonstrate that the investigating agencies acted in bad faith or that the search, arrest, transfer, or detention was motivated
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