Josphat Kimeu Musyoka was charged in Makindu MCCRC no. E119 of 2025 with dealing in wildlife trophy of specified critically endangered wild life species contrary to section 92(2) as read with s. 105 of the Wildlife Conservation and Management Act , Cap 376 of the Laws of Kenya (revised 2018)
The particulars are that on 25th Day of February 2024 (sic) at around 0130 hrs Strabag area in Kambu of Kibwezi sub county within Makueni County he was found dealing with 340bags of suspected sandal wood with others not before court stuffed in 7 green sacks with a street value of kshs 3.4million and packed in a prime mover registration no. UBP 475H pulling a trailer number UBP 203J loaded with a container number EGSU 1600069 without a permit from the director General , KWS.
Plea was taken before the Hon. Mbicha PM on the 26th February 2025, and accused pleaded not guilty.
There after a controversy arose: as to whether the court could release the motor vehicle held by KWS as exhibit. The interested party vide aa application dated 4th March 2025 sought the release of the truck.
The application was opposed by the prosecution on the grounds that the application was premature as the contents of the container were unknown as it was yet to be opened /produced as exhibit before the court. That the application was supported by the affidavit of one Shi Wenxia at Kampala which in their view was inadmissible before the court; that the m/vehicle was liable to forfeiture as provided for by the wildlife Act , and that the registration documents provided for the m/vehicle were from Uganda and it would be near impossible to get the m/vehicle should it be released to the applicant.
On 8th April 2025 the court delivered its ruling allowing the release of m/v regno. UBP475H make SACHMAN upon the deposit of the original logbook with the court.
On 15th April 2025, Counsel for the Interested party made an oral application for the amendment of the order to reflect the release of the trailer. The prosecution objected. The court proceeded to order the amendment of the order to include trailer no. OBP 203J with container EGSU 1600069.
Those orders provoked the application for revision vide Notice of Motion dated 22nd April 2025. I gave interim orders of stay of execution of the lower court’s orders.
When this matter came for directions on 19th May 2025, counsel for the interested party told the court that my orders were overtaken by events as the truck and the trailer had already been released to the interested party.
I declined to do so because s. 362 of the Criminal Procedure Code gives this court the power
….to examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.
What does the record show?
1. When it came to bond, the prosecution objected to the same. However, the record states that the prosecutor simply stated “I object”.
2. That when the oral application was made to amend the order the prosecution objected to the same but the record simply states: “I object”
It turns out that the prosecutor said much more than what the record shows as they gave their reasons for the objection. However the court for reasons best know to itself failed to record the reasons for the objection.
The Hon Mbicha PM proceeded to order the release of the m/vehicle before it was an exhibit in the matter.
The Evidence Act at s. 63(3) provides for the production of exhibits. It states :
If oral evidence refers to the existence or condition of any material thing, other than a document, the court may, if it thinks fit, require the production of such material thing for its inspection .
The Criminal Procedure Code at S. 121 provides for the detention of any property sized in connection with a crime and what the court ought to do. It states:
121. Detention of property seized
(1) When anything is so seized and brought before a court, it may be detained until the conclusion of the case or the investigation, reasonable care being taken for its preservation.
(2) If an appeal is made, or if a person is committed for trial, the court may order it to be further detained for the purpose of the appeal or the trial.
(3) If no appeal is made, or if no person is committed for trial, the court shall direct the thing to be restored to the person from whom it was taken, unless the court sees fit or is authorized or required by law to dispose of it otherwise
The Wildlife Conservation and Management Act Cap. 376 of the laws of Kenya states at s. 105.
(1) The court before which a person is charged for an offence under this Act or any regulations made there-under may, in addition to any other order –
(a) upon the conviction of the accused; or
(b) if it is satisfied that an offence was committed notwithstanding that no person has been convicted of an offence, order that the wildlife trophy, motor vehicle, equipment and appliance, livestock or other thing by means whereof the offence concerned was committed or which was used in the commission of the offence be forfeited to the 1309 2013 Wildlife Conservation and Management Service and be disposed of as the court may direct.
(2) In making the order of forfeiture under subsection (1) the court may also order that the cost of disposing of the substance, motor vehicle, equipment, appliance, livestock or any other thing provided for in that subsection be borne by the person convicted there-under.
(3) The court may further order that any licence, permit or any authorization given under this Act, and to which the offence relates, be cancelled.
It is a basic law that a court becomes the custodian of any exhibit only when that exhibit has been produced as such in the proceedings. This is basic knowledge for any judicial officer . In Republic v Juma & 2 others [2022] KEHC 365 (KLR)where Justice Mativo (as he then was) was faced with a similar situation where the applicants he observed that :
The nub of the applicant’s submissions is that the motor vehicle is an exhibit in Criminal case number E979 of 2021 and that it is yet to be identified and produced as such. The applicant relied on Republic v Everlyne Wamuyu Ngumo1in which the High Court faulted lower courts order releasing a motor vehicle which was an exhibit in a pending criminal trial and set it aside. It was the applicant’s submission that the said motor vehicle is an integral part of proving the criminal case against the accused persons and in discharging the prosecutions evidential burden. Further, the applicant submitted that the said motor vehicle is subject to forfeiture upon conviction of the accused persons in accordance with section 78 of the Narcotics Drugs and Psychotropic Substances Act.
The learned Judge cited Simon Okoth Odhiambo v Republic [2005] KEHC 1168 (KLR) where the prosecution applied, and the court allowed the application for release of exhibits before the trial was concluded. It was held that
We have considered the evidence adduced before the Lower Court and find that if retendered, it would sustain a conviction. As regards the release of exhibits, this was most unfortunate. The Prosecutor applied for the release of the exhibits long before Judgment was delivered. The Court for unexplained reasons granted the Application. As we understand it exhibits should never be released by Court until it is satisfied that in the case of conviction, no Appeal has been preferred and if the Appeal has been filed, such exhibits should only be released once the Appeal has been heard and determined. It was therefore wrong on the part of the magistrate to have made rather pre-maturely an order releasing the exhibits. However, we take comfort in the fact that the exhibits which were released only related to count III. So that even if this count falls by the way side on account of lack of exhibits during the retrial, there will still be sufficient evidence to sustain a conviction against the Appellant in respect of the other two counts
The learned judge inRepublic v Juma & 2 others [2022] KEHC 365 (KLR)also expounded on this laying out the court’s power and limits in dealing with exhibits courts:
“Its basic law that evidence seized for use as exhibits in criminal proceedings is generally held by the police or prosecuting authority until the time when it is formally introduced into evidence during the trial of an accused person. Such evidence is then considered to be custodia legis or in custody of the court until the final disposition of the case either by the lower court or where an appeal is preferred by the final appellate court… The police are vested with powers to keep and protect exhibits to be produced in court
In Republic v Henry Were Obuya & another [2006] eKLR where Sergon J faced with a similar scenario held
What is clear is that the 2 containers are the subject matter of the complaint or charge before the Principal Magistrate’s Court. The containers have not been produced as exhibits in evidence hence they have not become the property of the court.
The learned Principal Magistrate therefore did not have jurisdiction to issue the orders releasing the container which in essence are the intended evidence in support of the prosecution’s case. The fact that the parties involved did not oppose the application for the release of the containers did not give the trial court any jurisdiction to issue to orders. In a nutshell the court had no control over the proposed exhibits until they are submitted to court as exhibits in evidence in the usual manner prescribed by law. In the end I am convinced that the learned Principal Magistrate issued the orders without jurisdiction hence the order can be dealt with on revision.
In Odhungo t/a Golden Key Travel Consultant v Obare & another [2025] KEHC 4731 (KLR) the court dealing with a similar scenario had this to say.
Release of motor vehicle
61.Section 177 & 178 of CPC allows a Court release or restitute property. However, this Court notes that the trial is not over yet but only the Pre-trial was completed. The Trial Court cannot anticipate the evidence to be preferred adduced and presented in Court. The law allows opportunity at appropriate stage and with reasons made to the Trial Court to allow or deny amendment of charges. Therefore although the subject motor vehicle is said to be a proceed of crime allegedly bought during the transactions between the accused and the complainant and the accused answered to the charge of obtaining money by false pretenses brought under the Penal Code; No one can tell the unfolding events in the Trial even though the charges dealing that the proceeds of crime are not before the Trial Court at this stage and the investigating officer has not testified yet to confirm any nexus or not between the subject motor vehicle and case before the court. Purchase Payment and Ownership of the motor vehicle Reg KDM 279R Land Rover Discovery shall first be confirmed before the Trial Court before order of motor vehicle is released on merit during or after trial.
There is no doubt that the learned trial magistrate in making the order for the release of the m/vehicle /truck or trailer acted without jurisdiction. The court had not become the custodian of the exhibit as it was still in the custody of the KWS and the Prosecution. They made it clear that the trailer had not been opened , they had not verified the registration documents of the m/vehicle and could not vouch for its availability when required as it had a foreign registration. In addition, it was clear that they were interested in the contents of the trailer which by the time of the order had not been known and the order for the photographs of the m/vehicle and its trailer would not be of much use
Why did Hon. Mbicha ignore the prospection’s place to allow them time to look into the contents of the container? Why was he in a hurry to issue a release order when the charge before him clearly laid a basis for the objections by the prosecutions?
In allowing the application he stated and I quote
The applicant implores the court to release the subject motor vehicle stating she is carrying transit cargo scheduled for delivery and will suffer massive losses. The investigating officer vehemently opposes the foregoing stating that the driver of the motor vehicle subject herein escaped and that the motor vehicle is susceptible to forfeiture.
The court is called upon to balance the foregoing scenario on a delicate subtle and symmetry basis bearing in mind the need to avoid unnecessary economic losses to any party , the need to preserve the vessel herein from loss, inertia and disrepair occasioned by a prolonged stationary state during the pendency of this suit vis a vis the need to meddle with the general flow of the prosecution’s case and to ensure the motor vehicle is available as and when required
The trial court ordered the m/vehicle to be released to deliver cargo that was the subject of investigation. As a Principal Magistrate he must be aware of the procedure . To take the evidence of the investigation officer, to produce the exhibit and thereafter to determine whether or not to release the m/vehicle.
If indeed the cargo was not contraband, nothing would have been easier that for the I.O and the prosecution to confirm the same and the court would still have been able to make the appropriate orders.
Before an exhibit becomes custodia legis or in custody of the court the court cannot exercise its power over it.
In the circumstances, in the exercise of the powers bestowed upon me by Article 165(6) & (7) of the Constitution and s. 362 of the Criminal Procedure Code, I find that the proceedingswere not properly recorded, the orders of the trial court were not made in accordance with the known law and procedure, were made without jurisdiction and the same are hereby revoked and set aside.
The Deputy Registrar to ensure that this order be served upon the trial magistrate, the Head of Station Makindu, the Prosecution and counsel for the accused person.
Orders accordingly.
Dated , signed, and delivered via CTS this 30th July 2025
Mumbua T Matheka
Judge
The particulars are that on 25th Day of February 2024 (sic) at around 0130 hrs Strabag area in Kambu of Kibwezi sub county within Makueni County he was found dealing with 340bags of suspected sandal wood with others not before court stuffed in 7 green sacks with a street value of kshs 3.4million and packed in a prime mover registration no. UBP 475H pulling a trailer number UBP 203J loaded with a container number EGSU 1600069 without a permit from the director General , KWS.
Plea was taken before the Hon. Mbicha PM on the 26th February 2025, and accused pleaded not guilty.
There after a controversy arose: as to whether the court could release the motor vehicle held by KWS as exhibit. The interested party vide aa application dated 4th March 2025 sought the release of the truck.
The application was opposed by the prosecution on the grounds that the application was premature as the contents of the container were unknown as it was yet to be opened /produced as exhibit before the court. That the application was supported by the affidavit of one Shi Wenxia at Kampala which in their view was inadmissible before the court; that the m/vehicle was liable to forfeiture as provided for by the wildlife Act , and that the registration documents provided for the m/vehicle were from Uganda and it would be near impossible to get the m/vehicle should it be released to the applicant.
On 8th April 2025 the court delivered its ruling allowing the release of m/v regno. UBP475H make SACHMAN upon the deposit of the original logbook with the court.
On 15th April 2025, Counsel for the Interested party made an oral application for the amendment of the order to reflect the release of the trailer. The prosecution objected. The court proceeded to order the amendment of the order to include trailer no. OBP 203J with container EGSU 1600069.
Those orders provoked the application for revision vide Notice of Motion dated 22nd April 2025. I gave interim orders of stay of execution of the lower court’s orders.
When this matter came for directions on 19th May 2025, counsel for the interested party told the court that my orders were overtaken by events as the truck and the trailer had already been released to the interested party.
I declined to do so because s. 362 of the Criminal Procedure Code gives this court the power
….to examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.
What does the record show?
1. When it came to bond, the prosecution objected to the same. However, the record states that the prosecutor simply stated “I object”.
2. That when the oral application was made to amend the order the prosecution objected to the same but the record simply states: “I object”
It turns out that the prosecutor said much more than what the record shows as they gave their reasons for the objection. However the court for reasons best know to itself failed to record the reasons for the objection.
The Hon Mbicha PM proceeded to order the release of the m/vehicle before it was an exhibit in the matter.
The Evidence Act at s. 63(3) provides for the production of exhibits. It states :
If oral evidence refers to the existence or condition of any material thing, other than a document, the court may, if it thinks fit, require the production of such material thing for its inspection .
The Criminal Procedure Code at S. 121 provides for the detention of any property sized in connection with a crime and what the court ought to do. It states:
121. Detention of property seized
(1) When anything is so seized and brought before a court, it may be detained until the conclusion of the case or the investigation, reasonable care being taken for its preservation.
(2) If an appeal is made, or if a person is committed for trial, the court may order it to be further detained for the purpose of the appeal or the trial.
(3) If no appeal is made, or if no person is committed for trial, the court shall direct the thing to be restored to the person from whom it was taken, unless the court sees fit or is authorized or required by law to dispose of it otherwise
The Wildlife Conservation and Management Act Cap. 376 of the laws of Kenya states at s. 105.
(1) The court before which a person is charged for an offence under this Act or any regulations made there-under may, in addition to any other order –
(a) upon the conviction of the accused; or
(b) if it is satisfied that an offence was committed notwithstanding that no person has been convicted of an offence, order that the wildlife trophy, motor vehicle, equipment and appliance, livestock or other thing by means whereof the offence concerned was committed or which was used in the commission of the offence be forfeited to the 1309 2013 Wildlife Conservation and Management Service and be disposed of as the court may direct.
(2) In making the order of forfeiture under subsection (1) the court may also order that the cost of disposing of the substance, motor vehicle, equipment, appliance, livestock or any other thing provided for in that subsection be borne by the person convicted there-under.
(3) The court may further order that any licence, permit or any authorization given under this Act, and to which the offence relates, be cancelled.
It is a basic law that a court becomes the custodian of any exhibit only when that exhibit has been produced as such in the proceedings. This is basic knowledge for any judicial officer . In Republic v Juma & 2 others [2022] KEHC 365 (KLR)where Justice Mativo (as he then was) was faced with a similar situation where the applicants he observed that :
The nub of the applicant’s submissions is that the motor vehicle is an exhibit in Criminal case number E979 of 2021 and that it is yet to be identified and produced as such. The applicant relied on Republic v Everlyne Wamuyu Ngumo1in which the High Court faulted lower courts order releasing a motor vehicle which was an exhibit in a pending criminal trial and set it aside. It was the applicant’s submission that the said motor vehicle is an integral part of proving the criminal case against the accused persons and in discharging the prosecutions evidential burden. Further, the applicant submitted that the said motor vehicle is subject to forfeiture upon conviction of the accused persons in accordance with section 78 of the Narcotics Drugs and Psychotropic Substances Act.
The learned Judge cited Simon Okoth Odhiambo v Republic [2005] KEHC 1168 (KLR) where the prosecution applied, and the court allowed the application for release of exhibits before the trial was concluded. It was held that
We have considered the evidence adduced before the Lower Court and find that if retendered, it would sustain a conviction. As regards the release of exhibits, this was most unfortunate. The Prosecutor applied for the release of the exhibits long before Judgment was delivered. The Court for unexplained reasons granted the Application. As we understand it exhibits should never be released by Court until it is satisfied that in the case of conviction, no Appeal has been preferred and if the Appeal has been filed, such exhibits should only be released once the Appeal has been heard and determined. It was therefore wrong on the part of the magistrate to have made rather pre-maturely an order releasing the exhibits. However, we take comfort in the fact that the exhibits which were released only related to count III. So that even if this count falls by the way side on account of lack of exhibits during the retrial, there will still be sufficient evidence to sustain a conviction against the Appellant in respect of the other two counts
The learned judge inRepublic v Juma & 2 others [2022] KEHC 365 (KLR)also expounded on this laying out the court’s power and limits in dealing with exhibits courts:
“Its basic law that evidence seized for use as exhibits in criminal proceedings is generally held by the police or prosecuting authority until the time when it is formally introduced into evidence during the trial of an accused person. Such evidence is then considered to be custodia legis or in custody of the court until the final disposition of the case either by the lower court or where an appeal is preferred by the final appellate court… The police are vested with powers to keep and protect exhibits to be produced in court
In Republic v Henry Were Obuya & another [2006] eKLR where Sergon J faced with a similar scenario held
What is clear is that the 2 containers are the subject matter of the complaint or charge before the Principal Magistrate’s Court. The containers have not been produced as exhibits in evidence hence they have not become the property of the court.
The learned Principal Magistrate therefore did not have jurisdiction to issue the orders releasing the container which in essence are the intended evidence in support of the prosecution’s case. The fact that the parties involved did not oppose the application for the release of the containers did not give the trial court any jurisdiction to issue to orders. In a nutshell the court had no control over the proposed exhibits until they are submitted to court as exhibits in evidence in the usual manner prescribed by law. In the end I am convinced that the learned Principal Magistrate issued the orders without jurisdiction hence the order can be dealt with on revision.
In Odhungo t/a Golden Key Travel Consultant v Obare & another [2025] KEHC 4731 (KLR) the court dealing with a similar scenario had this to say.
Release of motor vehicle
61.Section 177 & 178 of CPC allows a Court release or restitute property. However, this Court notes that the trial is not over yet but only the Pre-trial was completed. The Trial Court cannot anticipate the evidence to be preferred adduced and presented in Court. The law allows opportunity at appropriate stage and with reasons made to the Trial Court to allow or deny amendment of charges. Therefore although the subject motor vehicle is said to be a proceed of crime allegedly bought during the transactions between the accused and the complainant and the accused answered to the charge of obtaining money by false pretenses brought under the Penal Code; No one can tell the unfolding events in the Trial even though the charges dealing that the proceeds of crime are not before the Trial Court at this stage and the investigating officer has not testified yet to confirm any nexus or not between the subject motor vehicle and case before the court. Purchase Payment and Ownership of the motor vehicle Reg KDM 279R Land Rover Discovery shall first be confirmed before the Trial Court before order of motor vehicle is released on merit during or after trial.
There is no doubt that the learned trial magistrate in making the order for the release of the m/vehicle /truck or trailer acted without jurisdiction. The court had not become the custodian of the exhibit as it was still in the custody of the KWS and the Prosecution. They made it clear that the trailer had not been opened , they had not verified the registration documents of the m/vehicle and could not vouch for its availability when required as it had a foreign registration. In addition, it was clear that they were interested in the contents of the trailer which by the time of the order had not been known and the order for the photographs of the m/vehicle and its trailer would not be of much use
Why did Hon. Mbicha ignore the prospection’s place to allow them time to look into the contents of the container? Why was he in a hurry to issue a release order when the charge before him clearly laid a basis for the objections by the prosecutions?
In allowing the application he stated and I quote
The applicant implores the court to release the subject motor vehicle stating she is carrying transit cargo scheduled for delivery and will suffer massive losses. The investigating officer vehemently opposes the foregoing stating that the driver of the motor vehicle subject herein escaped and that the motor vehicle is susceptible to forfeiture.
The court is called upon to balance the foregoing scenario on a delicate subtle and symmetry basis bearing in mind the need to avoid unnecessary economic losses to any party , the need to preserve the vessel herein from loss, inertia and disrepair occasioned by a prolonged stationary state during the pendency of this suit vis a vis the need to meddle with the general flow of the prosecution’s case and to ensure the motor vehicle is available as and when required
The trial court ordered the m/vehicle to be released to deliver cargo that was the subject of investigation. As a Principal Magistrate he must be aware of the procedure . To take the evidence of the investigation officer, to produce the exhibit and thereafter to determine whether or not to release the m/vehicle.
If indeed the cargo was not contraband, nothing would have been easier that for the I.O and the prosecution to confirm the same and the court would still have been able to make the appropriate orders.
Before an exhibit becomes custodia legis or in custody of the court the court cannot exercise its power over it.
In the circumstances, in the exercise of the powers bestowed upon me by Article 165(6) & (7) of the Constitution and s. 362 of the Criminal Procedure Code, I find that the proceedingswere not properly recorded, the orders of the trial court were not made in accordance with the known law and procedure, were made without jurisdiction and the same are hereby revoked and set aside.
The Deputy Registrar to ensure that this order be served upon the trial magistrate, the Head of Station Makindu, the Prosecution and counsel for the accused person.
Orders accordingly.
Dated , signed, and delivered via CTS this 30th July 2025
Mumbua T Matheka
Judge