The Application.
1. The Director of Public Prosecution (hereinafter referred to as the applicant) filed application dated 177 th July, 2026 for revision pursuant to Section 362 and 364 of the Criminal Procedure Code. The orders sought to be revised were issued by Hon. K. Cheruiyot SPM on 15 th July, 2026 at Kikuyu Magistrate’s Court in Criminal Case E314 of 2026 Republic vs Godfrey Mwakasungu Joel releasing container No. SUPU 8771087 and motor vehicle registration number KCK 848K Scania Premium.
2. The applicant contend that the said container and the vehicle are crucial prosecution exhibits in a serious drug trafficking case which the learned magistrate ordered to be released without substantive hearing and or production of the said exhibits. It is the contention of the applicant that the learned magistrate did not have jurisdiction to release the said exhibits.
Grounds of the Application.
3. The application is premised on the following grounds:
1. That the respondent was arraigned in court on 23 rd April, 2026 for plea having been charged with Trafficking in Cannabis contrary to Section 4(a) of the Narcotic Drugs and Psychotropic Substances Act valued at Kshs. 4,470,000/=
2. That the respondent was using container No. SUPU 871087 and motor vehicle registration number KCK 848K Scania Premium to traffic the drugs as such they are crucial prosecution exhibits.
3. That container No. SUPU 8771087 and motor vehicle registration number KCK 848K Scania Premium are liable for forfeiture at the end of the trial depending on the outcome of the forfeiture proceedings likely to happen after a possible conviction of the respondent.
4. That the interested party applied for the release of the exhibits which application was opposed by the applicant. Directions on how to prosecute the application were taken and the applicant expected to have its day in court but was surprised to learn of the orders releasing the exhibits after they were served on the OCS Kikuyu Police Station.
5. That the learned trial magistrate in granting the release orders ignored the fact that he did not have the requisite jurisdiction to release the exhibits for the reason that the same had not been produced before him and that the release was likely to prejudice the prosecution case.
6. That the learned magistrate’s orders on the face of it are ambiguous and speak to release of two units of exhibits, while the interested party had applied for release of 3 units, leaving the question as why one unit of the exhibit should not be released and the others releases.
7. That this honourable court in exercise of supervisory powers, may call for and examine the subordinate court file to satisfy itself as to the correctness, legality or propriety of the said orders.
8. That in the interest of justice and fairness this application be allowed.
9. That the complainant and the general public stand to suffer an injustice in the case if the honourable court does not intervene in the matter considering that drug trafficking is a serious offence that has huge negative impact to our society and the prosecution of such cases must be protected to save the society.
Response to the Application by the Interested Party.
4. The interested party filed a replying affidavit to the application sworn by Anwar Ahmed Omar on 24 th July, 2026.
5. The interested party has deposed that despite the applicant’s complaint about lack of jurisdiction by the trial magistrate nothing has been shown that the trial court lacked the same to release the said exhibits.
6. It is the deposition of the interested party that the trial court duly heard the application for release of the exhibits and duly exercised his judicial discretion and directed that the said container and the vehicle be photographed before release for evidential purposes.
7. The interested party contend that the trial magistrate balanced the interest of justice by considering the evidential needs of the prosecution against the constitutional property rights of the interested party who is neither the accused nor suspect in the criminal proceedings before the court.
8. The interested party contend that the motor vehicle registration number KCK 848K belongs to the interested party whereas container No. SUPU 871087 is an asset which was contracted to execute particular purpose and was in transit back to Mombasa as an empty container. It is the contention of the interested party that the continued detention of the said container and the motor vehicle is causing financial loss to her.
9. Finally, the interested party contend that no criminal prosecution has been preferred against the interested party who has committed and undertaken to have the said container and the vehicle produced in court when required.
Applicant’s Submissions.
10. The applicant submitted that the trial magistrate lacked jurisdiction to release exhibits not produced in evidence before the court. Reliance was placed on the cases of Elijah Nyakebondo Onsongo vs R (2017) e KLR, Republic vs Everlyne Wamuyu Ngumo (2016) e KLR and Republic vs Cape Van International Ltd & Another (2004) e KLR where the court emphasized that a magistrate’s court cannot order the release of any property which has been earmarked as an exhibit in criminal case before the same is produced as exhibit. Consequently, it is submitted that the orders of the trial magistrate issued on 15 th July, 2026 were made in excess of jurisdiction and the same ought to be set aside on revision.
11. It is further submitted that the release of an exhibit central to a criminal charge can only be determined after evidence is taken. Reliance is placed in the case of Jeremiah Kobia Munoro vs R (2021) e KLR where the court emphasized whether a property held by the police is connected to an offence is a matter of evidence and can only be determined after taking evidence.
12. The applicant further submits that the orders issued by the trial magistrate were ambiguous in the sense that the interested party sought release of three units but the trial court order referred to two units leaving it unexplained why the other unit has not been released while the others have been released.
13. Finally, the applicant submit that the release of the exhibits will occasion prejudice to the prosecution case as the said container and the vehicle are direct evidence of the mode and mechanism of trafficking alleged against the respondent as such their physical availability may be required. The applicant submits that once released the prosecution shall suffer substantial prejudice which is incapable of remedied. In any case the applicant argue that no prejudice will be occasioned to the respondents.
Interested Party Submissions.
14. The interested party has submitted that the applicant has not established a case for revision. It is argued that under Section 362 and 364 of the Criminal Procedure Code the supervisory jurisdiction of the High Court is limited to correcting patent illegalities, incorrectness or material irregularities apparent on record. Reliance was placed in cases of Singo vs R (1984) KLR 713 and Republic vs Executive Director, NGO Co-ordination Board & 2 others Ex-parte Katiba Institute (2018) e KLR where the court emphasized that the supervisory jurisdiction pf the High Court is solely to cure grave miscarriage of justice or patent illegalities on the face of the record and not to offer a second chance to a litigant who is dissatisfied by the exercise of the discretion by the trial magistrate.
15. It is argued by the interested party that the application by the applicant has not identified any error apparent on the face of the record other than asking the court to reach a different conclusion from that reached by the trial court.
16. The interested party has further submitted that the applicant has not identified any statutory provision showing that the trial court did not have jurisdiction. It is the contention of the interested party that the trial court has jurisdiction pursuant to Section 177 of the Criminal Procedure Code. It is argued by the interested party that there is nothing which has been placed before this court to show that the trial magistrate exercised his discretion illegally, arbitrary or unprocedurally.
17. The interested party further argued that it has a constitutional right not to be deprived of its property. Reliance is placed in the cases of Saeed Mohsen Samaan vs R (2008) e KLR and Republic vs Director of Public Prosecution & another Ex-parte Directline Assurance Company Limited (2018) e KLR.
18. It is further submitted by the interested party that it has cooperated with the investigators and the continued holding of the properties by the police is detrimental to the interested party as it continues to suffer financial loss.
Analysis and Determination.
19. I have considered the application, the replying affidavit and the submissions by the parties. The power of this court in its revisionary jurisdiction is founded on Article 165(6) of the Constitution and Section 362 of the Criminal Procedure Code.
Article 165(6)(7) of the Constitution provides:
“(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.”
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6) and may make any order or give any direction it considers appropriate to ensure the fair administration of justice…”
Section 362 of the Criminal Procedure Code provides:
“The High Court may call for and examine the record of any criminal proceedings before any subordinate court to satisfy 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.”
20. Consequently, this court has jurisdiction to entertain the application before the court. The applicant in this case sought revision of the ruling delivered on 15 th July, 2026 releasing container No. SUPU 871087 and motor vehicle registration number KCK 848K to the interested party. Therefore, what is for consideration of the court is whether the proceedings of the lower court and the ruling can be faulted on terms of correctness, legality or propriety.
21. In the instant case it is argued by the applicant that the said container and the motor vehicle are crucial evidence in this lower court case and may be subject of forfeiture depending on the outcome of the trial. Similarly, the applicant argued that it was not given an opportunity to be heard before the orders releasing the container and vehicle was made despite the fact that the application was opposed.
22. I have looked at the ruling of the trial court and it is not indicated that the applicant participated during hearing of the same. I state so because the ruling does not seem to have considered the replying affidavit by the applicant sworn on 5 th May, 2026. That was clearly irregular as the applicant was condemned unheard.
23. Further to the foregoing, a court has jurisdiction to restore property to individual it believes to be entitled to it pursuant to the provisions of Section 177(a) of the Criminal Procedure Code. All the court has to consider is under what circumstances the said property should be released.
24. It is general procedure that an exhibit forms part of the evidence once it has been presented for identification and for consideration by the court whether the same can be admitted as exhibit or not depending on the legality of the same. It is also generally accepted principle that all evidence to be relied upon during trial must be preserved. This is the duty of the investigators of the case.
25. In the instant case, it is clear that the container and the vehicle in question were not presented before the trial court before the order of release was made. As held in the case of Elijah Nyakebondo Onsongo vs Republic (supra) until a property or properties are produced in court as exhibits, the court will not have jurisdiction to order release of the same.
26. Further to the foregoing, Sections 75 and 78 of the Narcotic Drugs and Psychotropic Substances Control Act are pertinent in the instant case for the reasons that the accused in the criminal case before the lower court was charged with trafficking in narcotic drugs. Those Sections provides as follows:
“75 Keeping of property seized under Act
“All articles and things, including any narcotic drug or psychotropic substance, motor vehicle, aircraft, ship, carriage or other conveyance seized by any person under this Act shall, as soon as possible, be delivered to he Commissioner of Police with a statement of the particulars relating to the seizure and the Commissioner of Police shall arrange for the articles and things to be kept safely until they are dealt with in accordance with any other provision of this Act, and shall ensure that all reasonable steps are taken to preserve the articles and things while they are so kept.”
78 Condemnation of seized things
Where a person is convicted of ab offence under this Act and any narcotic drug or psychotropic substance, motor vehicle, aircraft, ship, carriage or other conveyance or any other article or thing, liable to forfeiture to the Government under this Act in respect of that offence has been seized under this Act, the court convicting him may, in addition to any other penalty imposed on him, order that the narcotic drug, psychotropic substance, motor vehicle, aircraft, ship, carriage of other conveyance or other article or thing be condemned and forfeited to the Government.”
27. As I have stated it is the police who have the power and duty to preserve exhibits before they are produced in court. In the case of Simon Okoth Odhiambo vs Republic (2005) e KLR the court emphasized that exhibits should never be released by the court until it is satisfied that in the case of conviction, no appeal has been preferred and if appeal has been filed, such exhibits should be released once the appeal has been heard and determined.
28. It is not contested that the accused in the lower court is charged with the offence trafficking on narcotic drugs under Narcotic Drugs and Psychotropic Substances Control Act. As indicated, under Section 75 and 78 of the Act any items seized may be subject of forfeiture and unless the trial court clears the accused of the offence or he is cleared on appeal, the accused and or even the purported owner cannot purport to have the same released to them.
29. Flowing from the foregoing, I find that the application herein is merited and the orders issued on 15 th July, 2026 are hereby set aside in their entirety.
Dated, signed and delivered virtually this 17 th day of September, 2026.
F.N Kyambia
Judge.
2
1. The Director of Public Prosecution (hereinafter referred to as the applicant) filed application dated 177 th July, 2026 for revision pursuant to Section 362 and 364 of the Criminal Procedure Code. The orders sought to be revised were issued by Hon. K. Cheruiyot SPM on 15 th July, 2026 at Kikuyu Magistrate’s Court in Criminal Case E314 of 2026 Republic vs Godfrey Mwakasungu Joel releasing container No. SUPU 8771087 and motor vehicle registration number KCK 848K Scania Premium.
2. The applicant contend that the said container and the vehicle are crucial prosecution exhibits in a serious drug trafficking case which the learned magistrate ordered to be released without substantive hearing and or production of the said exhibits. It is the contention of the applicant that the learned magistrate did not have jurisdiction to release the said exhibits.
Grounds of the Application.
3. The application is premised on the following grounds:
1. That the respondent was arraigned in court on 23 rd April, 2026 for plea having been charged with Trafficking in Cannabis contrary to Section 4(a) of the Narcotic Drugs and Psychotropic Substances Act valued at Kshs. 4,470,000/=
2. That the respondent was using container No. SUPU 871087 and motor vehicle registration number KCK 848K Scania Premium to traffic the drugs as such they are crucial prosecution exhibits.
3. That container No. SUPU 8771087 and motor vehicle registration number KCK 848K Scania Premium are liable for forfeiture at the end of the trial depending on the outcome of the forfeiture proceedings likely to happen after a possible conviction of the respondent.
4. That the interested party applied for the release of the exhibits which application was opposed by the applicant. Directions on how to prosecute the application were taken and the applicant expected to have its day in court but was surprised to learn of the orders releasing the exhibits after they were served on the OCS Kikuyu Police Station.
5. That the learned trial magistrate in granting the release orders ignored the fact that he did not have the requisite jurisdiction to release the exhibits for the reason that the same had not been produced before him and that the release was likely to prejudice the prosecution case.
6. That the learned magistrate’s orders on the face of it are ambiguous and speak to release of two units of exhibits, while the interested party had applied for release of 3 units, leaving the question as why one unit of the exhibit should not be released and the others releases.
7. That this honourable court in exercise of supervisory powers, may call for and examine the subordinate court file to satisfy itself as to the correctness, legality or propriety of the said orders.
8. That in the interest of justice and fairness this application be allowed.
9. That the complainant and the general public stand to suffer an injustice in the case if the honourable court does not intervene in the matter considering that drug trafficking is a serious offence that has huge negative impact to our society and the prosecution of such cases must be protected to save the society.
Response to the Application by the Interested Party.
4. The interested party filed a replying affidavit to the application sworn by Anwar Ahmed Omar on 24 th July, 2026.
5. The interested party has deposed that despite the applicant’s complaint about lack of jurisdiction by the trial magistrate nothing has been shown that the trial court lacked the same to release the said exhibits.
6. It is the deposition of the interested party that the trial court duly heard the application for release of the exhibits and duly exercised his judicial discretion and directed that the said container and the vehicle be photographed before release for evidential purposes.
7. The interested party contend that the trial magistrate balanced the interest of justice by considering the evidential needs of the prosecution against the constitutional property rights of the interested party who is neither the accused nor suspect in the criminal proceedings before the court.
8. The interested party contend that the motor vehicle registration number KCK 848K belongs to the interested party whereas container No. SUPU 871087 is an asset which was contracted to execute particular purpose and was in transit back to Mombasa as an empty container. It is the contention of the interested party that the continued detention of the said container and the motor vehicle is causing financial loss to her.
9. Finally, the interested party contend that no criminal prosecution has been preferred against the interested party who has committed and undertaken to have the said container and the vehicle produced in court when required.
Applicant’s Submissions.
10. The applicant submitted that the trial magistrate lacked jurisdiction to release exhibits not produced in evidence before the court. Reliance was placed on the cases of Elijah Nyakebondo Onsongo vs R (2017) e KLR, Republic vs Everlyne Wamuyu Ngumo (2016) e KLR and Republic vs Cape Van International Ltd & Another (2004) e KLR where the court emphasized that a magistrate’s court cannot order the release of any property which has been earmarked as an exhibit in criminal case before the same is produced as exhibit. Consequently, it is submitted that the orders of the trial magistrate issued on 15 th July, 2026 were made in excess of jurisdiction and the same ought to be set aside on revision.
11. It is further submitted that the release of an exhibit central to a criminal charge can only be determined after evidence is taken. Reliance is placed in the case of Jeremiah Kobia Munoro vs R (2021) e KLR where the court emphasized whether a property held by the police is connected to an offence is a matter of evidence and can only be determined after taking evidence.
12. The applicant further submits that the orders issued by the trial magistrate were ambiguous in the sense that the interested party sought release of three units but the trial court order referred to two units leaving it unexplained why the other unit has not been released while the others have been released.
13. Finally, the applicant submit that the release of the exhibits will occasion prejudice to the prosecution case as the said container and the vehicle are direct evidence of the mode and mechanism of trafficking alleged against the respondent as such their physical availability may be required. The applicant submits that once released the prosecution shall suffer substantial prejudice which is incapable of remedied. In any case the applicant argue that no prejudice will be occasioned to the respondents.
Interested Party Submissions.
14. The interested party has submitted that the applicant has not established a case for revision. It is argued that under Section 362 and 364 of the Criminal Procedure Code the supervisory jurisdiction of the High Court is limited to correcting patent illegalities, incorrectness or material irregularities apparent on record. Reliance was placed in cases of Singo vs R (1984) KLR 713 and Republic vs Executive Director, NGO Co-ordination Board & 2 others Ex-parte Katiba Institute (2018) e KLR where the court emphasized that the supervisory jurisdiction pf the High Court is solely to cure grave miscarriage of justice or patent illegalities on the face of the record and not to offer a second chance to a litigant who is dissatisfied by the exercise of the discretion by the trial magistrate.
15. It is argued by the interested party that the application by the applicant has not identified any error apparent on the face of the record other than asking the court to reach a different conclusion from that reached by the trial court.
16. The interested party has further submitted that the applicant has not identified any statutory provision showing that the trial court did not have jurisdiction. It is the contention of the interested party that the trial court has jurisdiction pursuant to Section 177 of the Criminal Procedure Code. It is argued by the interested party that there is nothing which has been placed before this court to show that the trial magistrate exercised his discretion illegally, arbitrary or unprocedurally.
17. The interested party further argued that it has a constitutional right not to be deprived of its property. Reliance is placed in the cases of Saeed Mohsen Samaan vs R (2008) e KLR and Republic vs Director of Public Prosecution & another Ex-parte Directline Assurance Company Limited (2018) e KLR.
18. It is further submitted by the interested party that it has cooperated with the investigators and the continued holding of the properties by the police is detrimental to the interested party as it continues to suffer financial loss.
Analysis and Determination.
19. I have considered the application, the replying affidavit and the submissions by the parties. The power of this court in its revisionary jurisdiction is founded on Article 165(6) of the Constitution and Section 362 of the Criminal Procedure Code.
Article 165(6)(7) of the Constitution provides:
“(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.”
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6) and may make any order or give any direction it considers appropriate to ensure the fair administration of justice…”
Section 362 of the Criminal Procedure Code provides:
“The High Court may call for and examine the record of any criminal proceedings before any subordinate court to satisfy 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.”
20. Consequently, this court has jurisdiction to entertain the application before the court. The applicant in this case sought revision of the ruling delivered on 15 th July, 2026 releasing container No. SUPU 871087 and motor vehicle registration number KCK 848K to the interested party. Therefore, what is for consideration of the court is whether the proceedings of the lower court and the ruling can be faulted on terms of correctness, legality or propriety.
21. In the instant case it is argued by the applicant that the said container and the motor vehicle are crucial evidence in this lower court case and may be subject of forfeiture depending on the outcome of the trial. Similarly, the applicant argued that it was not given an opportunity to be heard before the orders releasing the container and vehicle was made despite the fact that the application was opposed.
22. I have looked at the ruling of the trial court and it is not indicated that the applicant participated during hearing of the same. I state so because the ruling does not seem to have considered the replying affidavit by the applicant sworn on 5 th May, 2026. That was clearly irregular as the applicant was condemned unheard.
23. Further to the foregoing, a court has jurisdiction to restore property to individual it believes to be entitled to it pursuant to the provisions of Section 177(a) of the Criminal Procedure Code. All the court has to consider is under what circumstances the said property should be released.
24. It is general procedure that an exhibit forms part of the evidence once it has been presented for identification and for consideration by the court whether the same can be admitted as exhibit or not depending on the legality of the same. It is also generally accepted principle that all evidence to be relied upon during trial must be preserved. This is the duty of the investigators of the case.
25. In the instant case, it is clear that the container and the vehicle in question were not presented before the trial court before the order of release was made. As held in the case of Elijah Nyakebondo Onsongo vs Republic (supra) until a property or properties are produced in court as exhibits, the court will not have jurisdiction to order release of the same.
26. Further to the foregoing, Sections 75 and 78 of the Narcotic Drugs and Psychotropic Substances Control Act are pertinent in the instant case for the reasons that the accused in the criminal case before the lower court was charged with trafficking in narcotic drugs. Those Sections provides as follows:
“75 Keeping of property seized under Act
“All articles and things, including any narcotic drug or psychotropic substance, motor vehicle, aircraft, ship, carriage or other conveyance seized by any person under this Act shall, as soon as possible, be delivered to he Commissioner of Police with a statement of the particulars relating to the seizure and the Commissioner of Police shall arrange for the articles and things to be kept safely until they are dealt with in accordance with any other provision of this Act, and shall ensure that all reasonable steps are taken to preserve the articles and things while they are so kept.”
78 Condemnation of seized things
Where a person is convicted of ab offence under this Act and any narcotic drug or psychotropic substance, motor vehicle, aircraft, ship, carriage or other conveyance or any other article or thing, liable to forfeiture to the Government under this Act in respect of that offence has been seized under this Act, the court convicting him may, in addition to any other penalty imposed on him, order that the narcotic drug, psychotropic substance, motor vehicle, aircraft, ship, carriage of other conveyance or other article or thing be condemned and forfeited to the Government.”
27. As I have stated it is the police who have the power and duty to preserve exhibits before they are produced in court. In the case of Simon Okoth Odhiambo vs Republic (2005) e KLR the court emphasized that exhibits should never be released by the court until it is satisfied that in the case of conviction, no appeal has been preferred and if appeal has been filed, such exhibits should be released once the appeal has been heard and determined.
28. It is not contested that the accused in the lower court is charged with the offence trafficking on narcotic drugs under Narcotic Drugs and Psychotropic Substances Control Act. As indicated, under Section 75 and 78 of the Act any items seized may be subject of forfeiture and unless the trial court clears the accused of the offence or he is cleared on appeal, the accused and or even the purported owner cannot purport to have the same released to them.
29. Flowing from the foregoing, I find that the application herein is merited and the orders issued on 15 th July, 2026 are hereby set aside in their entirety.
Dated, signed and delivered virtually this 17 th day of September, 2026.
F.N Kyambia
Judge.
2