1. The Applicant filed the Notice of Motion dated 13th February 2026 seeking the following orders:
a) Spent.
b) THAT this Honourable Court be pleased to order the release to the Applicant of Motor Vehicle Registration Number KDK 153D ISUZU FRR Lorry currently detained at the Directorate of Criminal Investigations County Headquarters, Mombasa.
c) THAT this Honourable Court be pleased to order that the goods, namely approximately 300 pieces of corrugated sheets (M.S Plates 8’ x 4’ x 1.3 mm) currently loaded on the said motor vehicle, be unloaded by the Applicant under the supervision of the 1st Respondent at the Police Station and thereafter be collected by the owner thereof.
d) THAT the costs of this application be provided for.
2. The application is premised on the grounds set out therein and the supporting affidavit sworn by the Applicant on 13th February 2026. The Applicant averred that he is the registered owner of the aforesaid motor vehicle and operates a transport business through which he hires out the said vehicle for transportation of goods.
3. The Applicant deponed that on 8th January 2026, the subject motor vehicle was hired by one Mr. Haron Muthini for purposes of transporting approximately 200 pieces of corrugated sheets (M.S Plates) from Mombasa Cement Corrugated Sheet Limited to Machakos. The said goods were being transported by the Applicant’s authorised driver, Mr. David Nyamu, when upon reaching Mariakani Weighbridge, the vehicle was intercepted by officers from the Directorate of Criminal Investigations. The driver was subsequently arrested.
4. The Applicant further stated that since 8th January 2026, the continued detention of the motor vehicle has deprived him of its use, thereby occasioning substantial financial loss, including the termination and/or suspension of previously secured transport contracts. He further explained that he had purchased the motor vehicle through a loan facility from Equity Bank Limited, which loan was being serviced from income generated by the vehicle. As a result of the detention, he is unable to remit the monthly instalments.
5. The Applicant acknowledged awareness that the goods being transported may have been obtained through the commission of a criminal offence. He nevertheless contended that even where a motor vehicle is required for purposes of investigation, courts ordinarily exercise discretion to release the same to its registered owner upon reasonable conditions, including an undertaking to avail the vehicle whenever required.
6. He further informed the court that photographs of the motor vehicle and the impounded goods were taken at the time of impoundment at Mariakani Weighbridge and retained by the investigating officers. The Applicant maintained that the impounded goods do not belong to him, but to the said Mr. Haron Muthini.
7. The application was opposed by the State through grounds of opposition dated 9th March 2026. Learned Counsel Mr. Sirima submitted that the Applicant had failed to demonstrate sufficient grounds warranting the issuance of the orders sought. Counsel further faulted the Applicant for failing to present himself before the investigating officer to record a statement and provide proof of ownership of the motor vehicle. It was also contended that since the Applicant had conceded that the vehicle was involved in the commission of a crime, the same was liable to forfeiture upon proof of the offence.
8. The Court has considered the application, the grounds of opposition, and the submissions on record. The issue for determination is whether the application is merited.
9. Upon consideration of the pleadings and applicable law, the Court makes the following determination:
a.
The seizure of the motor vehicle is provided for under Section 26(1) of the Criminal Procedure Code, while restitution of detained property is provided for under Section 177 of the same Act. Courts have rendered varying opinions regarding detention of motor vehicles pending production as exhibits in criminal proceedings.
In Abdi Abdalla Decosta v Republic [2019] KEHC 7732 (KLR), the Court held:
“Counsel for the applicant filed written submissions. He relied on Article 48 (Access to Justice) and Article 50 (Presumption of Innocence) of the Constitution. He also cited the authority of Republic v John Nganga Mbugua [2014] eKLR where Justice Mucheru observed as follows:
‘It is the practice in criminal cases that photographs will be taken by the scene of crime personnel of exhibits and scenes of crime which will be produced in evidence during the hearing. If it is possible to avail the exhibit itself, the photographs may also be produced. If the vehicle is released after its photographs are taken, no miscarriage of justice will be occasioned during the trial...’
The reasoning expressed in Republic v John Nganga Mbugua [2014] eKLR is quite apt. In my view, however, the motor vehicle should always be produced as an exhibit together with photographs taken of it before a release order is made. Once that is done, the vehicle may be released to the owner on condition that it shall not be sold, wasted, diminished in value, or otherwise dealt with in a manner that would render it unavailable to the Court should it be required for purposes of the proceedings.”
b.
In Republic v John Nganga Mbugua [2014] eKLR, the Court further held:
“It does not make any sense to keep the applicant’s motor vehicle, which is an income-generating asset, in police custody until the pending criminal case is finalized. The prosecution has not attempted to demonstrate why the vehicle should continue to be detained at the police station while the applicant is ready and willing to produce it during hearings.”
Similarly, in Jeremiah Kobia Munoro v Republic [2021] eKLR, the Court observed:
“…a motor vehicle parked in an open yard and unprotected from the hazards of weather is prone to serious damage and depreciation.
It will not serve the interests of justice to eventually release a mere ‘shell’ to the rightful owner at the conclusion of the trial. It may even expose the State to litigation where, at the end of the trial, there is no proof that the motor vehicle was acquired through proceeds of crime or where no compensation is awarded to the complainant, yet the vehicle has completely depreciated in value.”
c.
In the present case, the Applicant is the registered owner of Motor Vehicle Registration Number KDK 153D ISUZU FRR and was not arrested in connection with the alleged offence. He has explained that the vehicle was impounded while transporting goods on behalf of one Mr. Haron Muthini.
Although Mr. Sirima submitted that the Applicant failed to present himself at the police station and furnish proof of ownership, the Court is satisfied from the material placed before it that the Applicant is indeed the owner of the said vehicle.
Counsel for the State further contended that the Applicant had not recorded a statement with the investigating officer. The Court, however, does not see how this precludes the Applicant from recording such statement. The Applicant remains at liberty to record a statement at any time, and the police equally possess sufficient legal powers to require the same. Should investigations reveal his involvement in the alleged offence, the law provides appropriate mechanisms for further action.
d.
The issue of forfeiture, as raised by Mr. Sirima, cannot arise at this stage. Under Section 389A of the Criminal Procedure Code, forfeiture cannot be ordered where ownership of the property is known and has been established.
The Court is persuaded that the motor vehicle may be released to the Applicant subject to appropriate safeguards. Consequently, the application is hereby allowed on the following conditions:
i. The Investigating Officer shall take photographs of the motor vehicle in the presence of the Applicant and/or his advocate.
ii. The Applicant shall avail to the trial court a certified copy of the logbook together with the original logbook for purposes of verification of the chassis and engine numbers.
iii. The Investigating Officer shall retain the certified copy of the logbook for purposes of reliance during trial.
10. Accordingly, the application is allowed in the above terms.
11. It is so ordered.
DATED, SIGNED AND DELIVERED AT MOMBASA IN OPEN COURT/ONLINE THROUGH MICROSOFT TEAMS THIS 8TH DAY OF MAY 2026.
...HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the Presence of:
Mr. Sirima for the State
Bebora – Court Assistant
a) Spent.
b) THAT this Honourable Court be pleased to order the release to the Applicant of Motor Vehicle Registration Number KDK 153D ISUZU FRR Lorry currently detained at the Directorate of Criminal Investigations County Headquarters, Mombasa.
c) THAT this Honourable Court be pleased to order that the goods, namely approximately 300 pieces of corrugated sheets (M.S Plates 8’ x 4’ x 1.3 mm) currently loaded on the said motor vehicle, be unloaded by the Applicant under the supervision of the 1st Respondent at the Police Station and thereafter be collected by the owner thereof.
d) THAT the costs of this application be provided for.
2. The application is premised on the grounds set out therein and the supporting affidavit sworn by the Applicant on 13th February 2026. The Applicant averred that he is the registered owner of the aforesaid motor vehicle and operates a transport business through which he hires out the said vehicle for transportation of goods.
3. The Applicant deponed that on 8th January 2026, the subject motor vehicle was hired by one Mr. Haron Muthini for purposes of transporting approximately 200 pieces of corrugated sheets (M.S Plates) from Mombasa Cement Corrugated Sheet Limited to Machakos. The said goods were being transported by the Applicant’s authorised driver, Mr. David Nyamu, when upon reaching Mariakani Weighbridge, the vehicle was intercepted by officers from the Directorate of Criminal Investigations. The driver was subsequently arrested.
4. The Applicant further stated that since 8th January 2026, the continued detention of the motor vehicle has deprived him of its use, thereby occasioning substantial financial loss, including the termination and/or suspension of previously secured transport contracts. He further explained that he had purchased the motor vehicle through a loan facility from Equity Bank Limited, which loan was being serviced from income generated by the vehicle. As a result of the detention, he is unable to remit the monthly instalments.
5. The Applicant acknowledged awareness that the goods being transported may have been obtained through the commission of a criminal offence. He nevertheless contended that even where a motor vehicle is required for purposes of investigation, courts ordinarily exercise discretion to release the same to its registered owner upon reasonable conditions, including an undertaking to avail the vehicle whenever required.
6. He further informed the court that photographs of the motor vehicle and the impounded goods were taken at the time of impoundment at Mariakani Weighbridge and retained by the investigating officers. The Applicant maintained that the impounded goods do not belong to him, but to the said Mr. Haron Muthini.
7. The application was opposed by the State through grounds of opposition dated 9th March 2026. Learned Counsel Mr. Sirima submitted that the Applicant had failed to demonstrate sufficient grounds warranting the issuance of the orders sought. Counsel further faulted the Applicant for failing to present himself before the investigating officer to record a statement and provide proof of ownership of the motor vehicle. It was also contended that since the Applicant had conceded that the vehicle was involved in the commission of a crime, the same was liable to forfeiture upon proof of the offence.
8. The Court has considered the application, the grounds of opposition, and the submissions on record. The issue for determination is whether the application is merited.
9. Upon consideration of the pleadings and applicable law, the Court makes the following determination:
a.
The seizure of the motor vehicle is provided for under Section 26(1) of the Criminal Procedure Code, while restitution of detained property is provided for under Section 177 of the same Act. Courts have rendered varying opinions regarding detention of motor vehicles pending production as exhibits in criminal proceedings.
In Abdi Abdalla Decosta v Republic [2019] KEHC 7732 (KLR), the Court held:
“Counsel for the applicant filed written submissions. He relied on Article 48 (Access to Justice) and Article 50 (Presumption of Innocence) of the Constitution. He also cited the authority of Republic v John Nganga Mbugua [2014] eKLR where Justice Mucheru observed as follows:
‘It is the practice in criminal cases that photographs will be taken by the scene of crime personnel of exhibits and scenes of crime which will be produced in evidence during the hearing. If it is possible to avail the exhibit itself, the photographs may also be produced. If the vehicle is released after its photographs are taken, no miscarriage of justice will be occasioned during the trial...’
The reasoning expressed in Republic v John Nganga Mbugua [2014] eKLR is quite apt. In my view, however, the motor vehicle should always be produced as an exhibit together with photographs taken of it before a release order is made. Once that is done, the vehicle may be released to the owner on condition that it shall not be sold, wasted, diminished in value, or otherwise dealt with in a manner that would render it unavailable to the Court should it be required for purposes of the proceedings.”
b.
In Republic v John Nganga Mbugua [2014] eKLR, the Court further held:
“It does not make any sense to keep the applicant’s motor vehicle, which is an income-generating asset, in police custody until the pending criminal case is finalized. The prosecution has not attempted to demonstrate why the vehicle should continue to be detained at the police station while the applicant is ready and willing to produce it during hearings.”
Similarly, in Jeremiah Kobia Munoro v Republic [2021] eKLR, the Court observed:
“…a motor vehicle parked in an open yard and unprotected from the hazards of weather is prone to serious damage and depreciation.
It will not serve the interests of justice to eventually release a mere ‘shell’ to the rightful owner at the conclusion of the trial. It may even expose the State to litigation where, at the end of the trial, there is no proof that the motor vehicle was acquired through proceeds of crime or where no compensation is awarded to the complainant, yet the vehicle has completely depreciated in value.”
c.
In the present case, the Applicant is the registered owner of Motor Vehicle Registration Number KDK 153D ISUZU FRR and was not arrested in connection with the alleged offence. He has explained that the vehicle was impounded while transporting goods on behalf of one Mr. Haron Muthini.
Although Mr. Sirima submitted that the Applicant failed to present himself at the police station and furnish proof of ownership, the Court is satisfied from the material placed before it that the Applicant is indeed the owner of the said vehicle.
Counsel for the State further contended that the Applicant had not recorded a statement with the investigating officer. The Court, however, does not see how this precludes the Applicant from recording such statement. The Applicant remains at liberty to record a statement at any time, and the police equally possess sufficient legal powers to require the same. Should investigations reveal his involvement in the alleged offence, the law provides appropriate mechanisms for further action.
d.
The issue of forfeiture, as raised by Mr. Sirima, cannot arise at this stage. Under Section 389A of the Criminal Procedure Code, forfeiture cannot be ordered where ownership of the property is known and has been established.
The Court is persuaded that the motor vehicle may be released to the Applicant subject to appropriate safeguards. Consequently, the application is hereby allowed on the following conditions:
i. The Investigating Officer shall take photographs of the motor vehicle in the presence of the Applicant and/or his advocate.
ii. The Applicant shall avail to the trial court a certified copy of the logbook together with the original logbook for purposes of verification of the chassis and engine numbers.
iii. The Investigating Officer shall retain the certified copy of the logbook for purposes of reliance during trial.
10. Accordingly, the application is allowed in the above terms.
11. It is so ordered.
DATED, SIGNED AND DELIVERED AT MOMBASA IN OPEN COURT/ONLINE THROUGH MICROSOFT TEAMS THIS 8TH DAY OF MAY 2026.
...HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the Presence of:
Mr. Sirima for the State
Bebora – Court Assistant