VISHAL VIJAY MEHTA VS The Republic AND BENJAMIN ABUKEYA AND 2 Others VISHAL VIJAY MEHTA VS The Republic AND BENJAMIN ABUKEYA AND 2 Others

INTRODUCTION.

The applicant by way of a notice of a motion dated 29^th January 2024 moved this court by way of revision under Section 121,362 and 364 of the Criminal Procedural Code Cap 75 of the Laws of Kenya , as read together with Articles 35, 50 (2) (i) and 165 (6) of the Constitution seeking to have this court quash the orders of the learned Honorable magistrate in Makadara Criminal Case E488 of 2023 made on 10^th January 2024 releasing exhibits to a third party.
In support of the application the application the applicant filed on affidavit sworn by one Vishal Vijay Mehta on 1^st January 2024.

ANALYSIS AND DETERMINATION.

According to the applicant on 8^th August 2022 DCI officers from Makadara Police Station stormed their go down in the company of persons from the interested party and confiscated 20 rolls of Jumbo.
The confiscation was allegedly done because the 20 rolls were believed to have been stolen from the interested party.
Following the confiscation, the deponent was arrested and charged in Makadara CM’s CR Case No. E4887 of 2023.
After pleading not guilty the appellant moved the court to have the rolls released to him but the court declined citing the fact that all the accused persons were laying claim to the goods so the court found the request by the applicant to be premature on the 10^th June 2023.
The honorable court later on the 18^th January 2024 ordered that the goods be released to the interested party upon an application by the interested party.
It is not quite clear to this court what happened to the claim by all the accused over those goods.
The matter to date is still partly heard and the last hearing date as per the record appears to have been scheduled for the 10^th June 2024 but since the original file was before this court, the matter could not proceed.
The applicant contends that the release of the goods was improper and irregular since the case is still on going thus the release order is prejudicial to him.
The interested party through Mohamed Zein deposed that when the applicant sought release of the goods to him the same was declined and there after the interested party moved the court by way of a letter dated 14^th December 2023 for release of the goods and the interested party.
The said Mohammed Zein goes on in his affidavit date sworn on the 20^th February 2024 in response to this application that the goods were released to them for safe custody since the police did not have adequate space to store them.
It must be stated unequivocally here that the duty of securing exhibits until they are produced in court rests with the investigating agency until they are produced in court as exhibits. It is only after production and reception in evidence that the court can the direct on their storage as an exhibit of the court.
At paragraph 22 the interested party states that the goods were produced by the prosecutor as exhibits and photographs taken and presented to the court.
The photographs are indeed in the criminal court file.
The record of 18^th January 2024 shows that the goods were verified to be the same goods removed from the applicants go-down and the prosecutor produced the same and the defense counsel did not object. An issue arises from the procedure adopted by the prosecutor and the court in the production of the exhibits.
This court takes notice that the manner in which the goods were produced was irregular. The prosecutor cannot in law produce an exhibit since he is not a witness in the case. The court ought not to have allowed that to happen irrespective of whether the defense counsel objected to the production or not. It is the sole duty of the court to ensure that rules of procedure in a trial are strictly adhered to in order to ensure that all the accused persons have a fair trial.
The proper thing to do in the circumstances would have been to call the witness who impounded the goods, swear him and have him produce them.
The trial court erred in allowing the production by the prosecution counsel directly because counsel could not be cross-examined on any matter in connection with impounding and the chain of custody of the goods from the point they were collected to the date of production. The matter proceeded as though the action of the police of releasing the goods to the complainant was legal and proper.
The issue of chain of custody is so crucial since it can destroy the whole of the prosecutions’ case. The court in this matter was simply called in to sanitize an illegal act of the investigator.
The prosecutions must at all times avoid the following chain of custody errors:-
Contamination of crime scenes
Failure to properly document evidence at the time of collection and or recovery
Improper handling of evidence by persons who are not intended to be called as witnesses in a trial
Improper storage of evidence which may make the evidence to be tainted or to be interfered with before production.
The chain of custody if broken may compromise the integrity of the evidence leading to doubts as to its authenticity, originality, accuracy and relevance of the exhibit to the trial.
The record of 18^th January 2024 shows that it was the prosecutor who informed the court that the police had no adequate space to store the exhibits. The information could only be useful to the court if it was tendered in evidence by the investigating officer or the Evidence Custodian of the Police but cannot just be a statement from the bar.
The matter before court being a case of breaking into a building and committing a felony contrary to Section 306 of the Penal Code and taking into account that the exhibits were impounded from the applicant’s premises obviously the issue of ownership of the goods would be central in the determination of the guilt or innocence of the accused persons.
It does not lie in the discretion of an investigator to handover intended exhibits to a complainant. If indeed the police had challenges with storage, nothing would have been easier than for them to move the court through the prosecutor for preservation of the goods in situ to avoid moving them from the go down they were found in.
The investigating officer in a criminal case must retain possession of the exhibit until such time it is received in evidence by the court and once produced as an exhibit an appropriate order for storage or disposal may be made.
To release the impounded goods to the complainant even before their production in court is prejudicial not only to the accused but also likely to compromise the justice of the case.
The release before production is tantamount to a finding of guilt against the accused before the hearing and in effect impacts on the right to a fair trial.
The learned Honorable magistrate should have proceeded with caution in making the order after it was clear to the court that the goods had been unproceduraly released to the complainant.
To proceed and verify the exhibits at the premises of the complainant when the same had not been produced before the court, that in this courts view amounted to an act of sanitizing the irregular and unprocedural act of the investigators.
It follows logically that where an accused person pleads not guilty to a charge which is premised on recoveries made from him, unless the accused expressly denies ownership of the same, the issue of ownership remains a triable issue and it cannot be wished away by the investigator. The court would definitely be called upon at the end of the trial to pronounce itself on the ownership of the property and order restitution.
The alternative counts of handling stolen property in this matter also point to the burden placed upon the prosecutor to prove that the goods where indeed stolen. It is absolutely necessary for trial courts handling criminal trials to ensure that properties whose ownership is at the heart of the trial, such property is held by the investigator until the same is produced in evidence and orders for preservation are made pending the determination of the case.

In the case of Director of Public Prosecution Vs Ibrahim Asala Mahangwa & 2 Others [2022] eKLR the court held:-
‘18. I think that the possibility of loss of the benefit of the exhibit by way of interference with the chain of custody and the possibility of damages wear and tear through accident is a compelling factor, which in the circumstance of this case call for the presentation of the vehicle before the court in evidence before an order for release. It is the question of forfeiture which must await in determination of the trial which does not require the physical custody of the vehicle with the court, and it may be released to the owner subject to the orders of the court upon the end of the trial, the restrictions on dealings thereof securing at least the physical loss. The court cannot insure against loss of the vehicle by loss of value on account of accident in the course of use, and the comparative benefit of use of the vehicle for the innocent until proven guilty accused or owner of the vehicle, as the case may be, would in my view out weight the loss of value of forfeiture of the motor vehicle in the end.
19. Apart from the order for presentation of the motor vehicle in evidence before the order for release, a further order for expeditious trial may also lessen the time for conclusion of the matter and determination of whether or not to forfeit, in the interests of Applicant owner, the prosecution, and the accused. The court shall impose a time line with which to present the vehicle in evidence.

Further, under Section 121 of the Criminal Procedure Code property that is seized following an operation in the course of an investigation must be detained until the same is brought before a court. The section provides:-

(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

It should be noted that this statutory provision is aimed at ensuring that the provisions of Article 50 of the Constitution on the Presumption of Innocence the right to a fair trial and the Right to property under Article 40 of the person charged with a criminal offence are not compromised in the course of a trial.
It is therefore the duty of the prosecutor and the magistrate presiding over a matter to ensure that the accused’s rights are protected and respected throughout the trial.
In conclusion I find and hold that the action of releasing property seized in the course of an investigation by the police to the complainant was against the express provision of the Section 121 of the Criminal Procedure Code and the order by the magistrate that the property be retained by the complainant was incorrect, improper and or illegal considering that the trial is yet to be concluded.
That order is hereby set aside and the entire ruling by the learned Honorable magistrate is hereby quashed.
In the end, the properties seized from the go-down of the applicant by the police shall be retained by the police and in order to avoid any inconveniences that may be associated with storage, I direct that the hearing of the criminal matter should proceed on a day -to -day basis until its final conclusion so that all parties are afforded a fair opportunity to ventilate their respective cases.
The parties are at liberty to approach the trial court for orders of preservation of the exhibit pending trial to avoid wasting.
It is so ordered.

VISHAL VIJAY MEHTA VS The Republic AND BENJAMIN ABUKEYA AND 2 Others

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