Ndungi v Directorate of Criminal Investigations & 2 others [2023] KEHC 23965 (KLR)

Ndungi v Directorate of Criminal Investigations & 2 others (Miscellaneous Criminal Application E076 of 2022) [2023] KEHC 23965 (KLR) (Crim) (24 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23965 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Miscellaneous Criminal Application E076 of 2022

DR Kavedza, J

October 24, 2023

Between

Muema Ndungi

Applicant

and

Directorate Of Criminal Investigations

1st Respondent

Director Of Public Prosecutions

2nd Respondent

Kenya Revenue Authority

3rd Respondent

Ruling

1. The applicant filed the notice of motion dated March 10, 2022 seeking the release of motor vehicle registration number KCD 672Y, Shackman Prime Mover Truck held by the Respondents at DCI headquarters, Mazingira Complex, Kiambu Road. The application is supported by grounds on the face thereof and a supporting affidavit sworn by the applicant of a similar date.

2. The averments made are that he is the registered owner of the said motor vehicle jointly with K-Rep Bank (now Sidian Bank). The bank was registered to secure their interest as financiers. The motor vehicle was preserved at the 1st respondent’s premises as an exhibit pending the hearing and determination of Milimani Criminal Case no. 1334 of 2019 Republic vs Kariuki & 7 others. That the matter was concluded on December 9, 2020 and there are no ongoing investigations or reasons to retain the motor vehicle. Before its impound, the motor vehicle was used for business purposes by the applicant and its continued detention is causing him untold loss and suffering. The vehicle is wasting away. He has since cleared his loan at K-Rep (now Sidian) Bank. He urged the court to release the motor vehicle.

3. The application is unopposed as the respondents were given an opportunity to file a response but did not.

4. The applicant filed written submissions in support of the motion. He reiterated the contents of the supporting affidavit and urged the court to grant the orders sought.

5. I have considered the application, the supporting affidavit, and the applicant's written submissions. The issue for determination is whether the motor vehicle should be released.

6. The motor vehicle herein is the subject of the criminal trial for it was allegedly used in transporting uncustomed goods. However, I note that from the lower court record, the trial was concluded on December 19, 2020 with the accused persons being discharged. In addition, there is nothing from the trial court’s record to indicate that the motor vehicle in issue is subject to forfeiture proceedings.

7. Having these matters in mind, and the fact that the vehicle is also used in the transport business and generates income for the owner, will not make sense to confine the vehicle into police custody. In the circumstances, there is no reason to impinge on property rights of the owner. I am borrowing from the wisdom in the decision in Republic v John Nganga Mbugua[2014] eKLR. Accordingly, I make the following Orders;i.Motor vehicle registration number KCD 672Y, Shackman Prime Mover Truck held by the 1st Respondent at DCI headquarters, Mazingira Complex, Kiambu Road shall be released to the applicant, Muema Ndungi.

RULING DATED AND DELIVERED VIRTUALLY THIS 24TH DAY OF OCTOBER 2023. ........................D. KAVEDZAJUDGEIn the presence of: