Prosecutor v Kibiru Wambugu alias Newton, Eric Gaturi Kihara, Peter Mwangi Kihara & Ephraim Kanyolo Katwa [2022] KEHC 2684 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINAL CASE1 OF 2020

PROSECUTOR.................................................... REPUBLIC

VERSUS

KIBIRU WAMBUGU ALIAS NEWTON......1ST ACCUSED

ERIC GATURI KIHARA ..............................2ND ACCUSED

PETER MWANGI KIHARA .........................3RD ACCUSED

EPHRAIM KANYOLO KATWA..................4TH ACCUSED

RULING

This matter now comes up for the application dated 12. 3.2021. The substantive prayer relevant in this ruling is prayer 1, that:

“THAT this honourable court be pleased to order the Officer in Charge (O.C.S) Embakasi police station to release motor vehicle registration No. KCR 384W, Honda Fit, together with all the items entered in the inventory thereof to wit Fire Extinguisher, First Aid Kit, Spare Tyre, Tool Box of assorted spanners and triangular set to the registered owner.”

It was submitted by learned counsel for the applicant, Mr. Omamo that the said vehicle belongs to Newton K. Wambugu, 1st applicant. That the said motor vehicle remains abandoned at the police station while it is not a crime scene. Counsel cited the case of Republic Versus John Ng’ang’a Mbugua (2014)eKLR, in which the court had noted that the practice is that photographs may be taken of the vehicle for it to be released to the owner. That this motor vehicle was an Uber on loan. Lastly, that there is no evidence provided, linking the said vehicle as an exhibit.

Ms. Kimani for the prosecution, opposed this application on grounds that the motor vehicle is the one the deceased was driving as an Uber driver employed by 1st applicant. That it is believed that the motor vehicle was used to ferry the body to the scene where it was found and so, it is preserved as an exhibit. Counsel relied on Mbogore Peter Mwauri Versus Republic (2021)eKLR, in which the court ordered for detention of the vehicle in a similar case.

I have considered the submissions of both sides, the affidavits and the annextures to the same. Several factors have come out during the hearing of this application which I deem important in considering whether or not it would be proper and in the interest of justice to order the release of this motor vehicle to its owner. There is no doubt that 1st applicant is the registered owner of this motor vehicle, a fact demonstrated by way of the attached log book. The motor vehicle prior to its detention operated as a taxi and source of income and livelihood to its owner. The same has remained grounded at Embakasi police station from 11. 11. 2019 (according to date of the inventory).

The prosecution has opposed release of this vehicle on the basis that it is a crime scene and on exhibit. It has however, not been confirmed to this court whether or not same has been processed and photographed as a crime scene or exhibit. Further, the assertion of the applicant that he in fact drove the motor vehicle to the police station before it was detained is not denied.

The applicant has based his submissions on the case of Republic Versus John Ng’ang’a Mbugua (2014)eKLR, in which the court held;

“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 hearing. If it is possible to avail the evidence 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.

It does not make sense to keep the vehicle of the applicant which is an income generating asset in police custody until the pending criminal case is finalized.”

I fully associate myself with the above observations in view of the fact that the circumstances in the above quoted case appear to be similar to those of our instant case. I am therefore convinced that this is a case where it would be fair, just and in the interests of justice that the said motor vehicle be released to its registered owner on appropriate conditions, which conditions would ensure that the case of the prosecution is not prejudiced.

I accordingly allow the application dated 12. 3.2021 in terms of prayer 1 of the same on the following conditions:-

i. THAT the investigating officer in conjunction with the DCI, Embakasi do proceed and take photographs of the motor vehicle. Registration number KCR 384, within 30 days, before the same may be released to its owner, 1st applicant.

ii. The 1st applicant to deposit in the log book to motor vehicle KCR 384W for custody and security in court.

iii. The 1st applicant, upon receipt of the said motor vehicle, is ordered never to dispose, transfer and or sell or part with possession of the motor vehicle till this case is determined.

iv. The 1st applicant to produce the said motor vehicle before court on all hearing dates of this case till this case is determined.

Since the other prayers to this application regarding the motor vehicle registration number KCE 834A were already settled by the orders of the court of 20. 9.2021, this application dated 12. 3.2021 accordingly allowed. Orders accordingly.

D. O. OGEMBO

JUDGE

3. 2.2022.

Ruling read out in court in the presence of Mr. Omamo for the applicant and Ms. Kimani for the state.

D. O. OGEMBO

JUDGE

3. 2.2022.