Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
MagistrateStruck OutNot stated in the judgment (Application by Notice of Motion dated 30th April 2025)

Ethics and Anti-Corruption Commission v Wandugi (Miscellaneous Application E605 of 2025) (Crim) [2025] KEMC 213 (KLR)

Milimani Anti-Corruption Court (Magistrates' Court)
16 September 2025
COC.N. Ondieki
12,069 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~48 min to read original · ~4 min brief

The bottom line

#

A Kenyan magistrate's court can hear challenges to executed search warrants, but only narrow ones—broader rights claims must go to the High Court.

What this practically means

#

Executive summary

#
The Ethics and Anti-Corruption Commission (EACC) obtained an ex parte search warrant from the Milimani Anti-Corruption Court on 2nd May 2025 under sections 118 and 118A of the Criminal Procedure Code, to search the Respondent's premises in connection with investigations into a public official's alleged unexplained wealth, abuse of office and money laundering. The warrant was executed. When the matter came up for mention, the Respondent challenged the search on three grounds: that the search was conducted unlawfully and contrary to the court's orders; that her rights to privacy and protection from self-incrimination were violated, including by publication of the search on the Applicant's X handle; and sought a declaration that the search was illegal and an order for return of seized items. The Applicant responded that the warrant having been executed, the court was functus officio and the challenge was overtaken by events. The court framed five questions and held, first, that a Magistrate does not become functus officio upon issuance or execution of an ex parte search warrant; an affected party may challenge the search afterwards under the court's supervisory role under section 121 CPC. Second, however, the court held that the Respondent's claims presented a mixed grill of judicial-review and general human-rights issues (Articles 28, 31, 50) falling outside the Magistrate's Court's restricted criminal jurisdiction over search warrants and its human-rights jurisdiction limited to Article 25(a) and (b). Relying on the Supreme Court's Ojienda decision that criminal investigation is not an administrative action, the court held the proper forum for the whole dispute is the High Court. It struck out the challenge, gave liberty to refile in the appropriate forum, ordered each party to bear their own costs, and closed the file.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court which issued a search warrant ex parte becomes functus officio upon issuance and execution thereof.
  2. 2.Whether this Court is clothed with jurisdiction to determine the particular questions and/or issues raised by the Respondent.
  3. 3.Whether the search was conducted in accordance with the law and the orders of this Court (dated 2nd May 2025).
  4. 4.Whether the Respondent's rights to privacy and protection from self-incrimination were violated.
  5. 5.The remedies available to the Respondent, if any.

Key legal issues

#
01

Functus officio upon issuance and execution of an ex parte search warrant

Holding

A Magistrate does not become functus officio; an ex parte order is not final and the affected party may challenge the search afterwards before the issuing court.

Reasoning

The inherent nature of an ex parte order is that it is not conclusive. The affected party cannot challenge the warrant before the search; section 121 CPC contemplates that after execution the Respondent may challenge the search for any reason and the issuing Magistrate may pronounce on the dispute, following the Manfred case and EACC v Mohammed. The only determinative factor is whether the issues fall within the Magistrate's jurisdiction on search warrants.

p. 6
02

Jurisdiction of the Magistrate's Court to determine the Respondent's challenge

Holding

The court lacks jurisdiction; the Respondent's claims mixed judicial-review and general human-rights issues beyond the restricted criminal jurisdiction over search warrants and the Article 25(a) & (b) human-rights jurisdiction.

Reasoning

A Magistrate's Court's search-warrant jurisdiction covers only issuing warrants under s.118 CPC and post-search issues under s.121 CPC, plus claims limited to Article 25(a) & (b) violations. The Respondent's claims on privacy (Article 31) and innocence/dignity fell outside these clusters; criminal investigation is not an administrative action per the Ojienda case, foreclosing judicial review in a subordinate court. A court without jurisdiction must down tools.

p. 19
03

Forum for the mixed grill of issues

Holding

The proper forum for the Respondent's mixed human-rights and judicial-review claims is the High Court, under the appropriate rules and with the precision required by Anarita Karimi Njeru.

Reasoning

Guided by forum conveniens and avoiding piecemeal litigation, the court held that where a dispute raises issues both within and beyond a Magistrate's jurisdiction, all issues should be resolved in one appropriate forum, the High Court, presented under the Fair Administrative Action Rules 2024 or the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules.

p. 18

Legal principles established

#
  • A Magistrate's Court does not become functus officio upon issuance of an ex parte order such as a search warrant; the affected party is entitled to challenge the search afterwards before the same court.
  • The criminal jurisdiction of a Magistrate's Court in relation to search warrants is restricted to issuing warrants under section 118 CPC and determining limited post-search issues (validity, detention, restoration, preservation, disposition) under section 121 CPC.
  • Where a dispute presents a cocktail of human-rights and judicial-review issues beyond the Magistrate's restricted search-warrant jurisdiction, the appropriate forum is the High Court.
  • The State can only exercise power expressly authorised by law while an individual may do anything except what is proscribed by law; the onus lies on the State to show the seizure was authorised and justified in law.

Court orders

#
  1. 1.The challenge raised by the Respondent is struck out.
  2. 2.The Respondent is at liberty to lodge the dispute at the appropriate forum, invoking the appropriate procedure.
  3. 3.Each party will bear their own costs.
  4. 4.The file is marked as closed.

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

CO
majority

Wrote the judgment

Jurisdiction invoked
Sections 118, 118A and 121 of the Criminal Procedure Code read with section 6 of the Magistrates' Courts Act, 2015; Articles 169(1)(a) and 169(2) of the Constitution

Relief refused

#

Determination of whether the search was conducted in accordance with the law and the orders of 2nd May 2025

The issues fell outside the Magistrate's Court's restricted criminal jurisdiction in relation to search warrants

p. 19

Declaration that the search was illegal and unconstitutional and return of items seized

The claims raised a mixed grill of human-rights and judicial-review issues beyond the court's jurisdiction; the appropriate forum is the High Court

p. 18

Costs

Each party will bear their own costs.

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

On basis of the foregoing principal reason, the challenge raised by the Respondent is accordingly struck out.
p. 19Disposition - striking out of the challenge
The Respondent is at liberty to lodge the dispute at the appropriate forum, of course invoking the appropriate procedure.
p. 19Liberty to refile in the High Court
It is directed that each party will bear their own costs.
p. 19Costs
This file is marked as closed.
p. 19Closure of file
Wherefore this Court concludes that I did not become functus oficio after issuance of the search warrant ex parte, on 2nd May 2025.
p. 7Functus officio
This file is marked as closed.
p. 19Final orders

Issues in the judgment

#
minor

The name of the Respondent is not stated anywhere in the judgment; parties are referred to only as 'the Applicant' and 'the Respondent'.

minor

Several authorities relied on by the Applicant are cited incompletely with '(sic)' annotations, lacking full citations.

minor

Typographical errors in the judgment, e.g. 'fiex' for 'fix', 'oficio' for 'officio', and heading numbering '(iii) ... (v) ... (v)' for questions (iii), (iv) and (v).

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ethics and Anti-Corruption Commission v Wandugi (Miscellaneous Application E605 of 2025)  (Crim) [2025] KEMC 213 (KLR)", Case Analysis (2025). Not stated in the judgment (Application by Notice of Motion dated 30th April 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/213/eng@2025-09-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.