Ethics and Anti-Corruption Commission v Kandie (Miscellaneous Application E1389 of 2025) [2026] KEMC 16 (KLR)
The bottom line
#A Kenyan magistrate's court ruled it cannot hear property-rights challenges to seized documents — those claims belong in the High Court.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of a Magistrate's Court to determine a constitutional claim on the right to property arising from a search warrant
The Court lacks jurisdiction; the claim under Article 40 is outside its restricted human-rights jurisdiction limited to Article 25(a) & (b) and outside the post-search issues contemplated by section 121 of the CPC.
The Magistrates' Courts Act confers six clusters of jurisdiction, with the human-rights jurisdiction restricted to Article 25(a) and (b) claims. Criminal jurisdiction over search warrants is two-prong: issuing warrants under section 118 of the CPC and limited post-search issues under section 121. The Respondent's question was crafted as a constitutional question outside Article 25(a) and (b). Guided by the Supreme Court's holding in the Ojienda case that criminal investigation is not administrative action, the judicial review route is also unavailable. The proper forum is the High Court under Article 165(3).
Principles governing the issuance and execution of search warrants and the duration of retention of seized items
The Court restated the Royal Media/Ghani v Jones principles: reasonable grounds for believing an offence was committed, that the things are proceeds or material evidence, that the possessor is implicated, that things must not be kept longer than reasonably necessary, and that lawfulness is judged at the time of the search.
The Court traced the principle of legality from Entick v Carrington through Ghani v Jones and the Royal Media case, and the statutory framework in sections 118, 118A, 119, 120 and 121 of the CPC. Searches infringe privacy and property rights and must comply with Article 24. The Court also noted that if a copy will suffice, it should be made and the original returned, and that the Court issuing a warrant retains a supervisory role over the person executing it through the return requirement.
Legal principles established
#- The two-prong criminal jurisdiction of a Magistrate's Court in relation to search warrants is confined to hearing applications for search warrants under section 118 of the CPC and determining limited post-search issues (validity of the warrant, continued detention, restoration, preservation and disposition of seized things) under section 121 of the CPC.
- A Magistrate's Court's jurisdiction to determine claims relating to violation of human rights is restricted to the rights guaranteed by Article 25(a) and (b) of the Constitution; a claim that continued detention of seized documents violates the right to property under Article 40 falls outside that jurisdiction and belongs to the High Court.
- The state can only exercise that which is expressly authorised by law while an individual can do anything except that which is expressly proscribed by law; the onus lies on the state to demonstrate that a seizure was not only expressly authorized by law but also justified in law.
- A criminal investigation does not fall within the meaning of an administrative action under the Fair Administrative Action Act and cannot be presented as a judicial review question before a Magistrate's Court (per the Supreme Court in the Ojienda case, adopted).
Court orders
#- 1.The challenge raised by the Respondent is struck out.
- 2.The Respondent is at liberty to lodge the dispute at the appropriate forum.
- 3.Each party will bear their own costs.
- 4.The file is marked as closed.
- Jurisdiction invoked
- Sections 6, 118 and 121 of the Criminal Procedure Code and sections 6 and 8 of the Magistrates' Courts Act, 2015, read with Articles 165(3), 169(1)(a) and 169(2) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ethics and Anti-Corruption Commission v Kandie (Miscellaneous Application E1389 of 2025) [2026] KEMC 16 (KLR)", Case Analysis (2026). Milimani Miscellaneous Criminal Application No. 1389 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/16/eng@2026-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.