George Kabati Mburu v The Director of Public Prosecution, Kenya Revenue Authority & Officer Commanding Station (OCS) Malaba Police Station

f) That the Honorable Court do issue any other orders it deems expedient in the interest of justice. 2. The grounds in support of the application and reiterated in the Supporting Affidavit of George Kabati Mburu are as hereunder: a) That the standard practice is for the investigating officers or the scene of crime officers to process a motor vehicle take photographs and release the motor vehicle to the owner which has not been done to date. b) That no criminal charges relating to the detention of the motor vehicle have been brought against the applicant since interception and impounding of the vehicle and no warrants of arrest have been issued against either the applicant or the person who was in control of the motor vehicle at the time of interception. c) That the perpetual detention of the motor vehicle without formal charges or ongoing investigations is not only unlawful but also inflicts significant financial hardship to the applicant whose livelihood is intricately tied to the lawful use of the motor vehicle. d) That it is in the interest of justice that the application be allowed and that no prejudice shall be occasioned if the motor vehicle is photographed and released. 3. The application is opposed by the 1 st and 3rd Respondents vide a Replying Affidavit sworn by Tonny Rotich Prosecution Counsel on the following grounds: a) That the application is premature as there are investigations currently ongoing and the investigations are aimed at establishing the whereabouts of the missing driver of the subject motor vehicle, use of the said vehicle and uncovering the syndicate involved in procurement conveyance and distribution of smuggled ethanol. b) That Section 121 of the Criminal Procedure Code permits the lawful seizure and detention of property until investigations are concluded and the lawful authority of investigative bodies is not extinguished by the fact that no charges have been preferred against the applicant. c) That the subject motor vehicle remains a crucial part in the investigations and its removal from lawful custody will interfere with Ruling Misc. App No. E035 OF 2026 Hon. A.Z Ogange-R.M pg. 2

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the integrity and continuity of evidence and it is not standard practice that photographs be taken as each case is independently investigated. d) That absence of warrants of arrest against the applicant or the person who was controlling the motor vehicle does not render the detention unlawful. e) That there is nothing on record showing that one Njuguna Kamau is the owner of Panacea Zeal Limited or affirming that the subject motor vehicle was hired out to one Ivan Ouma and it is in the interest of justice that the application be disallowed. 4. The application is further opposed vide the 2 nd Respondent’s Replying Affidavit sworn on the 13th day of August 2026 by one Dennis Sitati on the following grounds: a) That on 28th June 2026, KRA officers, acting on intelligence intercepted motor vehicle KDQ 972M, Toyota Voxy along MalabaAdungosi Road. The driver fled and the vehicle was escorted to Malaba Police Station. b) That a verification exercise established that the vehicle was carrying 1,150litres of ethanol in 46 jerrycans. The applicant allegedly failed to produce an excise license, customs clearance documents, proof of payment of duties or documentation showing lawful importation or local procurement. c) That the ethanol had an assessed customs value of approximately Kshs. 163,495.50/= with tax implications of Kshs. 1,386,421.60 and that ethanol is a restricted good under the EACCMA and Excise Duty Act for its lawful importation, conveyance and handling. d) The 2nd Respondent maintains that the seizure and continued detention of the vehicle did not require a prior court order relying principally on Sections 153,211, 213 and 214 of EACCMA which empower the authorities to stop/search vehicles, seize vehicles liable to forfeiture and detain them pending conclusion of proceedings or a decision not to institute proceedings. e) The 2nd Respondent further contends that the vehicle and ethanol are material exhibits in the investigations concerning suspected offences, including conveying restricted goods and concealing imported goods. That investigations are aimed at tracing the driver and persons involved in the procurement and intended distribution of ethanol, and that premature release could compromise the evidence and any eventual forfeiture proceedings. Ruling Misc. App No. E035 OF 2026 Hon. A.Z Ogange-R.M pg. 3

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f) The 2nd Respondent is therefore opposed the Applicant’s request for release of the motor vehicle and avers that photographs or other measures could not adequately preserve the evidentiary and statutory interests. It also maintains that warehouse rent is a statutory charge under the EACCMA/EACCMR and cannot simply be waived by the Respondent without compliance with the applicable statutory and public finance framework. 5. This matter came up for directions on 17th August 2026 when parties agreed to have the application canvassed by way of written submissions. The matter was subsequently mentioned on 1 st September 2026 when parties confirmed having filed their respective submissions and the court reserved the matter for ruling on 28th September 2026. 6. From the onset, it is necessary to identify the nature of the applicant’s interest in the subject motor vehicle and the basis upon which its release is sought. The applicant avers that he is the registered proprietor of motor vehicle KDQ972M Toyota Station Wagon and has exhibited a motor vehicle search in support of that assertion. His case is that he had placed the vehicle with Panacea Zeal Africa Limited, a car hire company and that the vehicle was subsequently hired to one Ivan Ouma Omondi. He further states that he neither authorized nor anticipated the use of the vehicle for any unlawful purpose and that he has not been charged with any offence arising from the circumstances leading to its seizure. 7. Having considered the application, the affidavits, submissions and the respective positions of the parties, the substantive issues arising for determination are: a) Whether the Respondents have demonstrated a lawful basis for the continued detention of motor vehicle registration number KDQ 972M Toyota Voxy; b) Whether the Applicant has established a basis for the Court to order release of the motor vehicle notwithstanding the ongoing investigations; c) Whether photographing and documenting the motor vehicle would sufficiently preserve its evidentiary value; and d) Whether the Applicant has established a basis for an order concerning the waiver of warehouse rent. e) Whether the initial seizure and continued detention of the vehicle are lawful 8. There is no dispute that the motor vehicle was intercepted on 28 June 2026 while allegedly conveying 1,150 litres of ethanol contained in 46 jerrycans. The Respondents state that the driver fled upon interception Ruling Misc. App No. E035 OF 2026 Hon. A.Z Ogange-R.M pg. 4

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and that subsequent verification did not reveal customs clearance documents, an excise licence, evidence of payment of the requisite duties, or documentation demonstrating lawful importation or local procurement. 9. The Applicant, on the other hand, seeks release of the vehicle and proposes that it first be photographed so that its evidentiary features are preserved. 10. Section 153 of the East African Community Customs Management Act, 2004 (EACCMA) empowers customs officers, where they have reasonable grounds to believe that a vehicle is conveying uncustomed goods, to stop and search the vehicle. Section 211(1) provides that a vehicle made use of in the importation, removal, conveyance, exportation or carriage coastwise of goods liable to forfeiture is itself liable to forfeiture. Section 213(1) empowers an officer, police officer or authorised public officer to seize and detain a vehicle liable to forfeiture or which he or she has reasonable grounds to believe is liable to forfeiture. The Act expressly permits such seizure notwithstanding the fact that prosecution has been instituted or is about to be instituted. 11. The significance of section 213 is that the threshold for seizure is not proof beyond reasonable doubt that the vehicle is ultimately liable to forfeiture. It is the existence of reasonable grounds for believing that it is so liable. This was explained in Republic v Commissioner of Customs & Excise Ex-Parte Abdi Gulet Olus [2014] KEHC 3709 (KLR) where the High Court held that section 213 sets a lower threshold of reasonable grounds for believing that the vehicle is liable to forfeiture. The Court further recognized that, under section 211, a vehicle used to convey goods liable to forfeiture may itself become liable to forfeiture. 12. Applying that threshold to the present case, the circumstances disclosed by the Respondents, the interception of the vehicle while allegedly conveying a substantial quantity of ethanol, the driver's flight, and the absence of documentation demonstrating lawful importation or procurement were capable of furnishing reasonable grounds for the initial seizure. 13. I therefore find that the Respondents had statutory authority to initially seize and detain the motor vehicle. That, however, is not the end of the matter. 14. The question before this Court is not merely whether the vehicle could lawfully be seized on 28 June 2026. It is whether the circumstances Ruling Misc. App No. E035 OF 2026 Hon. A.Z Ogange-R.M pg. 5

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relied upon by the Respondents justify its continued detention at the time of determination of this application. 15. The 2nd Respondent rely heavily on sections 213 and 214 of EACCMA. Section 214 provides the procedure following seizure. Section 214(3) is particularly material. It contemplates, among other things, the situation where a person is being prosecuted for the offence by reason of which the thing was seized, in which event the thing is to be detained until determination of the prosecution and dealt with in accordance with section 215. 16. Section 215 then addresses the effect of conviction or acquittal. Where a person is prosecuted and convicted of the relevant offence, the conviction has the effect of condemnation of the thing liable to forfeiture. Upon acquittal, the court may order release of the thing to the person from whom it was seized or to the owner, subject to the statutory provisions. 17. The statutory scheme therefore draws a material distinction between a situation in which prosecution has already been instituted and one in which investigations are still ongoing and prosecution is merely contemplated. This distinction is important in the present case. 18. The Respondents have stated that investigations are ongoing and that the investigations are directed, inter alia, at tracing the driver and uncovering the persons involved in the procurement and intended distribution of the ethanol. They further state that appropriate criminal proceedings are intended. 19. However, no charge sheet has been placed before this Court demonstrating that criminal proceedings have been instituted against the Applicant or the driver. The position is therefore distinguishable from Kenya Revenue Authority & another v John Peter Akello & another [2021] KEHC 724 (KLR). In that matter, the seized motor vehicle was the subject of an existing criminal prosecution, and the Court considered section 214(3)(a) in that context. The Court held that where a person is being prosecuted for the offence by reason of which the thing was seized, the thing is to remain detained pending determination of the prosecution. 20. The facts presently before this Court are different. Here, the Respondents have demonstrated an intention to prosecute, but not an instituted prosecution. An intention to prosecute cannot be equated with an actual prosecution for purposes of section 214(3)(a). I therefore find Ruling Misc. App No. E035 OF 2026 Hon. A.Z Ogange-R.M pg. 6

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that the 2nd Respondent cannot rely on section 214(3)(a) as though a criminal case were already pending before a trial court. 21. On section 216 of EACCMA, it is my considered view that the statutory scheme does not contemplate an indefinite period of investigative detention. Section 216 provides a mechanism for dealing with a seized thing after a notice of claim has been made. The Commissioner may, within two months, require the claimant to institute proceedings for recovery or may himself institute proceedings for condemnation. Where neither course is taken within the prescribed period, the thing is ordinarily to be released, subject to the statutory proviso concerning prohibited or restricted goods. 22. The provision is significant because it demonstrates that EACCMA contains a statutory mechanism by which the question of liability to forfeiture is ultimately to be resolved. The Respondents cannot therefore rely upon the general proposition that "investigations are ongoing" without demonstrating how the continued physical detention of the vehicle fits within the statutory process. This is not to say that an investigation must be concluded immediately. Nor does the Court purport to direct the manner or pace of a lawful investigation. The point is narrower: continued detention of private property must have a demonstrated legal and factual justification. 23. The DPP opposes the application principally on the ground that section 121 of the Criminal Procedure Code permits lawful seizure and detention of property until investigations are concluded and that the absence of charges against the Applicant does not extinguish the investigators' authority. Section 121 CPC provides that where anything is seized and brought before a court, it may be detained until conclusion of the case or investigation, with reasonable care being taken for its preservation. Subsection (3) further contemplates restoration of the property where no appeal is made or no person is committed for trial, unless the court sees fit or is authorised or required by law to dispose of it otherwise. 24. The provision undoubtedly recognizes the legitimate need to preserve exhibits and property relevant to investigations. However, I do not read section 121 as conferring an unlimited or self-executing power to retain property indefinitely. The provision is concerned with property seized and brought before the court and its continued detention for purposes of an investigation or case, subject to reasonable care for its preservation. The courts have recognized that section 121 operates within the broader statutory framework governing seizure and preservation of property. In BERYL AKINYI MUGANDA v ETHICS & ANTI CORRUPTION Ruling Misc. App No. E035 OF 2026 Hon. A.Z Ogange-R.M pg. 7

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COMMISSION [2012] KEHC 4432 (KLR) the Court emphasized the connection between sections 118 and 121 CPC, noting that property seized pursuant to a search warrant is to be taken before the court and thereafter detained in accordance with the law. 25. In the present matter, however, the vehicle was seized pursuant to the specific customs powers under EACCMA. I therefore consider EACCMA to be the principal statutory framework against which its continued detention should be tested. Section 121 of the CPC cannot, in my view, be invoked to enlarge the powers conferred by EACCMA or to circumvent the specific statutory scheme governing seizure, detention and forfeiture under that Act. 26. I accordingly accept the DPP's proposition that the absence of a charge against the Applicant does not, by itself, render an otherwise lawful seizure unlawful. I do not, however, accept that the absence of charges is therefore irrelevant to the question whether continued physical detention remains justified. 27. The DPP and KRA both place considerable reliance upon ongoing investigations. The DPP states that investigations are intended to establish the whereabouts of the missing driver, establish the use of the vehicle and uncover the syndicate involved in the procurement, conveyance and distribution of the allegedly smuggled ethanol. The Court accepts that these are legitimate investigative objectives. 28. However, the Court must also consider the evidence placed before it as to the progress of those investigations. The Applicant's case is that the driver was disclosed. The Respondents have not demonstrated, with sufficient particularity, the investigative steps undertaken to trace or apprehend the driver following disclosure of his identity. The fact that the Respondents seek to trace the driver does not establish why the physical presence of the vehicle in their custody is indispensable to achieving that objective. 29. The Respondents further contend that the motor vehicle is a crucial exhibit and that its release may interfere with the integrity and continuity of evidence. They further contend that photographing vehicles is not standard practice in every investigation. I accept that an investigating authority may, in an appropriate case, require continued physical custody of an exhibit. The Court should not lightly interfere with a legitimate investigative process or dictate to investigators what evidence they should collect. The question, however, is whether this particular vehicle must continue to be physically detained. In Republic v Ruling Misc. App No. E035 OF 2026 Hon. A.Z Ogange-R.M pg. 8

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Commissioner of Customs & Excise Ex-Parte Abdi Gulet Olus [2014] KEHC 3709 (KLR), the High Court considered an application concerning a vehicle seized under EACCMA and recognized the statutory power of seizure. Importantly, however, the Court fashioned a conditional arrangement for release which included preservation of ownership documents and photographic documentation of the vehicle while leaving the customs authorities at liberty to pursue the statutory forfeiture process. This authority though not identical on its facts to the present case is instructive on the proposition that physical detention is not invariably the only means of preserving the evidentiary value of a motor vehicle. The Court is therefore satisfied that the evidentiary value of the vehicle can, in the circumstances, substantially be preserved by taking comprehensive photographs of its exterior and interior. 30. Section 211(1) EACCMA makes a vehicle liable to forfeiture where it has been used in the specified conveyance of goods liable to forfeiture. In Abdi Gulet Olus, the Court recognized that the owner's lack of personal involvement in the underlying offence does not, by itself, prevent the vehicle from being liable to forfeiture. Section 217 similarly provides that condemnation is not affected merely because the owner was not concerned in the act which rendered the thing liable to forfeiture. Accordingly, I do not accept any proposition that because the Applicant was not the driver, or has not himself been charged, the vehicle cannot lawfully be seized or potentially forfeited. That issue is separate from whether continued detention is necessary at this stage. The conditional release proposed herein will not determine the ultimate question of forfeiture. It merely addresses physical custody of the vehicle pending such determination. 31. The Court has considered the authorities cited by the Respondents on continued detention of seized vehicles. The authorities in which courts declined to release vehicles under EACCMA must be considered in their factual and procedural context. Of particular significance is Kenya Revenue Authority & another v John Peter Akello & another [2021] KEHC 724 (KLR) where the Court was dealing with an already instituted criminal prosecution. The Court noted that the seized vehicle and goods were exhibits in the pending criminal case and that section 214(3)(a), read with section 215, required their detention pending determination of the prosecution. The present case is materially different because no prosecution has been demonstrated to have been instituted. I therefore distinguish the authorities relied upon by the Respondents on that basis. 32. A separate issue arises from the Respondent's contention that the vehicle continues to attract warehouse rent under sections 42(3) and 68 of EACCMA and Regulation 84 of the East African Community Customs Ruling Misc. App No. E035 OF 2026 Hon. A.Z Ogange-R.M pg. 9

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Management Regulations, 2010. Section 42(3) provides that goods deposited in a Customs warehouse are subject to such rent and other charges as may be prescribed. Section 68 similarly concerns goods deposited in a Government warehouse. Regulation 84 provides for rent on goods deposited or deemed to be deposited in a customs warehouse. The wording of those provisions is important. They speak of goods deposited or deemed to be deposited in a Customs warehouse. 33. 34. The Respondent's affidavit, however, proceeds on the basis that those provisions automatically impose warehouse rent upon the motor vehicle itself merely because it has been seized and detained. In Luma Holdings Limited v Kenya Revenue Authority [2021] KEHC 7068 (KLR) the High Court considered a claim arising from the seizure and detention of a motor vehicle. The Court noted that sections 42 and 84 concerned goods deposited in customs warehouses and held that the truck in question was not "goods deposited" within the meaning of those provisions. The Court consequently found that, in the circumstances of that case, the truck ought to have been released without accruing warehouse rent. I am mindful that Luma Holdings is factually distinguishable from the present case. In that case, the investigations ultimately established that the goods on the truck had been stolen and neither the owner nor the truck was implicated in the customs offence. Here, KRA alleges that the vehicle itself was used to convey restricted goods and therefore invokes section 211. Nevertheless, the distinction remains important: potential liability of a vehicle to forfeiture under section 211 is not synonymous with automatic liability of the vehicle to warehouse rent under sections 42(3), 68 and Regulation 84. The Respondent must demonstrate the statutory basis upon which the particular charge is imposed. I therefore find that the affidavit evidence does not establish that warehouse rent automatically attaches to the motor vehicle itself merely because it is detained pursuant to section 213. Regulation 85 expressly empowers the Commissioner to waive the whole or part of the rent charges. In Republic v Cabinet Secretary National Treasury & another Ex-Parte Car Importers Association of Kenya [2016] KEHC 5539 (KLR) the Court recognized that statutory mechanism and held that a party seeking waiver ought to follow the procedure established by law rather than seek a peremptory order compelling the Commissioner to abdicate that statutory function. Accordingly, I would not issue a blanket order compelling waiver of warehouse rent in these proceedings. The Applicant's prayer for waiver is either premature or, to the extent that it challenges a specific charge, unsupported by a specific assessment placed before the Court. More importantly, warehouse rent cannot itself be used as an independent justification for continued detention unless the Respondent first Ruling Misc. App No. E035 OF 2026 Hon. A.Z Ogange-R.M pg. 10

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establishes the legal basis upon which that rent is chargeable against the particular property. 35. In concluding, the Court is conscious that the matter concerns suspected smuggling of ethanol, which the Respondents state is a restricted product and whose conveyance and distribution are subject to customs and excise controls. The Court is equally alive to the public interest in enforcement of customs laws and prevention of illicit trade. Nothing in this ruling should therefore be understood as determining that the goods were lawfully imported or that the vehicle is incapable of forfeiture. Those are matters to be determined through the appropriate statutory or criminal process. The narrower question is whether the physical detention of the vehicle is presently necessary to protect those interests. In my view, it is not. 36. The Court must balance the legitimate investigative and forfeiture interests of the State against the Applicant's proprietary interest and the practical consequences of continued detention. A conditional release that preserves the evidentiary record, while expressly leaving the Respondents free to commence and pursue the statutory process, sufficiently accommodates both interests. 37. Having considered the application, the affidavits, the submissions and the applicable law, I make the following orders: a) The application for release of motor vehicle registration number KDQ 972M, Toyota Voxy, is hereby allowed on the terms set out below. i) ii) iii) iv) Before the release of the motor vehicle, the Respondents shall cause the vehicle to be comprehensively photographed and documented, including its exterior, interior, chassis/VIN, registration particulars and any other feature reasonably considered relevant to the ongoing investigations. Upon compliance with the orders above, the motor vehicle shall be released to the Applicant. The release shall be without prejudice to the Respondents' statutory powers under EACCMA, including the power to institute appropriate criminal or forfeiture proceedings should the investigations disclose a basis for doing so. The prayer for waiver of warehouse rent is declined at this stage, without prejudice to the Applicant's right to pursue Ruling Misc. App No. E035 OF 2026 Hon. A.Z Ogange-R.M pg. 11

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v) any statutory remedy available under Regulation 85 of EACCMR in respect of any properly assessed warehouse rent. Each party shall bear its own costs. RULING DATED, SIGNED AND DELIVERED IN OPEN COURT AT MALABA SENIOR PRINCIPAL MAGISTRATES COURT THIS 28 TH DAY OF SEPTEMBER 2026. In the Presence of Ms. Waswanni Counsel for the Applicant Mr. Rotich Counsel for the 1st and 3rd Respondents N/A for the 2nd Respondent Court Assistant: Paul Otieno A.Z. OGANGE RESIDENT MAGISTRATE 28.09.2026 Ruling Misc. App No. E035 OF 2026 Hon. A.Z Ogange-R.M pg. 12

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