Automated Summary
Key Facts
The applicant, William Ndavi, sought to set aside a search and seizure warrant issued by the Nairobi Chief Magistrates Court on May 22, 2024, which authorized police to search his office and residence for electronic devices linked to alleged cyber harassment and false information. The warrant was executed on May 28, 2024, resulting in the seizure of his Samsung Galaxy A24 phone and an HP Pro Book 430 G4 laptop. The applicant argued the warrant was based on insufficient evidence and that the police complaint by Olive Mugenda (then chair of Kenyatta University Teaching and Referral Hospital) was malicious, aiming to stifle his leadership in a medical union's industrial action. The High Court, citing Article 31 of the Constitution (right to privacy), ruled the lower court's order lacked sufficient factual basis and set it aside, noting new evidence in the replying affidavit was not before the lower court when the warrant was issued.
Issues
- Whether the execution of the search and seizure warrant violated the applicant's constitutional right to privacy under Article 31 of the Constitution, considering the ex-parte nature of the order and insufficient evidence.
- Whether the lower court had sufficient factual basis to issue the search and seizure warrant for the applicant's mobile phones and laptops, given the lack of plausible evidence and the absence of prior summons to the applicant.
Holdings
- The court determined that the search and seizure warrant issued on 22nd May 2024 was based on 'scanty averments' by the investigator, as critical materials from the replying affidavit were not presented to the lower court at the time of the order.
- The High Court affirmed its supervisory jurisdiction over subordinate courts under Article 165(6) of the Constitution and sections 362-364 of the Criminal Procedure Code, granting it the authority to review the lower court's order for search and seizure.
- The order for search and seizure was set aside due to lack of sufficient factual foundation and the need to uphold the applicant's right to privacy under Article 31 of the Constitution, without making a final finding on the allegations.
Remedies
The High Court set aside the entire order issued by the lower court on May 22, 2024, which granted a search and seizure warrant, finding that it was issued on scanty averments and without sufficient factual basis, and considering the right to privacy under Article 31 of the Constitution.
Legal Principles
- The High Court exercised its supervisory jurisdiction under Article 165(6) of the Constitution and review powers under sections 362-364 of the Criminal Procedure Code to assess the validity of a search warrant issued by a subordinate court. The court emphasized the need to evaluate whether the warrant was granted on sufficient factual basis and in compliance with procedural requirements.
- The court considered the constitutional right to privacy under Article 31 when determining the validity of the search and seizure order. The ruling highlighted the importance of balancing investigative needs with individual privacy rights.
Cited Statute
Computer Misuse and Cybercrimes Act 2018
Judge Name
Kanyi Kimondo
Passage Text
- So much so that the wide ranging ex-parte order for search and seizure of the applicant's office and residence was made without sufficient factual basis. I say so very carefully and without making a final finding. The warrant must also be looked at through the lenses of the right to privacy enshrined in Article 31 of the Constitution. I accordingly set aside the entire order issued by the lower court on May 22, 2024.
- I thus readily find that the warrant was issued on scanty averments by P.C. Noah Makokha at the time that the applicant 'authored and circulated the said malicious information either from his mobile phones, laptop or desktop computers'.