Tahmeed loses bid to recover truck, container in Sh4.4m bhang trafficking case

The High Court has overturned an order that released a truck and container belonging to Tahmeed Transporters Limited involved in a Sh4.47 million bhang trafficking cases.

Justice Francis Kyambia set aside orders issued by Kikuyu’s Senior Principal Magistrate K. Cheruyiot on July 15, 2026, allowing Tahmeed to repossess the truck and container that were preserved as court exhibits.

In the case, Joel Mwakasungu, a driver of the said truck, was charged with trafficking bhang worth Sh4,470,000 in April 2026.

The Director of Public Prosecution (DPP) filed an appeal seeking to set aside the magistrate's orders releasing the truck and the container to the transport company.

The DPP said that the said truck and container are crucial evidence before the lower court case and may be subject to forfeiture depending on the outcome of the trial.

Justice Kyambia said that any item seized under Sections 75 and 78 of the Narcotic Drugs and Psychotropic Substances Control Act cannot be released to the owners, and the same may be subject to forfeiture unless the accused is cleared by the courts.

Justice Kyambia said that the police hold the power and duty to preserve exhibits before they are produced in court.

“Flowing from the foregoing, I find that the application herein is merited, and the orders issued on July 15, 2026, are hereby set aside in their entirety,” said Justice Kyambia.

In his judgment, Justice Kyambia observed that the lower court records did not indicate that the DPP participated during the hearing of the application to release the truck and the container.

“The ruling does not seem to have considered the replying affidavit by the applicant (DPP) sworn on May 5, 2026. " That was clearly irregular, as the applicant was condemned unheard,” said Kyambia.

Justice Kyambia said that it is a general procedure that an exhibit forms part of the evidence once it has been presented for identification and for consideration by the court on whether the same can be admitted as an exhibit or not depending on the legality of the same.

He said it is also a generally accepted principle that all evidence to be relied upon during a trial must be preserved by the investigators of the case.

“In the instant case, it is clear that the container and the vehicle in question were not presented before the trial court before the order of release was made,” said Justice Kyambia.

The judge, however, said that a court has jurisdiction to restore property to an individual it believes to be entitled to it pursuant to the provisions of Section 177(a) of the Criminal Procedure Code. After considering the circumstances, the said property should be released.

In its application, the DPP said that the release of the exhibits will occasion prejudice to its case, as the said container and the vehicle are direct evidence of the mode and mechanism of trafficking alleged against the Mwakasungu; as such, their physical availability may be required.

Further, the DPP told Justice Kyambia that the said truck and container were not presented before the trial court before the order of release was made.

The DPP argued that it was not given an opportunity to be heard before the orders releasing the container and vehicle were made despite the fact that the application was opposed.

On its defence, Tahmeed told Justice Kyambia that it has cooperated with the investigators, and the continued holding of the properties by the police is detrimental to the interested party as it continues to suffer financial loss.

The transporter said that no criminal prosecution has been preferred against them and has committed and undertaken to have the said container and the vehicle produced in court when required.

Tahmeed said that the container is an asset which was contracted to execute a particular purpose and was in transit back to Mombasa as an empty container.