The Kisumu High Court has revised orders detaining a suspect in police custody, ruling that the law does not allow remand for offences punishable by a fine or short-term imprisonment.
In a judgment delivered on March 12, 2026, Justice Joe Omido overturned an earlier order issued by a subordinate court in a matter involving Maxmillan Motai Nyagwaya.
The case arose from proceedings in Kisumu Miscellaneous Criminal Application No. E086 of 2026, where the State had applied for the suspect to be detained for 14 days to allow police to complete investigations.
“The application herein, who is the respondent in Kisumu miscellaneous criminal application No. E086 of 2026, was presented before the lower court on March 11, 2026 where the state applied for him to be detained in police custody for 14 days pending the conclusion of police investigation,” Justice Omido stated in the ruling.
According to the affidavit filed by the investigating officer, the applicant was suspected of committing the offence of mutilating currency notes under Section 367A of the Penal Code.
“As per the affidavit of the investigating officer filed in the lower court file, which is before me, the offence that the applicant is suspected to have committed, in respect of which investigations are in gear, is that of mutilating currency notes to section 367A of the penal code, cap 63 laws of Kenya,” the judge said.
The law provides that anyone who defaces or mutilates currency commits an offence punishable by a maximum sentence of three months imprisonment, a fine not exceeding Sh2,000, or both.
Justice Omido said: “Any person who wilfully and without lawful authority or excuse defaces, tears, cuts or otherwise mutilates any currency note shall be guilty of an offence and shall be liable to imprisonment for a term not exceeding three months or to a fine not exceeding two thousand shillings or to both such imprisonment and fine.”
Despite this provision, the lower court had ordered that Nyagwaya be detained at Central Police Station in Kisumu pending a ruling scheduled for March 25, 2026.
However, through a letter dated March 12, 2026, the applicant’s lawyer moved to the High Court seeking revision of the order under Article 49(2) of the Constitution and Sections 362–367 of the Criminal Procedure Code.
Justice Omido noted that Article 49(2) clearly protects suspects from custodial remand where the offence carries a penalty of only a fine or imprisonment not exceeding six months.
“The maximum penalty under section 367A is therefore within the constitutional threshold prescribed in Article 49(2), such that remand in custody for an offence punishable by imprisonment not exceeding six months is constitutionally prohibited,” the judge ruled.
He further faulted the lower court for ignoring the constitutional provision.
“There are no two ways about it. The order went against the constitutional provision. I need not say more,” he said.
The judge added that the High Court has supervisory authority over subordinate courts and can intervene where illegal or improper orders are made.
In the final orders, Justice Omido ruled that the custodial remand was unlawful and must be set aside.
“The proceedings taken and subsequent orders for custodial remand issued on March 11, 2026 in Kisumu Miscellenious Criminal Application No E086 of 2026 are hereby revised and quashed,” the judge ruled.
He ordered that Nyagwaya be released immediately.
“The applicant shall therefore be released forthwith from Central Police Station Kisumu noting that no criminal charges have been preferred against him unless he is otherwise lawfully detained,” Justice Omido directed.
The court also ordered that the lower court file be closed, saying the application for custodial remand should never have been entertained because of the constitutional prohibition.
