The High Court has ruled that detectives violated the Constitution and the law when they arrested social media user Halima Ngache in Mombasa, transferred her to Nairobi and seized her electronic devices without first obtaining a court search warrant.
In a landmark ruling delivered on Tuesday, Justice Alexander Muasya Muteti held that while police were entitled to arrest Ngache without a warrant over allegations of cyber harassment, investigators acted unlawfully by transporting her to Nairobi instead of presenting her before the nearest court in Mombasa and by conducting a warrantless search of her home. The judge further found that the custodial orders issued by the Milimani Chief Magistrate’s Court on July 1, allowing detectives to detain Ngache for three days pending investigations, were irregular because they were founded on evidence obtained through an unlawful search and seizure.
Ngache had moved to the High Court seeking revision of the magistrate’s orders after she was arrested at her home in Kazandani, Mombasa County, on June 30, 2026. She argued that detectives violated her constitutional rights by arresting her without explaining the reasons, denying her access to her family and lawyer, transporting her to Nairobi, and confiscating her phones, tablet and laptop without a search warrant.
The Directorate of Criminal Investigations (DCI) had identified Ngache as a person of interest in investigations into alleged cyber harassment under the Computer Misuse and Cybercrimes Act. Detectives claimed she was linked to the X account @sholard_mancity, which allegedly published information relating to President William Ruto’s flight. Investigators maintained that the offence under investigation was cognizable, allowing police to arrest her without first obtaining a warrant. They also argued that the electronic devices were lawfully seized during the arrest because they were believed to contain crucial digital evidence and that urgent action was necessary to preserve it.
However, Justice Muteti drew a distinction between the legality of the arrest and the legality of the subsequent search. The judge held that police had sufficient intelligence before travelling from Nairobi to Mombasa to know they intended to recover electronic gadgets allegedly used in committing the suspected offence. Because the seizure of those devices was anticipated, investigators ought to have first sought a search warrant under Section 118 of the Criminal Procedure Code.
“The arrest may have been lawful but the search and seizure could not be justified,” the judge ruled.
He observed that the officers did not stumble upon the electronic devices by chance during the arrest but deliberately went to Ngache’s residence expecting to recover computers and mobile phones allegedly used to publish the disputed information. Justice Muteti said the failure to obtain a search warrant amounted to a violation of Ngache’s constitutional right to privacy under Article 31 of the Constitution.
The court further warned that any evidence extracted from the illegally seized electronic devices could be excluded from future criminal proceedings under the constitutional doctrine that prohibits courts from admitting evidence obtained through violations of fundamental rights.
In an extensive analysis, the judge noted that modern mobile phones contain highly personal information, including financial records, medical data and private communications, making judicial oversight through search warrants essential before investigators can access such devices. Justice Muteti also faulted investigators for transporting Ngache from Mombasa to Nairobi before presenting her to court.
“The police therefore ought to have presented the applicant at the Mombasa Law Courts,” Justice Muteti said, adding that if investigators wished to have the matter handled in Nairobi, they should have first sought lawful transfer orders after her appearance before the local court.
The judge rejected the State’s argument that the Serious Crimes Unit’s location in Nairobi justified bypassing the legal procedure. He said the decentralization of court services was intended to enable Kenyans to access justice close to where they are arrested and to safeguard their constitutional rights. Despite finding that Ngache’s transfer to Nairobi violated the law, the judge declined to nullify the proceedings before the magistrate’s court, holding that the lower court still had jurisdiction to hear the application for custodial orders.
However, he concluded that because the detention orders were meant to facilitate investigations using electronic devices that had been unlawfully seized, the orders themselves were improperly obtained.
“The order to detain the applicant in order to allow the investigator conduct investigations by exploiting gadgets that had been illegally seized from the applicant was irregular and improper,” Justice Muteti ruled.
By the time the High Court determined the matter, Ngache had already been released from custody after the expiry of the three-day detention period, rendering the custodial orders spent. The court therefore declined to formally quash the detention orders but declared that they had been irregularly issued.
Justice Muteti further ruled that Ngache is entitled to the return of all electronic devices seized during the arrest unless investigators continue to hold them under a separate lawful court order authorising their retention.
The ruling is expected to have significant implications for future cybercrime investigations by reinforcing the requirement that investigators obtain judicial warrants before searching and seizing electronic devices, even where a suspect has been lawfully arrested.
It also serves as a reminder that constitutional protections on privacy and due process remain applicable during criminal investigations and that courts will not sanction investigative shortcuts undertaken in violation of the law.
