The High Court in Kisumu has ordered the immediate release of Maximilian Mutai, who had been detained after allegedly testing a currency note, ruling that the offence he was suspected of committing does not allow custodial remand under the Constitution.
In a ruling delivered in court, the judge found that the lower court’s decision to detain Mutai in custody at Central Police Station in Kisumu pending a ruling was unconstitutional.
The court held that the offence of mutilating currency notes under Section 367A of the Penal Code carries a maximum penalty of three months’ imprisonment or a fine of up to Ksh.2,000, or both.
The judge noted that such an offence falls within the protection provided under Article 49(2) of the Constitution, which prohibits remanding a suspect in custody for offences punishable only by a fine or imprisonment of not more than six months.
The court emphasised that subordinate courts must strictly follow the constitutional provision, which clearly bars custodial remand for minor offences carrying short prison terms.
The judge therefore found that the order issued on March 11, 2026, in Kisumu Miscellaneous Criminal Application No. E086 of 2026 directing that the applicant remain in police custody was irregular and improper.
Invoking its supervisory powers under Sections 362 and 364 of the Criminal Procedure Code, the High Court revised and quashed the custodial remand orders issued by the lower court.
The court directed that the applicant be released immediately from Central Police Station, Kisumu, noting that no criminal charges had been formally filed against him.
Additionally, the court ordered that the lower court file be closed, stating that the application for custodial remand should not have been entertained in the first place because of the constitutional prohibition under Article 49(2).
The Deputy Registrar was also directed to serve the orders on the officer commanding Central Police Station, Kisumu, and place a copy of the ruling in the lower court file.
