A police officer aims his gun at protesters on Old Namanga Road in Kitengela during the Saba Saba protests on July 7, 2025.
Police may lawfully enter a suspect’s home and conduct searches without a court warrant during narcotics investigations where reasonable suspicion exists, the High Court ruled in a precedent-setting judgment supporting the State’s fight against drug trafficking.
The court held that such searches do not automatically violate the constitutional right to privacy if officers demonstrate urgency and circumstances that would render obtaining a warrant impractical.
“While the right to privacy and protection against unauthorized searches is constitutionally guaranteed, it must coexist with reasonable limitations that meet the threshold set out in Article 24 of the Constitution,” the Constitutional court sitting in Nairobi stated.
The ruling arose from a petition filed by Cheme Adano Hirbo and his wife, Ralia Hussein Abdullahi. The couple accused police of forcibly entering their Mihango home in Kayole, Nairobi, in January 2025, conducting a search without a warrant, and arresting Ms Abdullahi after allegedly recovering narcotics.
They argued that the operation violated their constitutional rights to privacy, dignity, security, and a fair trial, urging the court to halt their prosecution.
Ms Abdullahi told the court that unidentified masked men, heavily armed and without identifying themselves or presenting a warrant, broke into her home, damaging doors and windows.
She said they brandished firearms at her and her children, causing immense distress, fear, and physical intimidation. At the time, she was heavily pregnant.
Warrantless searches
However, the Directorate of Criminal Investigations (DCI) countered that the raid followed the interception of a pickup truck along the Nakuru-Nairobi highway carrying 80 packages of cannabis concealed in a false compartment.
Investigators stated that the arrested driver identified Mr Hirbo as his employer and led officers to the Mihango residence, where more packages were allegedly found.
The DCI argued that officers acted swiftly without a warrant to prevent evidence from being destroyed, a claim the court found reasonable.
The petitioners maintained that the search was illegal due to the lack of a warrant, but the court ruled that narcotics investigations may justify warrantless searches if delay would compromise the operation.
“The statutory power, invoked on reasonable suspicion and exigent circumstances, was reasonably and justifiably employed,” the court said, dismissing the petition.
It added that while privacy is constitutionally protected, it may yield to lawful limitations combating serious crimes.
Citing Section 73(5) of the Narcotic Drugs and Psychotropic Substances (Control) Act, the court emphasised the balance between privacy rights and public interest in curbing drug-related threats to health, security, and the rule of law.
The court declined to exclude the seized evidence, stating that compliance with statutory conditions should be determined by the trial court. With the constitutional petition dismissed, the criminal case against Mr Hirbo at the JKIA Chief Magistrate’s Court will proceed.
Narcotics investigations
The judgment clarifies judicial interpretation of police powers under the Act during fast-moving investigations, permitting warrantless searches if officers document reasons showing that judicial authorisation would hinder the operation.
Courts, it said, should not interfere with lawful police actions absent clear abuse of power.
The court found no evidence that DCI officers acted arbitrarily or disproportionately, instead concluding they responded to rapidly unfolding events after intercepting a drug shipment.
However, the judge stressed that statutory safeguards remain crucial in assessing evidence admissibility later.
Factors such as the conducting officer’s rank and whether reasons were recorded must be scrutinised during trial, the court noted, adding that such determinations fall to the magistrate overseeing criminal proceedings, not a constitutional court.
The court dismissed the petition for lack of merit, a ruling that sets a precedent for future challenges to warrantless searches in urgent narcotics investigations.
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