[2001] KEHC 224 (KLR)
The court found that the order specifying the period for the bond to keep peace was made in the absence of the applicants, which constituted a fundamental irregularity. Such an irregularity is incurable as it affects the rights of the parties and the fairness of the proceedings. Consequently, the order made on 30th...
Source-derived case information.
- Citation
- [2001] KEHC 224 (KLR)
- Parties
- Applicant: Abdalla Chege; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 375 of 2001
- Procedural Posture
- Criminal Application / Application for Revision Under Sections 362 and 364 of the Criminal Procedure Code
- Outcome
- Order of 30th January, 2001 set aside; retrial ordered before another court of competent jurisdiction.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Revision Jurisdiction, Bond to Keep Peace, Irregularity in Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdalla Chege
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Application for Revision Under Sections 362 and 364 of the Criminal Procedure Code
Legal Issues
- 1 Whether the trial magistrate's omission to specify the period for the bond to keep peace was curable.
- 2 Whether setting the period for the bond in the absence of the applicants was irregular and incurable.
Ratio Decidendi
The court found that the order specifying the period for the bond to keep peace was made in the absence of the applicants, which constituted a fundamental irregularity. Such an irregularity is incurable as it affects the rights of the parties and the fairness of the proceedings. Consequently, the order made on 30th January, 2001 was set aside, and a retrial was ordered before a different court of competent jurisdiction to ensure compliance with procedural fairness and the law.
Court Disposition
Order of 30th January, 2001 set aside; retrial ordered before another court of competent jurisdiction.
Orders
- The order of 30th January, 2001 is set aside.
- There shall be a retrial of all the applicants before another court of competent jurisdiction.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI CRIMINAL APPLICATION NO 375 OF 2001
ABDALLA CHEGE………………………………………………………APPLICANT
AND
REPUBLIC………………………………………………………….….RESPONDENT
14/6/2001
Coram: Mbogholi J
COURT
This matter is before me under Sections 362 and 364 of the Criminal Procedure Code.
The applicants herein appeared before the learned trial magistrate and undertook to execute bonds to keep peace. Their surety(ies) were approved by the court.
The learned trial magistrate however, inadvertently, omitted to specify the period for the observance of the order.
Subsequently the period was limited to 12 months. However, when the said period was being set, none of the applicants was present. That was irregular and that irregularity is incurable. Accordingly, the order of 30th January, 2001 is hereby set aside. There shall be a re-trial of all the applicants before another court of competent jurisdiction.
Orders accordingly.
Dated and delivered at Nairobi this 14th day of June, 2001
A.MBOGHOLI MSAGHA
JUDGE