[2021] KEHC 13043 (KLR)
The court found that the judicial review application had been dormant for an extended period, with the applicant failing to appear or prosecute the matter and the respondent having withdrawn the applicant's name from the underlying criminal case. The court reasoned that there was no longer any live issue or interest...
Source-derived case information.
- Citation
- [2021] KEHC 13043 (KLR)
- Parties
- Applicant: Alice Gulenywa Jonathan; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 67 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Status and Closure of Dormant Judicial Review Application
- Outcome
- application marked as abandoned; file closed
- Judges
- GL Nzioka
- Legal Topics
- Judicial Review, Stay of Proceedings, Warrants of Arrest, Abandonment of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alice Gulenywa Jonathan
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Status and Closure of Dormant Judicial Review Application
Legal Issues
- 1 Whether the continued existence of the judicial review application serves the interest of justice given the applicant's absence and lack of progress.
- 2 Whether the file should be closed and the application marked as abandoned due to inactivity and apparent loss of interest by both parties.
Ratio Decidendi
The court found that the judicial review application had been dormant for an extended period, with the applicant failing to appear or prosecute the matter and the respondent having withdrawn the applicant's name from the underlying criminal case. The court reasoned that there was no longer any live issue or interest from either party, and the continued existence of the file did not serve the interests of justice. Accordingly, the application was marked as abandoned and the file closed to prevent wastage of judicial resources on a matter where both parties had lost interest.
Court Disposition
application marked as abandoned; file closed
Orders
- The application herein is marked as abandoned.
- The file is marked as closed.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
MISC CRIMINAL APPLICATION NO. 67 OF 2010
ALICE GULENYWA JONATHAN ................APPLICANT
VERSUS
REPUBLIC ......................................................RESPONDENT
RULING
1. On 16th April 2008, the applicant herein; Alice Gulenywa Jonathan and two (2) others were arraigned in court, charged vide, criminal case number 540 of 2008, in Chief Magistrate’s Court at Makadara, with the offences; of forgery contrary to; section 350 of the Penal Code in the first count, and obtaining money by false pretence, contrary to section 313 of the Penal Code in count 2 and 3.
2. The applicant did not appear before court for plea, wherein on 4th August 2008, upon prosecution request, a warrant of arrest was issued. In the meantime, the applicant moved to the High Court vide Judicial Review Miscellaneous application number 287 of 2008.
3. On 11th June 2008, the applicant was granted leave by Hon. Justice Dulu to apply for judicial review, by way of certiorari to quash the proceedings in the said Chief Magistrate’s court and applications numbers; 97 and 98 and/or apply for a similar order for prohibition of continuity of the criminal case in the Chief Magistrate’s court.
4. The leave granted was to operate or apply as a stay of decision of the Respondent to arrest, charge and prosecute, her in relation to the criminal case. On 17th February 2010, the Judicial Review Miscellaneous Criminal Application file number 287 of 2008, was transferred to the Criminal division by Hon. Lady Justice (retired) Gacheche, and the matter assigned a criminal case number miscellaneous criminal application number 67 of 2010.
5. On 18th February 2010, the court ordered the application be served for inter-parties hearing. On 15th April 2013, the court was informed the State had struck out the applicant’s name from the charge sheet in criminal case number 540 of 2008 and on 23rd April 2013, the applicant sought for a mention date for the parties to record a consent.
6. The matter was subsequently, mentioned on several occasions as the parties were still engaged in negotiations. However, on 5th February 2019, the applicant was not in court and an order was given that; summons be issued for her to appear in court; on 20th February 2019. On that date, she was not present and neither was her lawyer. A further mention date was fixed for 20th March 2019.
7. On 7th April 2019, a warrant of arrest was issued against the applicant. The subject warrant of arrest has been in force since then to date. In fact, the matter has been mentioned on more than ten (10) times for the last two years, to get information on the status of warrant of arrest.
8. This court became seized of this matter on; 31st May 2021 and realized that, there is no progress in the matter and it has been dormant, for long. It is against this background that; the ruling herein is informed.
9. In that regard, it is indeed clear that, despite issuance of several warrants of arrest, no efforts seem to have been made to arrest the applicant and bring her before the court. Be that as it were, the question that has to be asked is; why is the court looking for the applicant. Who filed the subject application? What was it seeking for?
10. From the history of the matter as aforesaid, it is the applicant who moved to court to stop the criminal prosecution and obtained stay orders. If the Respondents are aggrieved by the stay orders they move the court to vacate them. Indeed, the subject of the order issued in the judicial review matter is a criminal appeal number 540 of 2008. That case was filed about 13 years ago. Is that case still on going?
11. It is not surprising that the applicant has lost interest in this matter. In fact, as aforesaid, the record indicates that, the Respondent herein had opted to withdraw her name from the criminal case.
In that case, the continuity of this matter is not serving the interest of justice. The court has no reasons whatsoever to keep “dead” or dormant files where the parties have lost interest, in the matter. I therefore order that the application herein be marked as “abandoned” and the file be marked as closed.
It is so ordered.
DATED DELIVERED VIRTUALLY AND SIGNED THIS 7TH DAY OF JUNE 2021
GRACE L. NZIOKA
JUDGE
In the presence of:
Ms Kibathi for the State
Edwin - Court Assistant
No appearance for the applicant