[2018] KEHC 3564 (KLR)
The court found that neither the applicant nor their counsel attended the hearing of the applications on the scheduled date, nor did they provide any explanation or representation for their absence. Similarly, the 1st and 2nd respondents were absent without explanation. In the absence of prosecution or attendance by...
Source-derived case information.
- Citation
- [2018] KEHC 3564 (KLR)
- Parties
- Applicant: Alphonce Peter Manyele; Respondent: Fahimi Ahmed Sheikh; Respondent: Jibril Ahmed Sheikh; Respondent: The O.C.S Diani Police Station; Respondent: The D.C.I.O Diani Police Station; Respondent: The Inspector General of Police; Respondent: The Hon. Attorney General
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 194 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Applications
- Outcome
- applications dismissed for want of prosecution
- Legal Topics
- Stay of Criminal Proceedings, Release of Property, Malicious Prosecution, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alphonce Peter Manyele
Applicant
Fahimi Ahmed Sheikh
Respondent
Jibril Ahmed Sheikh
Respondent
The O.C.S Diani Police Station
Respondent
The D.C.I.O Diani Police Station
Respondent
The Inspector General of Police
Respondent
The Hon. Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Applications
Legal Issues
- 1 Whether the applicant is entitled to a stay or bar of criminal proceedings relating to complaints by the 1st and 2nd respondents.
- 2 Whether the applicant is entitled to the release of the original log book for motor vehicle registration No KBK 139 W.
- 3 Whether the applicant is entitled to the release of Ksh 500,000 held on account of alleged charges.
Ratio Decidendi
The court found that neither the applicant nor their counsel attended the hearing of the applications on the scheduled date, nor did they provide any explanation or representation for their absence. Similarly, the 1st and 2nd respondents were absent without explanation. In the absence of prosecution or attendance by the applicant, the court exercised its discretion to dismiss both applications dated 11th October 2017 and 16th October 2017 for want of prosecution. The court emphasized the importance of parties attending court and prosecuting their applications diligently, failing which the court is entitled to dismiss such applications to avoid unnecessary delays and abuse of process.
Court Disposition
applications dismissed for want of prosecution
Orders
- The applications dated 11th October 2017 and 16th October 2017 are dismissed for want of prosecution.
- Costs to be in the cause.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISCELLENOUS CRIMINAL APPLICAINT NO 194 OF 2017
ALPHONCE PETER MANYELE...................................APPLICANT
VERSUS
FAHIMI AHMED SHEIKH
JIBRIL AHMED SHEIKH
THE O.C.S DIANI POLICE STATION....................RESPONDENTS
THE D.C.I.O DIANI POLICE STATION
THE INSPECTOR GENERAL OF POLICE
THE HON. ATTORNEY GENERAL
RULING
1. Vide a Notice of Motion application dated 11th October, 2017, the Applicant, ALPHONCE PETER MANYELE sought for the following orders;
(a) the application to be certified as urgent and service to be dispensed with the first instance;
(b) the Honourable court be pleased to stay and/or bar any criminal proceedings against the applicant in relation to the complaints made by 1st and 2nd Respondents pending the hearing and determination of this application;
(c) the Honourable court be pleased to order the 1st, 2nd ,3d and 4th Respondents jointly and severally, to release the applicants original log book for motor vehicle registration No KBK 139 W;
(d) this Honourable court be pleased to order the 3rd and 4th respondents to release the sum of Ksh 50,0000/= held on account of alleged charges to be brought against the applicant at Kwale Law courts since 2017;
(e) the honourable court be pleased to order the Respondents jointly and severally, to cease harassing the Applicant herein;
(f) the Respondents be ordered to pay general damages for malicious prosecution.
2. The application is premised on the grounds on the face of the application and supporting affidavit of ALPHONCE PETER MANYELE.
3. The application was certified urgent, Applicant ordered to serve the respondents and for a hearing date to be fixed in the registry on priority basis. The hearing date of the application was fixed for 23. 10. 2017.
4. And on 16. 10. 2017, the applicant filed another notice of motion application together with supporting affidavit annexure marked “APM-5” under certificate of urgency seeking for warrant of arrest issued by Kwale Law courts lifted and the said proceedings in Cr case No. 713 of 2017 stayed.
5. The application is premised on the grounds on its face and supporting affidavit of the Applicant.
6. The application was also certified as urgent and prayer 1 and 2 of the application granted. The hearing was fixed for 23rd October, 2017.
7. On 23. 10. 2017, when the application came up for hearing, counsel for the applicant, Ms Mukoya indicated that they had not served the 1st and 2nd Respondents with the same since they had not been able to trace them. She also stated that they had also not been served with responses from 3rd to 6th Respondents although she had seen a replying affidavit by them.
8. M/s Ocholla, counsel for the state confirmed that they had been served with the application dated 11th .10. 2017 and that they had filed a replying affidavit and grounds of opposition on 19. 10. 2017, which they were yet to serve upon the Applicant, 1st and 2nd Respondents . She under took to serve them with the same before close of business that day. She further indicated to court that they had not been served with the application dated 16. 10. 2017, to which Ms. Mukoya, counsel for the Applicant responded by saying that they had served 3rd and 6th Respondents and there was an affidavit to confirm the same.
9. The court proceeded to give directions to the parties to serve each other with their various documents and fixed the case for mention to confirm this before fixing a hearing date.
The matter came up for mention four times to confirm service by parties upon each other and on 20. 3.2018, the applications were fixed for hearing for 21st May, 2018.
10. Today, the 21st May, 2018 the applications came up for hearing, the same having been fixed in the presence of counsel for the Applicant and the state, who represents 3rd to 6th Respondents.
11. However, neither the applicant and or their counsel attended court for the hearing. They also did not sent an explanation or representation to explain their absence. The 1st and 2nd Applicants were also absent without any explanation or representation.
12. In the circumstance, there being no appearance or explanation by the applicant, 1st and 2nd Respondents and or their counsel, the application dated 11. 10. 2017 and 16. 10. 2017 be and are hereby dismissed respectively.
Costs to be in the cause.
Ruling delivered, signed and dated this 21st day of May, 2018.
LADY JUSTICE D. O. CHEPKWONY
In the presence of;
M/s Ocholla, counsel for 3rd to 6th Respondents
No appearance by counsel for Applicant
No appearance for counsel for the 2nd an 3rd Respondents
No appearance by Applicant , 1st and 2nd Respondents
C/clerk- Beja