[2012] KEHC 3148 (KLR)
The court found that the applicant's multiple applications, including for anticipatory bail, professional negligence, and defamation, were not properly before the court. The issues regarding the confirmed grant should be addressed in the relevant Succession Cause, professional conduct complaints should be taken to...
Source-derived case information.
- Citation
- [2012] KEHC 3148 (KLR)
- Parties
- Applicant: Benjamin W. Barasa; Respondent: Republic (State Counsel); Respondent: Mrs Elizabeth Namusasi Wangila; Respondent: M/s Omukunda & Co. Advocates; Respondent: M/s Bulimo & Co. Advocates; Respondent: Okile & Co. Advocates
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Criminal Application 3 of 2011
- Procedural Posture
- Criminal Application / Ruling
- Outcome
- applications struck out as incompetent and abuse of process
- Judges
- AO Muchelule
- Legal Topics
- Anticipatory Bail, Abuse of Process, Professional Negligence, Defamation, Succession Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benjamin W. Barasa
Applicant
Republic (State Counsel)
Respondent
Mrs Elizabeth Namusasi Wangila
Respondent
M/s Omukunda & Co. Advocates
Respondent
M/s Bulimo & Co. Advocates
Respondent
Okile & Co. Advocates
Respondent
Procedural Posture
Criminal Application / Ruling
Legal Issues
- 1 Whether the applicant is entitled to anticipatory bail based on fear of arrest and torture.
- 2 Whether the complaints regarding professional negligence and defamation against the advocates are properly before this court.
- 3 Whether the dispute over the confirmed grant and related land transaction can be addressed in this application.
Ratio Decidendi
The court found that the applicant's multiple applications, including for anticipatory bail, professional negligence, and defamation, were not properly before the court. The issues regarding the confirmed grant should be addressed in the relevant Succession Cause, professional conduct complaints should be taken to the Law Society of Kenya, and disputes with Elizabeth Namusasi Wangila should be brought in an appropriate civil suit. The initial application for anticipatory bail was compromised by the subsequent complaints and motions, rendering all applications incompetent and an abuse of the court process. Consequently, all applications were struck out with costs.
Court Disposition
applications struck out as incompetent and abuse of process
Orders
- All applications on record are struck out with costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT BUNGOMA
Criminal Application 3 of 2011
BENJAMIN W. BARASA..................................................................PLAINTIFF/APPLICANT
~VRS~
REPUBLIC (STATE COUNSEL).......................................1ST DEFENDANT/RESPONDENT
MRS ELIZABETH NAMUSASI WANGILA.....................2ND DEFENDANT/RESPONDENT
M/S OMUKUNDA & CO. ADVOCATES........................3RD DEFENDANT/RESPONDENT
M/S BULIMO & CO. ADVOCATES...............................4TH DEFENDANT/RESPONDENT
OKILE & CO. ADVOCATES..........................................5TH DEFENDANT/RESPONDENT
RULING
When on 1/2/2011 the Applicant filed a notice of motion in this miscellaneous file he was seeking to be arrested by the court and released on bail. The anticipatory bail was sought because he feared police officers were going to arrest him following a complaint by various people in regard to a land transaction. He feared he would be arrested and tortured. The application was pending hearing when he placed in the file another motion dated 13/1/2012 against Mrs. Elizabeth Namusasi Wangila, m/s Omukunda & Co. Advocates, M/s Bulimo & Co. Advocates and M/s Okile & Co. Advocates charging them with colluding with police. He also charged the advocates with professional negligence. Lastly, he alleged the Respondents had defamed him. That motion was still pending when on 2/2/2012 he filed another motion complaining that police had illegally confined him, he had been forced to transfer land using a forged certificate of confirmation of grant, and other matters. On 13/1/2012 he had filed a motion to amend the first motion in the file.
Looking at the affidavits of the Applicant and Elizabeth Namusasi Wangila there is a dispute between them regarding some confirmed grant, monies paid between them, fees demanded by the advocates and then there is a complaint regarding professional advise that was got from the advocates. Somewhere along the line, police were investigating the Applicant.
The applications on record cannot be used to address any of these complaints. The complaint in regard to the confirmed grant can be addressed in the relevant Succession Cause. A complaint about the professional conduct of the advocates should be addressed to the Law Society of Kenya, and any dispute between him and Elizabeth Namusasi Wangila should be brought in an appropriate suit. The initial application for anticipatory bail has now been compromised by these other complaints and applications.
It is for these reasons that I find all these applications have no basis in law, are incompetent and an abuse of the process of the court. They are all struck out with costs.
Dated, signed and delivered at Bungoma this 5th day of July 2012.
A. O. MUCHELULE
JUDGE