[2008] KEHC 548 (KLR)
The court held that the applicants' notices of motion were incompetent because they failed to comply with the mandatory procedural requirement that such applications be brought by way of petition under Rule 12 of the relevant High Court Practice and Procedure Rules. As a result, the court struck out the applications...
Source-derived case information.
- Citation
- [2008] KEHC 548 (KLR)
- Parties
- Appellant: Charles Mathenge Ndengu; Appellant: Francis Muya Wakabutu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 54 & 61 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- applications struck out as incompetent
- Legal Topics
- Right to Be Brought to Court Within 24 Hours, Constitutional Petitions, Criminal Procedure Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Mathenge Ndengu
Appellant
Francis Muya Wakabutu
Appellant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the applicants' constitutional rights under Section 72(3) of the Constitution were violated by being detained for more than 24 hours before being taken to court.
- 2 Whether the applications are competent given the procedure used was by notice of motion instead of petition as required by the rules.
Ratio Decidendi
The court held that the applicants' notices of motion were incompetent because they failed to comply with the mandatory procedural requirement that such applications be brought by way of petition under Rule 12 of the relevant High Court Practice and Procedure Rules. As a result, the court struck out the applications without considering the substantive constitutional complaint.
Court Disposition
applications struck out as incompetent
Orders
- The applicants' notices of motion are struck out.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Misc Crim Appli 54 & 61 of 2008
CHARLES MATHENGE NDENGU……...…1ST APPELLANT
FRANCIS MUYA WAKABUTU…….....…….2ND APPELLANT
VERSUS
REPUBLIC………………………………….…..RESPONDENT
RULING
The applicants who are charged at Molo RM’s court with non-capital offences allege in their notices of motion dated 17th and 21st July 2008 respectively that they were detained for periods of more than 24 hours before they were taken to court thus contravening their constitutional rights under Section 72(3) of the Constitution. They therefore seek the dismissal of the charges in the Molo court for being unconstitutional.
Rule 12 of the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of The Individual) High Court Practice and Procedure Rules, 2006 requires that applications such as these ones should be brought by way of petitions. That was not done in either of these cases and I therefore agree with Mr. Njogu, learned state counsel, that the applicants’ notices of motion are incompetent. I accordingly strike them out.
DATED and delivered at Nakuru this 18th day of September, 2008.
D. K. MARAGA
JUDGE