[2011] KEHC 2883 (KLR)
The court found that the petition did not disclose any reasonable cause of action against the 3rd, 4th, 5th, and 6th respondents, as the allegations were based solely on civil disputes and not on any acts or omissions by state actors that could amount to violations of constitutional rights. The responsibility for...
Source-derived case information.
- Citation
- [2011] KEHC 2883 (KLR)
- Parties
- Applicant: Colin Stuart; Respondent: The Commissioner of Police; Respondent: The Director, Criminal Investigations Dept.; Respondent: Sally Mullens; Respondent: Steve Mullens; Respondent: Alberto Soprani; Respondent: Wasini Island Limited; Respondent: Erick Mwawira; Respondent: Sally Ibere; Respondent: The Attorney General
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 124 of 2010
- Procedural Posture
- Constitutional Petition / Ruling on Application to Strike Out Petition
- Outcome
- petition dismissed as against 3rd, 4th, 5th, and 6th respondents; struck out as against 7th and 8th respondents
- Legal Topics
- Fundamental Rights Enforcement, Abuse of Process, Civil Disputes Vs Constitutional Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Colin Stuart
Applicant
The Commissioner of Police
Respondent
The Director, Criminal Investigations Dept.
Respondent
Sally Mullens
Respondent
Steve Mullens
Respondent
Alberto Soprani
Respondent
Wasini Island Limited
Respondent
Erick Mwawira
Respondent
Sally Ibere
Respondent
The Attorney General
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application to Strike Out Petition
Legal Issues
- 1 Whether the petition discloses a reasonable cause of action against the 3rd, 4th, 5th, and 6th respondents.
- 2 Whether the alleged violations of fundamental rights can be attributed to the respondents who are not state actors.
- 3 Whether the petition constitutes an abuse of court process in light of pending judicial review proceedings.
Ratio Decidendi
The court found that the petition did not disclose any reasonable cause of action against the 3rd, 4th, 5th, and 6th respondents, as the allegations were based solely on civil disputes and not on any acts or omissions by state actors that could amount to violations of constitutional rights. The responsibility for ensuring the protection of fundamental rights lies with the State, and the only proper respondent for such claims would be the Attorney General or relevant state organs. Furthermore, the existence of pending judicial review proceedings concerning the same subject matter rendered the petition an abuse of the court process. Consequently, the court dismissed the petition against the...
Court Disposition
petition dismissed as against 3rd, 4th, 5th, and 6th respondents; struck out as against 7th and 8th respondents
Orders
- The petition is dismissed as against the 3rd, 4th, 5th, and 6th respondents with costs.
- The petition is struck out as against the 7th and 8th respondents with no order as to costs.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
PETITION NO. 124 OF 2010
COLIN STUART.....................................................................................................PETITIONER
VERSUS
1. THE COMMISSIONER OF POLICE
2. THE DIRECTOR, CRIMINAL INVESTIGATIONS DEPT.
3. SALLY MULLENS
4. STEVE MULLENS
5. ALBERTO SOPRANI
6. WASINI ISLAND LIMITED
7. ERICK MWAWIRA
8. SALLY IBERE
9. THE ATTORNEY GENERAL ..................................................................RESPONDENTS
R U L I N G
This is an application by the 3rd, 4th, 5th and 6th Defendants for an Order to strike or dismiss the Petition Dated 8th November 2010 as against the Defendants. It is supported by an affidavit sworn by the Third Defendant on behalf of herself and the other three Respondents.
The Petitioner filed a Replying Affidavit sworn on 17. 02. 2011.
Counsel agreed to dispose of the application by written submissions. The Applicants duly filed their written submissions as ordered. However, the Petitioner failed to file his written submissions.
I have carefully considered the application and the affidavits on record. I have also considered the submissions made by the Applicants. I do find that:-
- From the alleged facts arising the Petitioners rights in respect of his fundamental freedom under the Constitution of Kenya can only have been denied violently, or infringed or threatened if such acts were carried out by the State.
-It is the responsibility of the State to ensure that these are properly carried out.
-The only allegation made in the Petition by the Petitioner in his affidavit is in regard to civil disputes between the Petitioner and the 6th Respondent.
-The Petition has been brought against the Applicants as parties based only on allegations of a civil dispute.
-The allegation of a fair trial can only be against the Attorney General as a Prosecutor or possibly a court of law.
I do find that the Petition discloses no reasonable course of action as against the Applicants. It is an abuse of the process of the court. This is particularly, so on the ground that the Petitioner filed judicial review proceedings which are still pending before this court and in which orders were granted staying Chief Magistrate’s Criminal Case No. 303 of 2010.
I therefore do hereby dismiss the petition as against the 3rd, 4th, 5th and 6th Defendants with costs.
As a logical consequence and suo motu, I do hereby strike out the Petition against the other individual Defendants namely, the 7th and 8th Defendants with no order as to costs.
Dated and delivered at Mombasa this 5th day of May 2011.
M. K. IBRAHIM
J U D G E
Coram:
Ibrahim, J
Court clerk – Kazungu
Ms. Oluoch for the applicants
No appearance for the Petitioner
Mr. Kamau for the Respondents (1st, 2nd and 9th)
Ruling delivered in their presence.
Ibrahim, J