[2004] KEHC 1462 (KLR)
The court found that the application was fatally defective because the appellant failed to specify the legal provisions under which the application was brought and did not annex the necessary documents, such as the contentious order, to enable the court to properly consider the grievance. The court emphasized that...
Source-derived case information.
- Citation
- [2004] KEHC 1462 (KLR)
- Parties
- Appellant: David Juma Mwashi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 10 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application
- Outcome
- application dismissed
- Judges
- JW Gacheche
- Legal Topics
- Criminal Appeals, Interlocutory Applications, Procedure for Filing Appeals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Juma Mwashi
Appellant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the application was properly before the court in the absence of the relevant order and legal provisions cited.
- 2 Whether the appellant's grievance was sufficiently particularized to enable the court to determine the matter.
- 3 Whether the application was premature and devoid of merit.
Ratio Decidendi
The court found that the application was fatally defective because the appellant failed to specify the legal provisions under which the application was brought and did not annex the necessary documents, such as the contentious order, to enable the court to properly consider the grievance. The court emphasized that it is not the duty of the court or the respondent to speculate on the applicable law or the orders being appealed against. The application was also found to be premature and lacking in merit, leading to its dismissal.
Court Disposition
application dismissed
Orders
- The application is hereby dismissed.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
MISC CRIMINAL APPLICATION 10 OF 2004
DAVID JUMA MWASHI ……………………………………………………………APPELLANT
VERSUS
REPUBLIC ……………………………………………………………………… RESPONDENT
RULING
The application before me emanates from the appellant who appears to have been dissatisfied with an order delivered on 21. 4.2004 by the Senior Resident Magistrate, in charge of Children’s Court at Eldoret.
The petition of appeal which is record, having been filed in 30. 4.2004 displays 5 grounds, and if I understood Mrs Nyaundi, the appellants counsel well, her client is aggrieved by the fact that the learned trial Magistrate decline to dismiss the case against him and instead adjourned it severally.
Unfortunately, I am unable to get the full gist of the grievance, as the applicant failed to annex all documents such as the contentious order, to enable the court deal with the matter from a position of knowledge.
Be that as it may, the applicant does not indicate under which order he has moved the court, again leaving the court to grope in the dark.
Counsels are very well aware of the fact that he who doesn’t state clearly, what provisions of the law he chooses to move the court under does so at his own peril. Counsels must be clear and concise in their applications. It is not for the court or the respondents counsel to start guessing which would be the applicable law, or even then which are the orders which a party wishes to appeal against. Days of ambiguity in application in these courts should be brought to an end.
I find that the application is not only devoid of merit, but that is premature.
I do in the circumstances decline to grant the orders being sought herein and application is hereby dismissed.
Dated and delivered at Eldoret this 11th day of May 2004.
JEANNE GACHECHE
JUDGE
Delivered in presence of;