[2004] KEHC 1631 (KLR)
The court found that the application was fatally defective due to the applicant's failure to specify the legal provisions under which the application was brought and the omission of the contentious order. The court emphasized that it is not the duty of the court or the respondent to speculate on the applicable law...
Source-derived case information.
- Citation
- [2004] KEHC 1631 (KLR)
- Parties
- Appellant: David Juma Mwashi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- ? 10 of 2004
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Dismissal of Case and Related Orders
- Outcome
- application dismissed
- Judges
- JW Gacheche
- Legal Topics
- Criminal Appeals, Procedural Irregularities, Application Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
David Juma Mwashi
Appellant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Dismissal of Case and Related Orders
Legal Issues
- 1 Whether the application was properly before the court in the absence of the relevant order and legal provisions.
- 2 Whether the trial magistrate erred in declining to dismiss the case and adjourning it severally.
Ratio Decidendi
The court found that the application was fatally defective due to the applicant's failure to specify the legal provisions under which the application was brought and the omission of the contentious order. 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 challenged. The lack of clarity and supporting documentation rendered the application premature and devoid of merit. Consequently, the court declined to grant the orders sought and dismissed the application.
Court Disposition
application dismissed
Orders
- The application is hereby dismissed.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
MISC. CRIMINAL APPLICATION NO. 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;