[2015] KEHC 3552 (KLR)
The court found that all issues raised in the present application had already been canvassed and determined in prior proceedings, including the applicant's health and flight risk. No new circumstances were presented to justify a review or reconsideration of the previous ruling. Furthermore, the application was filed...
Source-derived case information.
- Citation
- [2015] KEHC 3552 (KLR)
- Parties
- Applicant: Feisal Mohamed Ali alias Feisal Shabal; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 39 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Bond and Appeal Against Denial of Bond
- Outcome
- application dismissed
- Judges
- GO Shikwe
- Legal Topics
- Bail and Bond, Appeals and Revisions, Flight Risk, Delay in Filing, Review of Rulings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Feisal Mohamed Ali alias Feisal Shabal
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Bond and Appeal Against Denial of Bond
Legal Issues
- 1 Whether the application for bond raises new circumstances not previously determined.
- 2 Whether the applicant is entitled to a review or appeal of the previous ruling denying bond.
- 3 Whether the delay in filing the appeal is excusable.
Ratio Decidendi
The court found that all issues raised in the present application had already been canvassed and determined in prior proceedings, including the applicant's health and flight risk. No new circumstances were presented to justify a review or reconsideration of the previous ruling. Furthermore, the application was filed after an inordinate and unexplained delay of more than half a year, with no application for extension of time. The court held that it would be improper to revisit the same issues without new facts and that doing so would amount to sitting on appeal or review of its own decision without proper grounds. Consequently, the application was found to be without merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application is dismissed for want of merit.
- Certified copies of the ruling to be furnished to both parties.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISC. APPLICATION NO. 39 OF 2015
FEISAL MOHAMED ALI alias FEISAL SHABAL.....APPLICANT
VERSUS
REPUBLIC........................................................RESPONDENT
RULING
This undated Notice of Motion application is premised under article 22 as read with article 165(3)(d) of the Constitution. It is deemed to be an appeal against the ruling of Honourable Kituku – Principal Magistrate delivered on 9th January, 2015.
In the said ruling he declined to grant the applicant bond.
He did not proceed with the appeal but instead brought a fresh application in the same trial Court and the application for bond was allowed. This prompted the state to file a revision against the ruling admitting the Accused to bond.
In that revision application the issue as to whether the Accused was a flight risk was canvassed and was fully determined.
The issue of the Accused health was also raised and the Court made a determination on it. All the issues raised in this application were argued before me and I made a determination on them. To revisit the same issues again would be tantamount to (1) presiding on a review of my ruling when the Court has not been invited to find that there are new circumstances obtaining that were not available at the time to the applicant and that failure to discover those facts was not because or due to his fault and this would be improper.
(2) To revisit the same issues afresh would be tantamount to sitting on appeal on my ruling and any determination contrary to my earlier finding would be embarrassing.
This appeal was filed on 20th January, 2015. There is no application for extension of time. It is brought more than a half a year later ago. That duration of delay is in ordinate and un explainable.
The application has no merit and its dismissed.
Ruling delivered dated and signed this 9th day of July, 2015.
…..................
M. MUYA
JUDGE
9TH JULY, 2015.
In the presence of:-
Counsel for the prosecutiio Mr. Muteti
Counsel for defence Nabwana
Court Assistant Mr. Musundi
M. MUYA – JUDGE
Mr. Nabwana:
In view of the Courts ruling I would urge that a direction be given that hearing date be given for the hearing.
Mr. Muteti:
Thats a matter for the discretion of the lower Court.
Court:
Case has a hearing for two days starting from today at the lower Court. Same to proceed as scheduled. Certified copies of the ruling to be furnished to both parties.
…..................
M. MUYA
JUDGE
9TH JULY, 2015