[2004] KEHC 1004 (KLR)
The court found that the application was properly before it under section 84(1) of the Constitution, which allows a person alleging a violation of fundamental rights to apply directly to the High Court for redress. The objection that the application should have been made under section 67, requiring the trial...
Source-derived case information.
- Citation
- [2004] KEHC 1004 (KLR)
- Parties
- Appellant: Florence Kombo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 31 of 2004
- Procedural Posture
- Criminal Application / Application for Referral to the Chief Justice for Directions
- Outcome
- Objection overruled; file to be placed before the Chief Justice for directions.
- Legal Topics
- Fundamental Rights Violation, Constitutional Reference Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Florence Kombo
Appellant
Republic
Respondent
Procedural Posture
Criminal Application / Application for Referral to the Chief Justice for Directions
Legal Issues
- 1 Whether the applicant's rights under sections 72 and 77 of the Constitution have been violated.
- 2 Whether the application should be referred to the Chief Justice for directions under the correct constitutional procedure.
Ratio Decidendi
The court found that the application was properly before it under section 84(1) of the Constitution, which allows a person alleging a violation of fundamental rights to apply directly to the High Court for redress. The objection that the application should have been made under section 67, requiring the trial magistrate to frame issues, was overruled. The court held that the Deputy Registrar should arrange to place the file before the Chief Justice for directions, as provided by the relevant constitutional and procedural rules.
Court Disposition
Objection overruled; file to be placed before the Chief Justice for directions.
Orders
- The Deputy Registrar is ordered to arrange to place this file before the Honourable the Chief Justice for directions.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL APPLICATION NO. 31 OF 2004 (In the Matter of an Intended Appeal)
Between
FLORENCE KOMBO ……………………………………………….. APPELLANT
A N D
REPUBLIC …………………………………………………….…… RESPONDENT
R U L I N G
The Applicant has mentioned this matter before me and sought an order directing that this file be placed before the Honourable the Chief Justice for directions. She says she informally applied and obtained an order from the trial magistrate allowing her to make a reference to the High Court.
Mr. Monda, learned State Counsel, objects to the matter being referred to the Honourable Chief Justice. According to him the application before the trial magistrate should have been made under Section 67 of the Constitution in which the trial Magistrate should have framed the issues for determination and referred the matter to the High Court. A perusal of the application shows that the Applicant is alleging that her rights under sections 72 and 77 of the Constitution have been violated. In connection with those sections, section 84(1) of the Constitution provides:-
“84(1) Subject to subsection (6), if any person alleges that any of the provisions of sections 70 to 83 (inclusive) has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if another person alleges a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress.”
Rule 6 of the Constitution of Kenya (Protection of Fundamental Rights and Freedoms of the Individual) Practice and Procedure Rules, 2001 provides that such an application shall be heard “… by such number of Judges as the Chief Justice may, in his discretion, direct.”
As this application is not brought under Section 67 of the Constitution I overrule Mr. Monda’s objection and order that the Deputy Registrar do arrange to place this file before the Honourable the Chief Justice for directions.
DATED this 9th day of November, 2004.
D.K. Maraga
Ag. JUDGE