[2021] KEHC 1702 (KLR)
The court found that the applicant's motion was a blanket application lacking specificity regarding the orders to be reviewed or revised in each of the cited criminal cases. The applicant failed to demonstrate which particular orders required revision or the grounds for such revision. The court held that it is not...
Source-derived case information.
- Citation
- [2021] KEHC 1702 (KLR)
- Parties
- Applicant: Fred Ndigwa Nunda; Respondent: Director of Public Prosecutions; Respondent: Director of Criminal Investigations; Respondent: Inspector of General of Police
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 5 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Review/revision and Bond Terms
- Outcome
- application dismissed
- Judges
- REA Ougo
- Legal Topics
- Revision of Criminal Proceedings, Bond and Bail Terms, Warrants of Arrest, Judicial Review of Lower Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fred Ndigwa Nunda
Applicant
Director of Public Prosecutions
Respondent
Director of Criminal Investigations
Respondent
Inspector of General of Police
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Review/revision and Bond Terms
Legal Issues
- 1 Whether the High Court should review or revise the orders in the specified criminal cases against the applicant.
- 2 Whether the applicant should be released on previous bond terms or on terms that are just to enable him to receive medical attention.
- 3 Whether the application is properly before the High Court or should have been made before the respective trial courts.
Ratio Decidendi
The court found that the applicant's motion was a blanket application lacking specificity regarding the orders to be reviewed or revised in each of the cited criminal cases. The applicant failed to demonstrate which particular orders required revision or the grounds for such revision. The court held that it is not its duty to peruse each lower court file to determine what transpired in each case; rather, the applicant should have made targeted applications before the respective trial courts. The court further noted that while the applicant cited various constitutional provisions, he failed to provide substantive content or evidence to support their application to his circumstances....
Court Disposition
application dismissed
Orders
- The application is dismissed.
- The lower court files shall be returned to the specific courts for hearing and determination.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
MISC CRIMINAL APPLICATION NO. 5 OF 2021
FRED NDIGWA NUNDA.............................................................................APPLICANT
VERSUS
DIRECTOR OF PUBLIC PROSECUTIONS..................................1ST RESPONDENT
DIRECTOR OF CRIMINAL INVESTIGATIONS........................2ND RESPONDENT
INSPECTOR OF GENERAL OF POLICE....................................3RD RESPONDENT
RULING
1. Fred Ndigwa Nunda hereinafter referred to as the applicant seeks in his motion dated 30th September 2021 the following orders;
i. That the court review and or revise criminal cases nos.
Kisii cm’s criminal case no. 1693 of 2019
Kisii cm’s criminal case no. 2829 of 2019
Kisii cm’s criminal case no. 1165 of 2020
Kisii cm’s criminal case no. 1161 of 2020
Kisii cm’s criminal case no. 1144 of 2020
ii. That the court be pleased to order that the accused/ applicant be released on previous bond terms and or terms that are just in order to receive medical attention in a hospital facility of his choice
iii. That costs be in the cause.
2. The application is grounded on the supporting affidavit of the applicant and grounds stated on the face of the application. He depones in his affidavit that he made an application and the court made an order that he be accorded medical treatment and where necessary he be taken to for specialist treatment outside of prison. That the order was served on Kisii Prisons who immediately transferred him to Kodiaga Prisons ostensibly for treatment. That at Kodiaga prisons he was not afforded any treatment until Doctor Odhiambo recommended the surgery be done at his home county. That he seeks to be released on bond in all matters in which he is charged on the bond terms which he was previously given. That he undertakes to attend court at all times. That the manner in which he was shot is completely inhumane.
3. At the hearing of the applicant Mr.Kerosi for the applicant reiterated what is deponed in the applicant adding that the applicant has several cases in court and that when the police went to arrest him they shot and maimed him seriously. That the applicant is not a convict and should benefit from the provisions of Article 49 of the Constitution. That he is not a flight risk, as he has always come to court. That they asked the court to lift the warrant of arrest but he has met hurdles in the various courts. That the applicant might die whilst in prison and that his life is in danger. That the court should inquire why the prisons officials refused to obey the court order.
4. The application was opposed. Mr Kaino in response submitted the applicant is facing different charges in 5 different courts here in Kisii. That just before the application the applicant was arrested by DCI officers. That there are warrants of arrests issued in all the files. The applicant broke the bond terms and warrants were issued. That the application is not made in good faith. That the issue of warrants should be addressed in the various courts and if he is aggrieved he shall have recourse to the High Court. That in his application he has not stated if the matter is an appeal or a review. That the applicant’s ill health is not related to the issue of his bond terms. The prisons have medical facilities. That making blanket applications is not proper and that the application should be dismissed as it is an abuse of the court process.
5. Mr. Kerosi in response argued that the prosecution have no affidavit in response and that the applicant has an injured leg that is rotting. That they have gone severally to lift the warrants and that the files are available.
6. The application by the applicant is for review and or revise criminal cases indicated at paragraphs b of the motion. The applicant apart from citing the cases has not demonstrated the orders to be reviewed or revised in each case. It is not the duty of this court to peruse each case to find out what happened in each case. The applicant application is a blanket application. Articles 19, 20,22,23,28. 29 and 49 have been cited with no content to support them in the applicant’s affidavit. I agree with the prosecution that the applicant should have made the relevant applications before each court before moving to the High Court. Section 364 empowers the High Court to make orders of revision. The order or orders to be revised must be clearly stated. The applicant appears to be seeking an order to be taken for treatment or be released for treatment but the order that caused his warrant has not been specifically challenged. In my view the application lacks merit. The lower court files shall be returned to the specific courts for hearing and determination. The application is dismissed.
Dated, Signed and Delivered at KISII on the 17th day of November 2021.
R. E. OUGO
JUDGE
In the presence of:
Applicant Absent
Mr. Kerosi For the Applicant
Mr. Kaino State Counsel ODPP
Ms. Rael Court Assistant