[2004] KEHC 2283 (KLR)
The High Court held that the Appellant's application was procedurally defective because it sought to set aside a warrant of arrest issued by the lower court, after the lower court had already refused to set aside the same and no appeal had been filed against that refusal. The application before the High Court did...
Source-derived case information.
- Citation
- [2004] KEHC 2283 (KLR)
- Parties
- Appellant: Henry Omondi Okumu; Respondent: The Co-operative Bank of Kenya Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 192 of 2002
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Application to Set Aside Warrant of Arrest
- Outcome
- application dismissed with costs to the respondent
- Judges
- ARM Visram
- Legal Topics
- Setting Aside Orders, Warrant of Arrest, Notice to Show Cause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry Omondi Okumu
Appellant
The Co-operative Bank of Kenya Ltd
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Application to Set Aside Warrant of Arrest
Legal Issues
- 1 Whether the High Court can set aside a warrant of arrest issued by the lower court when an application to set aside was already dismissed by the lower court and no appeal was filed against that dismissal.
- 2 Whether the application before the High Court was properly before it or was procedurally defective.
Ratio Decidendi
The High Court held that the Appellant's application was procedurally defective because it sought to set aside a warrant of arrest issued by the lower court, after the lower court had already refused to set aside the same and no appeal had been filed against that refusal. The application before the High Court did not relate to the subject matter of the pending appeal, which concerned a different decision by a different magistrate. The court concluded that the proper remedy for the Appellant was to appeal the lower court's refusal to set aside the warrant, not to file a fresh application in the High Court. On this basis, the application was dismissed with costs to the Respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The Appellant’s application dated 2nd March, 2004 is dismissed with costs to the Respondent.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO 192 OF 2002
HENRY OMONDI OKUMU …………………………....... APPELLANT
VERSUS
THE CO-OPERATIVE BANK OF KENYA LTD ...….. RESPONDENT
RULING
This is an application stated to be brought under Order XXI Rule 22 and Order L Rule 1 of the Civil Procedure Rules, Section 3 A of the Civil Procedure Act (Cap 21) and all enabling provisions of the law. In it, the Appellant seeks in the main the following orders:
“(d) THAT this honourable court be pleased to set aside the Senior Resident Magistrate, Mrs Meoli’s orders dated 20 th January, 2004 and lift the warrant of arrest against the Appellant …”
There was also an application seeking to have the Advocates on record for the Respondent declared “not probably (sic) on record” but this was not urged before me by the Appellant’s Advocates and I take it that the same had been abandoned.
The matters leading to the application are not in dispute. The Appellant was served with a notice to show cause on 11th November, 2003. He instructed his Advocates to appear for him. The Notice to Show Cause came up for hearing on 5th December, 2003 but was adjourned to 20th January, 2004 by consent of the Appellant’s Advocate and that of the Respondent.
In his affidavit sworn on 3rd April, 2004 Mr Nyaboga Mariara, the Appellant’s Advocate said that he forgot to inform his client of the hearing on 20th January, 2004. He also failed to diarize the matter by mistake. The Notice to Show Cause proceeded on 20th January, 2004 without the presence of the Appellant or his Advocate. On that date, the court issued a warrant of arrest against the Appellant. The Appellant applied to the lower court to have the warrant set aside but that was dismissed on 20th February, 2004. The Appellant did not appeal against the dismissal but filed the present application in this appeal which relates to a decision of a different Magistrate and on a totally different matter.
Although in his submissions in chief Mr Mariara, for the Appellant, argued that his client’s application was for stay of execution of the warrant, he changed his position in his reply and said that this was not an application for stay pending appeal but rather one to set aside the order issued by the lower court issued pursuant to the Notice to Show Cause.
Without going into unnecessary detail, I agree with Mr Kanjama, for the Respondent, that the Appellant’s application under consideration is confused. The order for warrants of arrest was issued by the lower court. The Appellant applied to have the same set aside which application was refused. His proper remedy was to appeal against the order refusing to set aside the warrants and not file a similar application in this appeal which application does not relate in any way to the appeal. On this conclusion alone, I think the Appellant’s application must fail.
I, therefore, dismiss the Appellant’s application dated 2nd March, 2004 with costs to the Respondent.
Dated and delivered at Nairobi this 27th day of April, 2004.
ALNASHIR VISRAM
JUDGE