[2020] KEHC 953 (KLR)
The court found that the applicant was charged and prosecuted in violation of interim conservatory orders issued in Petition No. 186 of 2018, which had stayed the implementation and enforcement of the County Government notice. The respondent admitted to preferring charges while the stay orders were in force. As a...
Source-derived case information.
- Citation
- [2020] KEHC 953 (KLR)
- Parties
- Applicant: James Thuo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 35 of 2020
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application to Quash Charges and Refund Bail
- Outcome
- application allowed; charges quashed; bail refunded
- Legal Topics
- Quashing of Charges, Contempt of Court Orders, Interim Conservatory Orders, Prosecutorial Authority
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Thuo
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application to Quash Charges and Refund Bail
Legal Issues
- 1 Whether the criminal charges against the applicant were instituted in violation of existing court orders staying the implementation of the County Government notice.
- 2 Whether the proceedings and charges against the applicant are void ab initio due to contempt of court.
- 3 Whether the applicant is entitled to a refund of cash bail.
Ratio Decidendi
The court found that the applicant was charged and prosecuted in violation of interim conservatory orders issued in Petition No. 186 of 2018, which had stayed the implementation and enforcement of the County Government notice. The respondent admitted to preferring charges while the stay orders were in force. As a result, the court held that the charges and proceedings against the applicant were void ab initio and must be quashed. The court further ordered that the applicant's cash bail be refunded, noting that the respondent would be at liberty to reinstitute charges should the constitutional petition be determined in their favour.
Court Disposition
application allowed; charges quashed; bail refunded
Orders
- The charges and proceedings against the applicant are quashed and nullified as void ab initio.
- The cash bail deposited by the applicant shall be refunded forthwith.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISCELLANEOUS CRIMINAL APPLICATION 35 OF 2020
JAMES THUO.......................................................APPLICANT
VERSUS
REPUBLIC.........................................................RESPONDENT
R U L I N G
1. James Thuo the accused in Mombasa County CR. Case No. 162 of 2020 came to this court under Certificate of Urgency seeking pursuant to Article 165(7) of the Constitution of Kenya 2010 seeking that the court calls for record of proceedings in Mombasa County CR. Case No. 162 of 2020 and make appropriate orders to the extent of quashing and nullifying the charges and proceedings as void also initio. The Applicant also sought that the court be pleased to order that his cash bail be returned.
2. The Application was premised on the grounds that the charges and proceedings emanated from another by the County Government Department of Transport and Infrastructure directed to Pearl Beach Apartments owned by Central Bank of Kenya Pension Scheme to the Central Bank Pension ordering them to paint the building white and Egyptian blue.
3. The applicant argued that the decision to charge him was in contempt and violation of orders staying implementations of the notice by the County Government Dept. of Transport and Infrastructure issued by Ogolla J in High Court Mombasa No. 186 of 2018 on 12/7/2018 and consumed on 23rd July 2020.
4. The application was also supported by the affidavit of applicant sworn on 11th September 2020 and a further affidavit sworn on 4th day of November 2020 annexing the ruling in Petition No. 186 of 2018 granting conservatory orders staying the implementation and enforcement of the decision of the County Government contained in the impugned notice pending the disposal of the Constitutional Petition No. 186 of 2018 or until such other or further orders of the court.
5. Applicant on the further supporting affidavit averred that by the time of this evident and prosecution on 21st February 2020 the notice had already been stayed and prosecution was unflagrant contempt of the court’s order issued in High Court Petition No. 186 of 2018.
6. In reply to the Application Kennedy Oruko in Replying Affidavit sworn on 10th November 2020 averred that by the time that applicant was charged Mombasa County prosecutions still had delegated authority to conduct prosecutions. That on 14th August 2020 they received a letter from the County Attorney of Mombasa informing them of the ruling issued on Petition No. 186 of 2018 and directing them to stay all pending prosecutions under Section 126 (c) as read with Section 164 of the Public Health Act and also not to initiate any future prosecutions pending the determination of the constitutional petition (Annexture K01).
7. He also went further to say that DPP revoked appointment of Mombasa County Prosecutions vide Kenya Gazette Notice No. Vol CXXII-159-K02 and proceedings taken over by Office of Director of Public Prosecutions on 1/10/2020. That the criminal charge against Applicant was stayed pending the hearing and determination of the petition No. 186 of 2018 In consideration that the Respondent has admitted having preferred charges against the applicant when there were interim orders.
8. In Petition No. 186 of 2018 staying the implementation of Notice issued by 1st Respondent and which stay orders were confirmed by a ruling delivered on 23rd July 2020 this court finds that the charging of the applicant was void also initio and therefore the charge against him is not only stayed but withdrawn under Section 85(1) Criminal Procedure Code.
9. In event that the constitutional court in Petition No. 186 of 2018 allows the implementation of the Notice by the County Government then the 2nd Respondent will be at liberty to bring back to court the same charges against the applicant. For now, the cash bail deposited by the applicant should be refunded back to him forthwith.
10. Order accordingly.
Dated, signed and delivered online by MS TEAMS, this 10th day of December 2020
HON. LADY JUSTICE A. ONG’INJO
JUDGE