[2008] KEHC 2153 (KLR)
The court found that the applicant failed to follow the proper procedure for enforcement of constitutional rights as prescribed under Section 84 of the Constitution and the relevant rules. The court also determined that there was no substantial question of law to warrant reference to the High Court and that the...
Source-derived case information.
- Citation
- [2008] KEHC 2153 (KLR)
- Parties
- Applicant: Joseph Nyaga (Mutugi) alias Joseph Nyaga Musa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- ? 22 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- Application dismissed. Leave to appeal and stay of proceedings denied.
- Legal Topics
- Enforcement of Fundamental Rights, Supervisory Jurisdiction, Right to Personal Liberty, Procedure for Constitutional Reference
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Nyaga (Mutugi) alias Joseph Nyaga Musa
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the applicant's rights under Section 72 of the Constitution were violated during prosecution.
- 2 Whether the applicant followed the proper procedure for enforcement of constitutional rights under Section 84.
- 3 Whether leave to file an appeal and stay of proceedings should be granted.
Ratio Decidendi
The court found that the applicant failed to follow the proper procedure for enforcement of constitutional rights as prescribed under Section 84 of the Constitution and the relevant rules. The court also determined that there was no substantial question of law to warrant reference to the High Court and that the delay in filing the application was not satisfactorily explained. Consequently, the court held that the chances of appeal were non-existent and declined to grant leave to file the appeal or to stay the ongoing criminal proceedings.
Court Disposition
Application dismissed. Leave to appeal and stay of proceedings denied.
Orders
- Leave to file appeal is denied.
- Stay of proceedings in the ongoing criminal case at Kerugoya is not granted.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Misc.Crim. Appli 22 of 2008
JOSEPH NYAGA (MUTUGI)
ALIAS JOSEPH NYAGA MUSA……………………………..APPLICANT
VERSUS
REPUBLIC…………………………………………………RESPONDENT
RULING
Citizens can now enforce their rights entrenched in constitution Chapter 5 Section 70 – 83 inclusive as provided under Section 84 thereof. Rules of Practice are made by the Chief Justice. That is the constitution of Kenya (Supervisory jurisdiction and Protection of Fundamental Rights and Freedom of Individual 2006.
The court has supervisory Jurisdiction interpretative jurisdiction and enforcement jurisdiction. This is where when proceedings are before subordinate court and the court is of the opinion that a point of substantial question of law is involved that court may refer the question to the High Court or if the court is requested by a party to do so it shall refer the matter to the High Court Form for use under this Section are prescribed.
Part III is for enforcement of violations of the rights conferred under Section 70 to 83. Also here the forms in use are prescribed. The Section 72 falls under this part.
From the perusal of the proceedings here one can see that the applicant is complaining that Section 72 of the constitution was violated and continues to be violated in relation to him being prosecuted.
In my view such action as is proposed has no chances of succeeding. Now coming to the issue of delay, there is a certificate of delay issued by court which shows it was ready for collection on 22/4/2008 and this application was filed on 2/5/2008. Proceedings collected on 7/3/2008, there is delay of 2 months. In view of the fact that the proper procedure was not followed as stated above, I find the chances of appeal are no existent. Therefore I am inclined to reject the granting of leave to file such appeal and therefore the issue of stay of proceeding in the criminal case now on going in Kerugoya is not granted.
It is so ordered.
Dated this 12th May, 2008.
J. N. KHAMINWA
JUDGE