[2013] KEHC 4667 (KLR)
The High Court declined to grant the orders sought by the applicants on the basis that it is an abuse of court process to file duplicative applications before different courts without awaiting the outcome of the initial application. The applicants should have awaited the ruling of the Chief Magistrate's Court on...
Source-derived case information.
- Citation
- [2013] KEHC 4667 (KLR)
- Parties
- Applicant: Josphat Murithi Mworia; Applicant: Fernard Mwende Murmia; Applicant: Alex Gikundi Murumia; Applicant: Joses Kimathi Murumia; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 12 of 2013
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Notice of Motion Seeking Review of Bond Terms and Restraining Orders
- Outcome
- Application dismissed for being an abuse of court process and for incompetence of the restraining order sought.
- Legal Topics
- Bond Terms, Judicial Review, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josphat Murithi Mworia
Applicant
Fernard Mwende Murmia
Applicant
Alex Gikundi Murumia
Applicant
Joses Kimathi Murumia
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Notice of Motion Seeking Review of Bond Terms and Restraining Orders
Legal Issues
- 1 Whether the High Court should restrain the Chief Magistrate from cancelling the 1st applicant's bond pending hearing of this application.
- 2 Whether the High Court should review and reduce the bond terms set by the Chief Magistrate as unaffordable.
- 3 Whether it is proper to file duplicative applications in different courts before a decision is rendered in the lower court.
Ratio Decidendi
The High Court declined to grant the orders sought by the applicants on the basis that it is an abuse of court process to file duplicative applications before different courts without awaiting the outcome of the initial application. The applicants should have awaited the ruling of the Chief Magistrate's Court on their application for review of bond terms before approaching the High Court. Furthermore, the High Court held that it lacks the power to restrain another court from exercising its judicial functions, rendering the prayer for a restraining order incompetent. The applicants were directed to return to the Chief Magistrate's Court for a ruling, after which they may appeal if...
Court Disposition
Application dismissed for being an abuse of court process and for incompetence of the restraining order sought.
Orders
- Applicants to await the ruling of the Chief Magistrate's Court, Maua, on their application.
- Applicants may appeal to the High Court if dissatisfied with the ruling of the Chief Magistrate's Court.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
High Court at Meru
Criminal Miscellaneous Application 12 of 2013 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif]
JOSPHAT MURITHI MWORIA……………………………… 1st APPLICANT
FERNARD MWENDE MURMIA…………………….………..2ND APPLICANT
ALEX GIKUNDI MURUMIA………………………………..…3RD APPLICANT
JOSES KIMATHI MURUMIA…………………………….……4TH APPLICANT
VERSUS
REPUBLIC………………………………………………………..RESPONDENT
RULING
The application is a Notice of Motion brought under Articles 40(1)(h), 50(2)(A), 159(1), (2) and 258(1) of the Constitution of Kenya and under S. 124, 125, 126, 362 and 364 of the Criminal Procedure Code.It is seeking the following orders:
1. That the honourable court be pleased to certify this application as extremely urgent and hear it ex-parte in the first instance.
2. That the honourable court be pleased to restrain the Chief Magistrate Maua Law Courts Mr. J. K. Kingori from cancelling the 1st applicants bond in Maua CMCR.C. NO. 3558 of 2012 pending the hearing of this application.
3. That the honourable court be pleased to review the Maua Chief Magistrate’s order on bond terms for the applicants made on 5/12/2012 and reduce the same to affordable level.
4. That the honourable court be pleased to issue any further and/or better orders as may meet the ends of justice herein.
The application is supported by the following grounds:-
i.The Maua Chief Magistrate has given very stiff and unaffordable bond terms to the applicants.
ii.The maua Chief Magistrate in Maua Cr. C. No. 3558 of 2012 has indicated he will on 1/3/2012 withdraw the 1st applicants bond.
iii.The applicants herein are not a flight risk.
I noted when I retired to prepare a ruling on the applications by the four Applicants that a similar application was made before the learned trial magistrate or Chief Magistrate. It is indicated that a date was given for the ruling on the application for 1st March 2013. Instead of waiting for the outcome the accused persons have run to this court asking for restraining order against the learned Chief Magistrate of Maua Law Courts.I decline to rule on the application that was argued before me on 6th March, 2012 for two reasons.
One, it is an abuse of court process to make duplicity of applications before different counts without waiting for decision from each application made in progression as the law prescribes. The Applicants should have waited for a ruling from the Chief Magistrates Court on their Application before coming to this court. Having failed to wait for the outcome of their application before the Chief Magistrates court the Applicants have not followed due process.
Two, no court has power to restrain another court from exercising their Judicial power or performing their judicial duty. The prayer framed in Order 2 of the application is incompetent as framed.
The Applicants should go back to the Chief Magistrate’s Court Maua for a ruling on their matter after which they may appeal against the ruling to this court if need be.
Those are my orders.
DATED SIGNED AND DELIVERED THIS 8TH DAY OF MARCH, 2013
LESIIT, J
JUDGE.
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