[2014] KEHC 4673 (KLR)
The court held that the applicant's grievance regarding the magistrate's reliance on an allegedly false affidavit and the finding of compliance with demolition orders involves contested factual matters. Such issues are more appropriately addressed through the appellate process rather than by way of revision. The...
Source-derived case information.
- Citation
- [2014] KEHC 4673 (KLR)
- Parties
- Applicant: Jubilee Steel & Hardware; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 25 of 2014
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- Application for revision dismissed; applicant advised to pursue appeal.
- Judges
- GO Shikwe
- Legal Topics
- Revision Jurisdiction, Compliance With Court Orders, False Affidavit Allegations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jubilee Steel & Hardware
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the magistrate's finding of compliance with demolition orders was based on a false affidavit.
- 2 Whether the matter is suitable for revision or should be addressed by way of appeal.
Ratio Decidendi
The court held that the applicant's grievance regarding the magistrate's reliance on an allegedly false affidavit and the finding of compliance with demolition orders involves contested factual matters. Such issues are more appropriately addressed through the appellate process rather than by way of revision. The court found no basis to exercise its revisionary jurisdiction and directed that the applicant should pursue an appeal if dissatisfied with the magistrate's ruling.
Court Disposition
Application for revision dismissed; applicant advised to pursue appeal.
Orders
- The application for revision is dismissed.
- The applicant may pursue the matter by way of appeal.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL REVISION NO. 25 OF 2014
JUBILEE STEEL & HARDWARE …......….......................................….. APPLICANT
VERSUS
REPUBLIC ……….…….......................................................…RESPONDENT
RULING
A Judgment was delivered by Honourable Ekhubi Resident Magistrate Criminal case Number 3112 of 2011 on 16th January, 2013. Orders were made directing the Accused to demolish a portion of her structure encroaching on a road reserve leading to plot number 2449/VI/MN situated at Changamwe. The demolition was to be done under the supervision of a Registered Surveyor.
The matter later went before Honourable Gachie Resident Magistrate for compliance proceedings. In his ruling dated 16th January, 2013 he found that there was compliance with orders of the Court and closed the case.
It is the applicants contention that the magistrate relied on a false affidavit sworn by the Mombasa County control officer on 5th March, 2014.
A perusal of the typed proceedings before the Court. The magistrate did rely on a letter dated January, 2013 addressed to the Court to the effect that the Accused person had removed the structure portion blocking entrance to a neighbouring plot. He found that there was corroboration by the provincial surveyor. He did not agree with the surveyors report filed by the prosecution and he gave his reasons.
Presently, the author of the compliance report has filed an affidavit dated the 5th day of March, in which he alleges to have been misled while compiling the compliance report.
I find that this is a matter that should be dealt with by way of an appeal rather than a revision.
Ruling read and delivered dated this 29th day of May, 2014.
…...............
M. MUYA
JUDGE
29TH MAY, 2014
In the presence of:-
Mr. were for the applicant
Kiprop for the State