[2015] KEHC 4419 (KLR)
The High Court determined that the subordinate court lacked jurisdiction to enforce fundamental rights and freedoms as such jurisdiction is reserved for the High Court under Articles 23 and 165 of the Constitution. The orders issued by the subordinate court for the release of the detained vehicle were therefore made...
Source-derived case information.
- Citation
- [2015] KEHC 4419 (KLR)
- Parties
- Applicant: Kenya National Highways Authority; Respondent: Peris Aguta
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 16 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time and Supervisory Jurisdiction
- Outcome
- orders of subordinate court quashed; application in subordinate court struck out; no order as to costs
- Judges
- DAS Majanja
- Legal Topics
- Extension of Time, Supervisory Jurisdiction, Jurisdiction of Subordinate Courts, Natural Justice, Release of Detained Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya National Highways Authority
Applicant
Peris Aguta
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time and Supervisory Jurisdiction
Legal Issues
- 1 Whether the subordinate court had jurisdiction to enforce fundamental rights and freedoms under Article 23 and 165 of the Constitution.
- 2 Whether the orders for release of the detained vehicle were validly issued.
- 3 Whether the High Court should exercise supervisory jurisdiction to quash the subordinate court's orders.
Ratio Decidendi
The High Court determined that the subordinate court lacked jurisdiction to enforce fundamental rights and freedoms as such jurisdiction is reserved for the High Court under Articles 23 and 165 of the Constitution. The orders issued by the subordinate court for the release of the detained vehicle were therefore made without jurisdiction and are null and void. The High Court exercised its supervisory jurisdiction under Article 165(6) to quash the orders of the subordinate court and struck out the Notice of Motion filed therein. The decision was made without prejudice to the respondent's right to pursue any statutory remedies available.
Court Disposition
orders of subordinate court quashed; application in subordinate court struck out; no order as to costs
Orders
- Orders issued in Rongo SRMCC Misc. Application No. 44 of 2014 are quashed.
- Notice of Motion dated 17th October 2014 filed in the subordinate court is struck out.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT MIGORI
MISC. APPLICATION NO. 16 OF 2015
(FORMERLY HOMA BAY HCMISC NO. 6 OF 2015 )
BETWEEN
KENYA NATIONAL HIGHWAYS AUTHORITY …........................ APPLICANT
AND
PERIS AGUTA …..................................................................... RESPONDENT
RULING
1. The Notice of Motion in this matter seeks an extension of time to file and serve the Memorandum and Record of Appeal against the Ruling and orders of Hon. J. Mitey delivered on 14th March, 2015 in Rongo, SRMCC Misc Application No. 44 of 2014 (Peris Aguta vs. Kenya National Highways Authority).
2. The matter in the subordinate court was commenced by a Notice of Motion under Order 40 of the Civil Procedure Rules and Articles 40 (1) (3) of the Constitution seeking an order for the release of Motor vehicle registration No. KBP 849Q, Isuzu Lorry which had been detained at the Rongo Weighbridge. After hearing the matter the learned magistrate ordered release of the vehicle unconditionally on the ground that the procedure adopted for impounding the vehicle violated the rules of natural justice and Article 49 (1) of the Constitution.
3. At the hearing of the application, I indicated that the Court has no jurisdiction to determine a matter to enforce fundamental rights and freedom as Article 23 of the Constitution as read with Article 165 thereof reserved such jurisdiction to the High Court unless legislation enacted under Article 23(2) provides otherwise. Furthermore, since the vehicle had been released no purposes would be served by the intended appeal as the applicant could still prefer charges against the appellant for infraction of the Kenya Roads (Kenya National Highway Authority) Regulations, 2013.
4. Counsel for the parties agreed that the Court could therefore exercise its supervisory jurisdiction under Article 165 (6) of the Constitution to quash the decision which was obviously made without jurisdiction in order to obviate further litigation.
5. I am therefore satisfied that the orders issued in Rongo SRMCC MISC. APP. NO. 44 of 2014 were made without jurisdiction and as such they are quashed with the result that the Notice of Motion dated 17th October 2014 filed in the subordinate court is struck out. This is without prejudice to the right of the respondent to take any statutory action it shall deem necessary.
6. There shall be no order as to costs.
DATED and DELIVERED at MIGORI this 19th day of June 2015
D.S. MAJANJA
JUDGE
Mr Ochieng instructed by Ogola Okello & Company Advocates for the applicant.
Mr Ojala instructed by P. R. Ojala & Company Advocates for the respondent.