[2011] KEHC 614 (KLR)
The court held that, pursuant to Section 193A of the Criminal Procedure Code, the existence of parallel criminal and civil proceedings on the same subject matter does not justify a stay of either. The law expressly provides that the pendency of civil proceedings is not a ground for staying, prohibiting, or delaying...
Source-derived case information.
- Citation
- [2011] KEHC 614 (KLR)
- Parties
- Applicant: Khadija Mohamed; Respondent: Quinter Ayoo Amullo
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 834 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Review and Setting Aside Ex Parte Orders
- Outcome
- Application for review allowed; ex-parte orders set aside.
- Legal Topics
- Review of Court Orders, Ex Parte Orders, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Khadija Mohamed
Applicant
Quinter Ayoo Amullo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Review and Setting Aside Ex Parte Orders
Legal Issues
- 1 Whether the ex-parte stay of proceedings in CMCC 1589 of 2011 should be set aside.
- 2 Whether the existence of parallel civil and criminal proceedings on the same subject matter justifies a stay of proceedings.
Ratio Decidendi
The court held that, pursuant to Section 193A of the Criminal Procedure Code, the existence of parallel criminal and civil proceedings on the same subject matter does not justify a stay of either. The law expressly provides that the pendency of civil proceedings is not a ground for staying, prohibiting, or delaying criminal proceedings, and vice versa. Therefore, the ex-parte order staying the civil proceedings was contrary to this statutory provision. The court allowed the application for review and set aside the ex-parte orders, enabling both civil and criminal matters to proceed concurrently.
Court Disposition
Application for review allowed; ex-parte orders set aside.
Orders
- The ex-parte orders made on 26th September 2011 are set aside.
- The application for review is allowed.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL MISCELLANEOUS APPLICATION NO. 834 OF 2011
KHADIJA MOHAMED …………………………PLAINTIFF/ APPLICANT
=VERSUS=
QUINTER AYOO AMULLO …………... DEFENDANT/RESPONDENT
RULING
By this Notice of Motion application dated 18th October 2011 the Plaintiff/Applicant prays inter alia that:
“(2) The court do review its order made on 26. 09. 11
(3)…………………………………………………………………
(4)That the court do vacate its order in respect of Civil Suit 1589/2011 KHADIJA MOHAMED RIDHWAN –VS- QUINTER AYOO AMULLO
(5)That any other order be made as the court deem fit”
MR. KIRUI Advocate acted for the Applicant. The application was opposed with MR. OWINO Advocate appearing for the Defendant/Respondent.
On 26th September 2011 the Respondents approached this court by way of a Certificate of Urgency and obtained ex-parte orders staying the proceedings in CMCC 1589 of 2011. It is this ex-parte stay of the proceedings in the lower court that the Applicant now seeks to have set aside. It is clear that aside from the civil matter quoted above criminal proceedings have also been commenced against the Respondent involving the same subject matter. I have carefully considered the submissions made by both counsel in this matter. I do take note of the provisions of S. 193A of the Criminal Procedure Code which provides:
“193A. Not withstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings”
The effect of this provision is that civil and criminal proceedings involving the same subject matter can proceed simultaneously. One will not take priority over the other. As such I do allow this present application for review and I hereby set aside the ex-parte orders made on 26th September 2011.
Dated and Delivered in Mombasa this 16th day of December 2011.
M. ODERO
JUDGE
In the presence of:
Mr. Wameyo holding brief for Mr. Owino
No appearance by Mr. Kirui