[2023] KEHC 18378 (KLR)
The court held that a certificate of urgency, not anchored on a substantive application such as a notice of motion, is procedurally defective. The law requires that applications of this nature must be brought before the court by way of a notice of motion. Since the applicant failed to comply with this mandatory...
Source-derived case information.
- Citation
- [2023] KEHC 18378 (KLR)
- Parties
- Applicant: David Wangai Ndung’u; Respondent: Inspector General of Police; Respondent: Director of Criminal Investigations; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Case E207 of 2023
- Procedural Posture
- Miscellaneous Application / Ruling on Certificate of Urgency
- Outcome
- application struck out
- Judges
- DR Kavedza
- Legal Topics
- Anticipatory Bail, Procedural Defects, Notice of Motion Requirement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Wangai Ndung’u
Applicant
Inspector General of Police
Respondent
Director of Criminal Investigations
Respondent
Director of Public Prosecution
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Certificate of Urgency
Legal Issues
- 1 Whether a certificate of urgency seeking anticipatory bail can be granted without a substantive application before the court.
- 2 Whether failure to file a notice of motion renders the application fatally defective.
Ratio Decidendi
The court held that a certificate of urgency, not anchored on a substantive application such as a notice of motion, is procedurally defective. The law requires that applications of this nature must be brought before the court by way of a notice of motion. Since the applicant failed to comply with this mandatory procedural requirement, the court was unable to grant the orders sought and struck out the application as fatally defective.
Court Disposition
application struck out
Orders
- The certificate of urgency dated June 5, 2023, is struck out for being fatally defective.
Full Case Text
Judgment text and source record
22 paragraphs
Ndung’u v Inspector General of Police & 2 others (Miscellaneous Case E207 of 2023) [2023] KEHC 18378 (KLR) (Crim) (13 June 2023) (Ruling)
Neutral citation: [2023] KEHC 18378 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Criminal
Miscellaneous Case E207 of 2023
DR Kavedza, J
June 13, 2023
Between
David Wangai Ndung’u
Applicant
and
Inspector General of Police
1st Respondent
Director of Criminal Investigations
2nd Respondent
Director of Public Prosecution
3rd Respondent
Ruling
1. The applicant David Wangai Ndung’u has filed a Certificate of Urgency dated June 5, 2023 supported by an affidavit of even date seeking an order of anticipatory bail restraining the respondents, their servants, agents, junior officers and/or anybody from arresting him.
2. I however note that the certificate of urgency is not anchored on any application. It is trite law that an application of this nature must be instituted through a notice of motion. The application before me is thus fatally defective and I am therefore unable to grant the orders sought vide the certificate of urgency and proceed to strike out the same.It is so ordered.
RULING DELIVERED VIRTUALLY ON 13TH DAY OF JUNE, 2023D. KAVEDZAJUDGE