[2000] KEHC 259 (KLR)
The court found that the applicant's inability to comply with the abatement order was directly caused by the tenants' refusal to vacate the premises, despite being served with notices. The Chief Magistrate erred by imposing ongoing daily fines on the applicant without considering the tenants' role and their absence...
Source-derived case information.
- Citation
- [2000] KEHC 259 (KLR)
- Parties
- Applicant: Nemuel Assati Nyangoka; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 2 of ??
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- sentence varied; daily fine discharged; refund ordered; applicant to be heard in pending application
- Legal Topics
- Public Health Offences, Sentencing Revision, Court Orders Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nemuel Assati Nyangoka
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the applicant's continued liability for daily fines was justifiable given the tenants' refusal to vacate the premises.
- 2 Whether the Chief Magistrate erred by imposing ongoing fines without considering the tenants' role and absence from the proceedings.
Ratio Decidendi
The court found that the applicant's inability to comply with the abatement order was directly caused by the tenants' refusal to vacate the premises, despite being served with notices. The Chief Magistrate erred by imposing ongoing daily fines on the applicant without considering the tenants' role and their absence from the proceedings. The court held that it was unjust to continue penalizing the applicant for circumstances beyond his control and ordered the discharge of the daily fine sentence, with a refund of all amounts paid under that limb of the order. The applicant was also granted the right to be heard in the pending application by the tenants.
Court Disposition
sentence varied; daily fine discharged; refund ordered; applicant to be heard in pending application
Orders
- The sentence of KShs.80 per day is discharged.
- All amounts paid by the applicant in compliance with the daily fine order are to be refunded to the applicant.
Full Case Text
Judgment text and source record
5 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASACRIMINAL REVISION CASE NO.2 OF 2000NEMUEL ASSATI NYANGOKA …………………………………………… APPLICANT- versus -REPUBLIC …………………………………………………………………. RESPONDENTR U L I N G This matter has come before me under Revisionary Jurisdiction contained in Section 364 of the Criminal Procedure Code. The complainant Nemuel Assati Nyangoka was charged on 28/10/99 before the Chief Magistrate with the offence of failing to comply with a notice issued under Section 119 of the Public Health Act contrary to Section 115 as read together with Section 12(213) of the said Act.
He pleaded guilty and was fined KShs.80/- in default 1 month imprisonment. He was also to pay KShs.80/- per day until he abated the nuisance. The chief Magistrate also gave the tenants 30 days to move out of the premises to enable the Council to demolish them, but the tenants were not party to the case and were not in Court. They were served with notices but now they have refused to move out but the Applicant still pay the daily charges.
After studying the matter it would appear that the action of the tenants has caused inability of the Applicant to comply with the order to abate the nuisance. It was also an omission on the Court’s part to have ignored the state the tenants had in the matter. I, therefore, propose to alter the sentence by the Chief Magistrate to read that sentence of KShs.80 per day be discharged and all the amount paid by the applicant in compliance with that limb of the order be refunded to the Accused/Applicant.
Then I order further that the Accused be heard in the application by the tenants now pending before this court.Dated this 21st Day of September, 2000. A.I. HAYANGA JUDGE Read in open Court to:- ………………………………………… for Applicant. State Counsel Ms. Kwena for Respondent. By:- J. KHAMINWA COMMISSIONER OF ASSIZE