[2023] KEHC 24907 (KLR)
The court found that the petitioner was not accorded a fair hearing in respect of the Notice To Show Cause, as he was not provided with the necessary virtual link to attend the proceedings, despite all prior hearings being conducted virtually. The failure to ensure the petitioner could participate violated his...
Source-derived case information.
- Citation
- [2023] KEHC 24907 (KLR)
- Parties
- Applicant: William Ochanda Onguru; Respondent: Director Of Public Prosecutions; Respondent: Inspector General Of Police; Interested Party: Elijah Amollo Oloo; Interested Party: Charles Asikowa Okolo
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Petition E003 of 2022
- Procedural Posture
- Constitutional Petition / Ruling on Notice of Motion to Set Aside Proceedings and Warrant of Arrest
- Outcome
- Application allowed; proceedings and warrant of arrest set aside.
- Judges
- AC Mrima
- Legal Topics
- Right to Fair Hearing, Notice to Show Cause, Virtual Hearings, Due Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
William Ochanda Onguru
Applicant
Director Of Public Prosecutions
Respondent
Inspector General Of Police
Respondent
Elijah Amollo Oloo
Interested Party
Charles Asikowa Okolo
Interested Party
Procedural Posture
Constitutional Petition / Ruling on Notice of Motion to Set Aside Proceedings and Warrant of Arrest
Legal Issues
- 1 Whether the petitioner was accorded a fair hearing in respect of the Notice To Show Cause.
- 2 Whether the proceedings and warrant of arrest issued by the Deputy Registrar should be set aside for breach of fair hearing rights.
Ratio Decidendi
The court found that the petitioner was not accorded a fair hearing in respect of the Notice To Show Cause, as he was not provided with the necessary virtual link to attend the proceedings, despite all prior hearings being conducted virtually. The failure to ensure the petitioner could participate violated his constitutional right to a fair hearing under Article 50(1) and Article 25(c) of the Constitution. As a result, the proceedings conducted by the Deputy Registrar on 01/11/2023 and the warrant of arrest issued against the petitioner were set aside. The court emphasized that the right to a fair hearing is fundamental and cannot be limited, and that procedural fairness must be strictly...
Court Disposition
Application allowed; proceedings and warrant of arrest set aside.
Orders
- The proceedings undertaken by the Hon. Deputy Registrar on 01/11/2023 are set aside.
- The Warrant of Arrest issued against the petitioner on 01/11/2023 is set aside and vacated.
Full Case Text
Judgment text and source record
31 paragraphs
Onguru v Director of Public Prosecutions & another; Oloo & another (Interested Parties) (Petition E003 of 2022) [2023] KEHC 24907 (KLR) (3 November 2023) (Ruling)
Neutral citation: [2023] KEHC 24907 (KLR)
Republic of Kenya
In the High Court at Kitale
Petition E003 of 2022
AC Mrima, J
November 3, 2023
Between
William Ochanda Onguru
Petitioner
and
The Director Of Public Prosecutions
1st Respondent
The Inspector General Of Police
2nd Respondent
and
Elijah Amollo Oloo
Interested Party
Charles Asikowa Okolo
Interested Party
Ruling
1. This Court has cautiously considered the Notice of Motion dated 02/11/2023 alongside the submissions by counsel. Enquiries on the authenticity of the annexures in the Petitioners’ Supporting Affidavit has been made. The copies of the documents annexed are indeed genuine and true copies.
2. The position that previous proceedings before the Taxing Officer were conducted virtually is mutually admitted. However, there is no evidence of any notice of departure.
3. The right to a fair hearing is a cardinal constitutional right. It is provided for in Article 50(1) as under:-“Every person has the right to have any dispute that can beresolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body”.
4. The right to fair hearing is further ring fenced under Article 25(c) of the Constitution as one of the rights that cannot be limited in any manner whatsoever.
5. The instant application centers on whether the petitioner was accorded a fair hearing in the hearing of the Notice To Show Cause.
6. The totality of the events as deposed and submitted on in this matter complied with the state of the record, affirms the position that, in all fairness, the petitioner was not accorded a fair hearing in respect of the Notice To Show Cause that had been taken against him.
7. The Notice To Show Cause had the potential of curtailing the plaintiff’s freedom and liberty. As such, care ought to have been take not ensure that the plaintiff was awarded an opportunity to be heard. Surprisingly, even after the Court Administrator engaging counsel for the petitioner and promising to send out the court’s link that did not happen. how else would the petitioner been expected to attend the proceedings which he had all along attended virtually in the absence of the link before the Hon. Deputy Registrar?
8. Without the need to consider the rest of the issues raised, which are likely to be subject of consideration herein, the Court opts to end this matter at this point in time more so since no party will be prejudiced or at all.
9. As such, the following final orders do here by issue:-a.The proceedings undertaken by the Hon. Deputy Registrar in this matter on 01/11/2023 are hereby set aside.b.The Warrant of Arrest issued against the petitioner herein by the Hon. Deputy Registrar on 01/11/2023 is here by set aside and vacated.c.The matter shall be fixed before the Hon. Deputy Registrar for directions on 15/11/2023. d.The proceedings before the Hon. Deputy Registrar shall be virtual unless preceded by a duly served notice.e.There shall be no order as to costs.Orders accordingly.
DATED, DELIVERED AND SIGNED AT KITALE THIS 3RD DAY OF NOVEMBER, 2023. HON. JUSTICE A.C. MRIMAJUDGE