[2007] KEHC 1215 (KLR)
The court held that the application was incompetent because it was brought under a rule (Court of Appeal Rule 48) that does not apply to the High Court, and because the orders sought were civil in nature and could not be granted in a criminal application. The applicant was advised to pursue the matter in the...
Source-derived case information.
- Citation
- [2007] KEHC 1215 (KLR)
- Parties
- Applicant: Peter Wambua Muli; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Application 392 of 2007
- Procedural Posture
- Miscellaneous Criminal Application / Ruling
- Outcome
- application struck out
- Judges
- GMA Dulu
- Legal Topics
- Misuse of Criminal Process, Jurisdiction, Civil Vs Criminal Remedies
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Wambua Muli
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling
Legal Issues
- 1 Whether the High Court can grant civil remedies in a miscellaneous criminal application.
- 2 Whether rule 48 of the Court of Appeal Rules applies to applications before the High Court.
- 3 Whether the criminal process can be used to restrain the sale of property.
Ratio Decidendi
The court held that the application was incompetent because it was brought under a rule (Court of Appeal Rule 48) that does not apply to the High Court, and because the orders sought were civil in nature and could not be granted in a criminal application. The applicant was advised to pursue the matter in the appropriate civil court. Consequently, the application was struck out for being procedurally and substantively defective.
Court Disposition
application struck out
Orders
- The application is struck out as incompetent.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Criminal Appli 392 of 2007
PETER WAMBUA MULI………………………....………………..……APPLICANT
VERSUS
REPUBLIC……………………………………………………………RESPONDENT
RULING
Before me is a Chamber Summons filed by the applicant PETER WAMBUA MULI. The substantive order sought from this court in the application is that the court be pleased to order the applicant’s step brother to stop selling the applicant’s plots. The application is supported by an affidavit in which the applicant depones that he is an inmate at Kamiti Prison and that he has learnt that his step brother is selling his plots in Kitui.
At the hearing of the application, the applicant submitted that he filed this application as a criminal application because he was advised at the prison that if he did not take action, his step brother would sell all his plots.
Learned State Counsel, Mrs. Gakobo, objected to the application on the ground that the criminal process could not be used to stop sale of property.
This application has been filed as a miscellaneous criminal application. It is purported to have been brought under C.A. Rule 48. This application cannot succeed. Firstly, the application appears to have been brought under rule 48 of the Court of Appeal Rules. That rule applies to applications to the Court of Appeal that can be heard by a single Judge of Appeal. That rule is not applicable to the High Court applications.
Secondly, the application has been filed as a miscellaneous criminal application but seeks for orders which are not criminal in nature. The orders sought are for the civil court. They cannot be issued in a criminal cause. The applicant therefore is advised, if he so wishes, to file proper proceedings in the civil court for the orders sought. On my part, I have to strike out this application, as it is incompetent.
Consequently, I strike out the application.
Dated and delivered at Nairobi this 31st day of October 2007.
George Dulu
Judge
In the presence of –
Applicant in person
Mrs. Kagiri for State - absent t
Eric - court clerk