[2002] KEHC 802 (KLR)
The court found that the applicant had complied with the procedural requirements for seeking leave to apply for judicial review under Order 53 of the Civil Procedure Rules. The applicant demonstrated sufficient grounds for the grant of leave, particularly in light of the Attorney-General's admission that there was...
Source-derived case information.
- Citation
- [2002] KEHC 802 (KLR)
- Parties
- Applicant: Alphonse Kahindi Ngowa; Respondent: Senior Resident Magistrate, Voi; Respondent: The Hon. Attorney-General; Interested Party: Esther Mkaiwawi Mwang’ombe
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 190 of 2002
- Procedural Posture
- Miscellaneous Application / Ruling on Leave to Apply for Judicial Review Orders and Stay
- Outcome
- Leave to apply for certiorari and prohibition granted; leave to operate as stay; directions for filing and service given.
- Legal Topics
- Judicial Review, Certiorari, Prohibition, Leave to Apply, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alphonse Kahindi Ngowa
Applicant
Senior Resident Magistrate, Voi
Respondent
The Hon. Attorney-General
Respondent
Esther Mkaiwawi Mwang’ombe
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Leave to Apply for Judicial Review Orders and Stay
Legal Issues
- 1 Whether the applicant is entitled to leave to apply for orders of certiorari and prohibition against the proceedings in Voi SRM Cr. Case No.70 of 2002.
- 2 Whether the leave granted should operate as a stay of the criminal proceedings pending determination of the substantive application.
Ratio Decidendi
The court found that the applicant had complied with the procedural requirements for seeking leave to apply for judicial review under Order 53 of the Civil Procedure Rules. The applicant demonstrated sufficient grounds for the grant of leave, particularly in light of the Attorney-General's admission that there was no evidence to support a successful prosecution and the apparent external pressure from FIDA. The court exercised its discretion to allow the leave to operate as a stay, finding that continuation of the criminal proceedings would negatively affect the applicant. The court therefore granted leave to apply for certiorari and prohibition, and ordered that such leave would operate...
Court Disposition
Leave to apply for certiorari and prohibition granted; leave to operate as stay; directions for filing and service given.
Orders
- Leave to file and prosecute an application for orders of certiorari and prohibition is granted as prayed.
- The application shall be filed within 21 days from the date of the ruling.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISCELLANEOUS CIVIL APPLICATION NO.190 OF 2002
IN THE MATTER OF: AN APPLICATION TO APPLY FOR ORDERS OF
CERTIORARI AND PROHIBITION BY ALPHONSE
KAHINDI NGOWA
=VS=
1. SENIOR RESIDENT MAGISTRATE, VOI
2. THE HON. ATTORNEY-GENERAL…………………………RESPONDENTS
A N D
ESTHER MKAIWAWI MWANG’OMBE…………………..…INTERESTED PARTY
R U L I N G
The Applicant seeks for leave to file an application for Orders of Certiorari and Prohibition to remove the Voi SRM Cr. Case No.70 of 2002 from that court to this court with a view of quashing same and also prohibiting that court or any other similar court from prosecuting or trying the case for the offences thereunder charged or to be charged. He also seeks for the leave to operate as stay until the intended application if granted to be filed, are determined. The Applicant has properly complied with the requirements of Order 53 of the Civil Procedure Rules. The Registrar was served with the Statement of Facts together with documents required to be so served. Under these circumstances this court sees no impediments to granting the leave sought.
The Applicant as shown above however seeks that the leave if granted, may be allowed to operate as stay. He has demonstrated under these brief circumstances that continuation of the prosecution of the said case will negatively affect his client. By references to the correspondences between the Attorney-General and FIDA, the Attorney-General is shown to be acting under the pressure of FIDA despite admitting that there is no evidence upon which a successful prosecution would be based.
I am aware that allowing the leave to operate as a stay is a matter of exercise of discretion of this court. I am aware also that such discretion must be exercised judicially. It is my view however that there are sufficient grounds in this case to grant the leave to operate as a stay. I accordingly make the following orders.
ORDERS:
1. Leave to file and prosecute an application for Orders of Certiorari and prohibition is hereby granted as prayed.
2. The said application shall be filed within a period of 21 days from the date hereof.
3. Service of the application shall be done 15 days after the filing.
4. Prosecution of the said application intended to be done shall be so done on a priority basis and in any case not later than a period of 60 days from the date of service.
5. If the time schedules set above are by any lawful reason not met the Applicant shall seek further orders from this court. 6. The leave granted shall operate as stay until the intended applications are determined.
7. Costs in the cause.
Dated and delivered at Mombasa this 5th day of June, 2002.
D. A. ONYANCHA
J U D G E