[2000] KEHC 106 (KLR)
The court held that the application before it, being a Notice of Motion for an order of prohibition under Order 53 of the Civil Procedure Rules, does not on its face require referral to a constitutional court or determination by more than one judge. The judge emphasized that applicants are restricted to the grounds...
Source-derived case information.
- Citation
- [2000] KEHC 106 (KLR)
- Parties
- Applicant: Republic; Respondent: Chief Magistrate, Nairobi; Applicant: Peter Mwangi Gathimba
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 877 of ??
- Procedural Posture
- Miscellaneous Application / Ruling on Referral to Constitutional Court
- Outcome
- Application for referral to constitutional court not granted; parties to appear before Chief Justice for further directions.
- Judges
- JK Mulwa
- Legal Topics
- Judicial Review, Prohibition Orders, Constitutional Reference, Prosecutorial Powers
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Chief Magistrate, Nairobi
Respondent
Peter Mwangi Gathimba
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Referral to Constitutional Court
Legal Issues
- 1 Whether the application requires referral to a constitutional court for determination of KACA's prosecutorial powers under the Penal Code.
- 2 Whether the application as filed can be determined by a single judge under Order 53 of the Civil Procedure Rules.
Ratio Decidendi
The court held that the application before it, being a Notice of Motion for an order of prohibition under Order 53 of the Civil Procedure Rules, does not on its face require referral to a constitutional court or determination by more than one judge. The judge emphasized that applicants are restricted to the grounds for which leave was granted, and unless the application itself raises a constitutional issue necessitating interpretation, it should be determined by a single judge. The matter of whether more than one judge is required is to be placed before the Chief Justice for direction.
Court Disposition
Application for referral to constitutional court not granted; parties to appear before Chief Justice for further directions.
Orders
- Parties to appear before the Chief Justice on 31.8.2000 for determination of whether the application requires more than one judge.
Full Case Text
Judgment text and source record
15 paragraphs
IN THE HIGH COURT AT NAIROBI
MISC. CIVIL CASE NO. 877 OF 2000
REPUBLIC………………………………………………………APPLICANT
-VERSUS-
CHIEF MAGISTRATE, NAIROBI……………………………….RESPONDENT
EX PARTE…………………………………….PETER MWANGI GATHIMBA
RULING
Mr. Ngatia for the Applicant in this Application says that he would like to have the matter referred to a Constitutional Court to determine whether KACA can prosecute cases under the Penal Code. Mr. Kangata opposes the suggestion on the ground that there is no proper application before the court asking for reference for constitutional consideration of the matter. He further contents that these constitutional references are hampering the efforts of KACA to prosecute cases. He asks that the application should be heard as it is at the present.
The application before the court is a Notice of Motion asking for an order of prohibition directed to the Chief Magistrate’s Court, Nairobi prohibiting him from hearing or determining the Chief Magistrates Criminal Case No. 1387/200 at Nairobi against the accused persons namely Zipporah Mbesa Wandera and 3 others. This application was filed after leave under Order 53 of the Civil Procedure Rules was granted on 11. 8.2000 by the Court.
The application as it is does not require more than one judge to determine but Mr. Ngatia expressed the view that they will during the hearing raise the question of capacity as to whether the KACA can prosecute cases under the Penal Code which may require constitution rules interpretation.
Taking into account the provisions of order 53 of the Civil Procedure Rules which does not allow an applicant to rely on grounds other than those for which leave was granted, the only matter which the Chief Justice may be required to determine is whether the application as it is requires more than one judge to determine.
The parties will appear before the Chief Justice on 31. 8.2000.
Dated and delivered on 30th day of August, 2000.
KASANGA MULWA
JUDGE