[2004] KEHC 1634 (KLR)
The court found that the application for leave to apply for orders of certiorari and prohibition was incompetent in respect of criminal cases instituted more than six months before the application, as required by Order LIII Rule 2 of the Civil Procedure Rules. For the remaining cases, the court held that the...
Source-derived case information.
- Citation
- [2004] KEHC 1634 (KLR)
- Parties
- Applicant: Joseph Mbugua Waweru; Applicant: Holywood Motors Ltd; Applicant: Blue Land Motors Ltd; Applicant: Fatherland Motors Ltd; Applicant: Waiyaki Highway Motors Ltd; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 11 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Apply for Orders of Certiorari and Prohibition
- Outcome
- application dismissed
- Legal Topics
- Judicial Review, Certiorari, Prohibition, Criminal Charges, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mbugua Waweru
Applicant
Holywood Motors Ltd
Applicant
Blue Land Motors Ltd
Applicant
Fatherland Motors Ltd
Applicant
Waiyaki Highway Motors Ltd
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Apply for Orders of Certiorari and Prohibition
Legal Issues
- 1 Whether the applicant is entitled to orders of certiorari and prohibition to quash pending criminal proceedings against him.
- 2 Whether the criminal charges arise from matters that should be pursued as civil disputes rather than criminal offences.
- 3 Whether the application for leave is incompetent due to being filed outside the six-month limitation period under Order LIII of the Civil Procedure Rules.
Ratio Decidendi
The court found that the application for leave to apply for orders of certiorari and prohibition was incompetent in respect of criminal cases instituted more than six months before the application, as required by Order LIII Rule 2 of the Civil Procedure Rules. For the remaining cases, the court held that the offences charged—obtaining money by false pretences and stealing by servant—are properly prosecutable under the Penal Code, even if they arise from commercial transactions. The court was not satisfied that the police or magistrate had exceeded or abused their powers, and there is no legal basis to restrict prosecution of such offences to civil proceedings. Accordingly, the application...
Court Disposition
application dismissed
Orders
- The application by way of Notice of Motion is dismissed.
- There will be no order as to costs.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
. MISC. CIVIL CASE NO. 11 OF 2004
JOSEPH MBUGUA WAWERU, HOLYWOOD MOTORS LTD, BLUE
LAND MOTORS LTD, FATHERLAND MOTORS LTD AND WAIYAKI
HIGHWAY MOTORS LTD FOR LEAVE TO APPLY AN ORDER OF
PROHIBITION AND CERTIORARI
(EX-PARTE)
AND IN THE MATTER OF
CRIMINAL CASES NO. 1517/03 (CMS COURT KIBERA), 2495/03,
2280/03 AND 1204/01 (CMS COURT NAIROBI) 22521/02 (CMS COURT
MAKADARA), 1189/02 (CMS COURT NAKURU, REPUBLIC VERSUS
JOSEPH MBUGUA WAWERU
RULING.
The Applicant Joseph Mbugua Waweru has filed the notice of motion seeking for orders of certiorari and prohibition to quash all the criminal cases being
a) Criminal case No. 1517/2003, Kibera Chief Magistrate’s Court.
b) Criminal Case No. 2495/2003, 2280/2003 and 1204/2001 at Chief Magistrate’s Court Nairobi.
c) Criminal Case No. 22521/2002 at Chief Magistrate’s Court Makadara.
d) Criminal Case No. 1189/2002 at Chief Magistrate’s Court Nakuru.
The Applicant has been charged in these six criminal charges which are all pending. He is held in remand at the Nairobi Remand Home as he claims he is unable to raise bail in all the cases. The application is supported by his affidavit a statement of facts, which details the circumstances under which the criminal cases arose. The applicant is the shareholder and managing Director of the 2nd 3rd, 4th and 5th applicants. These are Limited Liability Companies. The applicant states that in the course of business transaction, he received money from the various complainants to deliver to them motor vehicles either from Dubai or Japan. He contents that failure to deliver the vehicles is a breach of contract this should be pursed within the perview of the Civil Procedure Act and the Companies Act, but not the Criminal Jurisdiction where he has been charged with various charges of obtaining money by false pretence.
According to the charge sheets attached to the Notice of Motion, the
applicant is charged with:-
1) Criminal Case No. 2280/2003, the accused is charged with an offence of obtaining money by false pretense contrary to section 33 of the Penal Code.
2) The charges in the cases No. 1189/2002 and 1517/2003 are similar to the above. But in file No. 2252/2003, the applicant is charged with the offence of stealing by servant, which is contrary to section 283 of the Penal Code.
The particulars of the offence state that the applicant stole a vehicle registration No. KAN 192 Z, which was entrusted to him to sell. The offences the applicant is facing are provided for under the Penal Code.
The applicant does not deny that he received money from the complainants but states that given time he will deliver the vehicles. The provisions of order LIII (2) of the Civil Procedure Rules provides and I quote
‘’Leave shall not be granted to apply for an order of certiorari to rename any inugement, order, decrees, conviction or other proceedings for the purposes of its being quashed under the application for leave is made not later than six months after the date of the prosecuting as such shorter as may be prescribed by any Act: and whether proceeding is subject to appear and a time is limited by law for the bringing of the appeal, the Judge may adjourn the application for leave until the appeal is determined or the time of appealing has expired’’.
It is clear that some of the charges were instituted in the year 2001. It is not clear when the charges in Criminal Cases No. 2495/2003 were instituted but the other charges were instituted six months before the applicant sought leave and I find the application for leave incompetent in respect of these cases where leave has been sought after six months.
As regards case No. 2495/2003, 1517/2003 and 2280/2003 which I am not able to tell when the charges were brought, I have perused the charge, the particulars and the provisions of the Penal Code and with respect to the applicant, the said offences are provided for under the penal code, that is obtaining money by false pretences and stealing by Agent. I am not satisfied that the Police or the Chief Magistrate have exceeded or abused their powers. There is no provision under the Penal Code that offences arising out of commercial transactions should be dealt with under the law of contract. An offence is an offence. Accordingly the application by way of Notice of Motion is hereby dismissed. There will be no order to costs.
Orders Accordingly.
M. KOOME J.
14/1/2004