[2021] KEHC 13543 (KLR)
The court held that it could not grant the orders sought because the ex parte applicant failed to provide documentary evidence, such as the charge sheet or decision, to demonstrate the existence of the criminal charges or proceedings she sought to quash. Mere allegations in affidavits, without supporting documents,...
Source-derived case information.
- Citation
- [2021] KEHC 13543 (KLR)
- Parties
- Applicant: Republic; Respondent: Director of Public Prosecutions; Respondent: Attorney General; Respondent: Principal Magistrate Mumias Court; Interested Party: Omar Osore; Applicant: Christine Amachanji Sumba
- Court
- High Court
- Court Station
- High Court at Vihiga
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 44 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Judgment
- Outcome
- motion dismissed
- Judges
- DN Musyoka
- Legal Topics
- Judicial Review, Quashing of Charges, Criminal Procedure, Evidence Requirement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Director of Public Prosecutions
Respondent
Attorney General
Respondent
Principal Magistrate Mumias Court
Respondent
Omar Osore
Interested Party
Christine Amachanji Sumba
Applicant
Procedural Posture
Miscellaneous Criminal Application / Judgment
Legal Issues
- 1 Whether the court can grant judicial review orders to quash criminal charges without evidence of the existence of such charges.
- 2 Whether failure to attach the charge sheet or decision sought to be quashed is fatal to the application.
Ratio Decidendi
The court held that it could not grant the orders sought because the ex parte applicant failed to provide documentary evidence, such as the charge sheet or decision, to demonstrate the existence of the criminal charges or proceedings she sought to quash. Mere allegations in affidavits, without supporting documents, are insufficient to move the court to exercise its judicial review jurisdiction. The absence of such evidence meant the application was unsubstantiated and had to be dismissed.
Court Disposition
motion dismissed
Orders
- The Motion dated 23rd July 2019 is dismissed.
- The stay orders made on 2nd July 2019 are discharged.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT VIHIGA
MISCELLANEOUS CRIMINAL APPLICATION NO. 44 OF 2019
REPUBLIC......................................................................................................................APPLICANT
VERSUS
THE DPP................................................................................................................1ST RESPONDENT
THE ATTORNET GENERAL..........................................................................2ND RESPONDENT
PRINCIPAL MAGISTRATE MUMIAS COURT.........................................3RD RESPONDENT
OMAR OSORE.........................................................................................INTERESTED PARTY
EX PARTE: CHRISTINE AMACHANJI SUMBA
JUDGMENT
1. The ex parte applicant herein has moved the court for Judicial Review orders with relation to criminal proceedings that she claims have been brought against her by the 1st respondent before the 3rd respondent.
2. The first prayer in the substantive Motion is for the quashing of the criminal charges in Mumias PMCCRC No. 1421 of 2018. The ex parte applicant has not attached to her affidavit in support a copy of the charge sheet, which carries the charges or the decision of the 1st respondent that she is asking the court to quash. The court does not act blindly. It has to see evidence that those charges do in fact exist. It is not enough to recite them in the affidavit in support. The actual document drawn by the 1st respondent which bears those charges ought to be exhibited. As it is there is no evidence that those charges exist.
3. Secondly, the said charges are alleged to have been laid before the 3rd respondent in Mumias PMCCRC No. 1421 of 2018, and it is in that context that the 3rd respondent has been named as a party to these proceedings. Yet no document has been laid before this court as evidence that such a suit exists before the 3rd respondent, where the ex parte applicant is the accused person.
4. The basis of these Judicial Review proceedings ought to be the charges in Mumias PMCCRC No. 1421 of 2018, and the charges themselves ought to have been placed on record. With that the averments in the affidavit that the ex parte applicant made in her affidavit in support amount to mere allegations.
5. This court is not sufficiently moved, in the circumstances, to make the orders sought. I shall accordingly dismiss the Motion dated 23rd July 2019. The stay orders made on 2nd July 2019 are hereby discharged. It is so ordered.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 26TH DAY OF NOVEMBER 2021
W. MUSYOKA
JUDGE