Republic v Ewins (Criminal Revision E058 of 2025) [2026] KEHC 10944 (KLR) (17 July 2026) (Ruling)

Republic v Ewins (Criminal Revision E058 of 2025) [2026] KEHC 10944 (KLR) (17 July 2026) (Ruling) Neutral citation: [2026] KEHC 10944 (KLR) Republic of Kenya In the High Court at Malindi Criminal Revision E058 of 2025 M Thande, J July 17, 2026 Between Republic Applicant and Elizabeth Mueni Ewins Respondent Ruling 1.By an Application dated 12.5.25, the Applicant seeks stay of the order issued on 26.3.25, in Kilifi MCCR No. E407 of 2024. The impugned order stayed warrants of arrest issued against the Respondent who is charged with the offence of forgery contrary to Section 345 as read with Section 349 of the Penal Code. 2.The Applicant vide an affidavit sworn on 12.5.25 by Nancy M. Njeru, Prosecution Counsel, stated that the warrants were issued by Hon. Ivy Wasike PM and were to be executed through Interpol. The matter was mentioned several times for an update on execution of the warrants and extradition process. On 18.12.24, the matter was withdrawn under Section 87(a) of the Criminal Procedure Code (CPC). It was further averred that upon being served with the warrants and extradition proceedings at the Westminster Magistrate’s Court in the United Kingdom, the Respondent file an application dated 24.3.25. The application was heard ex parte on 26.3.25 and the warrants of arrest stayed, pending inter partes hearing. The Applicant further stated that on 14.4.25 when the matter came up for hearing the Respondent’s advocate was absent and directions were given for filing of submissions; that later in the day, an advocate appeared for the Respondent and obtained extension of the orders. 3.It is the Applicant’s case that it is only the High Court that has the jurisdiction to review orders of a magistrate’s court, decisions of the Director of Public Prosecutions and applications for redress for constitutional violations. Additionally, that it is only the High Court that has jurisdiction to set aside extradition orders. 4.The Applicant stated that the matter was heard on 28.4.25 and 2.5.25 and a ruling date fixed for 16.6.25. It was further averred that the impugned order has directly impacted the extradition proceedings before the court in the UK, and is prejudicial to the prosecution. The Applicant urged that the orders sought be granted as prayed. 5.The Application is also supported by the affidavit sworn on 12.5.25 by PC Dennis Muthoka an investigating officer who reiterated the averments of Nancy Njeru. He further averred that he was investigating the claim by one Wanjiru Abdalla Yusuf that the Respondent had forged documents to transfer her property known as Plot No. 49, Watamu; that the Respondent declined to record a statement in spite of requests to do so; that the Respondent left the country after DCI Kilifi intensified efforts to trace her for purposes of recording a statement; that this is perceived as escaping lawful jurisdiction and delaying justice. 6.It was further stated that upon issuance of the warrant of arrests, he wrote a letter dated 3.6.24 to Interpol to execute the same; that vide a letter dated 22.7.24, Interpol Nairobi responded and asked him to initiate the extradition process through the DPP; that he prepared the extradition documents and sent file to DPP for action; that by a letter dated 12.11.24, the DPP confirmed that the extradition request had been submitted to the UK through diplomatic channels; that due to delay, the case was withdrawn under Section 87(a) of the CPC and the warrants of arrest remained in force to enable extradition of the Respondent; that the Respondent was arrested by UK authorities and a pre-trial was ongoing in English courts for her extradition; that the impugned orders are interfering with the extradition process; that its is the interest of justice that the stay orders be set aside to allow the extradition of the Respondent. 7.The Respondent opposed the Application vide grounds of opposition dated 27.5.25. The grounds are that the Application does not show any irregularity, impropriety and incorrectness to the orders in question; that that the Applicant seeks that the court interferes with the discretion of a magistrate exercised lawfully without showing that the decision was erroneous; that the application is in bad faith intended to forestall the court ruling scheduled for 16.6.25; that the Application ought to have been filed in the trial court before the magistrate who issued the impugned orders before being filed in this court; that the Application is vexatious and an abuse of the process of the court given that the Applicant participated in the proceedings in the trial court and filed submissions only, to turn around and seek revision of the orders issued, before the ruling slated for 16.6.25. 8.In her replying affidavit sworn on 28.5.25, the Respondent reiterated the grounds of opposition. She further averred that ­­­­­­­­­­­­­­­­­­­­upon the criminal charges against her being withdrawn, the warrants of arrest and extradition proceedings ought not to have remained in force; that she is always in and out of Kenya and there is no need for the warrants as she is able to present herself to court any time; that the warrants of arrest were based on falsehoods and concealment of material facts including Malindi CMCC No. 298 of 2018 and Malindi ELC No. 109 of 2019 which she filed against Wanjiru Yusuf Abdalla; that the criminal charges against her are an abuse of the court process. The Respondent urged that the Application be dismissed with costs. 9.This Court has supervisory jurisdiction over subordinate courts. Article 165(6) and (7) of the Constitution thereof provide as follows:(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice. 10.In exercise of its supervisory jurisdiction, this Court is empowered to call for the record of proceedings in such subordinate courts, and make and give appropriate orders and directions as it deems necessary to ensure the fair administration of justice. 11.Upon obtaining the record of criminal proceedings in subordinate courts, this Court is required to examine the same and satisfy itself as to the correctness, legality or propriety of any finding, sentence or order. Section 362 of the CPC provides:The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court. 12.Section 364 confers upon this Court the power of revision as follows: 1.In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—a.in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;b.in the case of any other order other than an order of acquittal, alter or reverse the order.c.… 13.I have perused the record herein with a view to satisfying myself as to the correctness legality or propriety of the order complained of. 14.The application giving rise to the impugned orders staying the warrants of arrest against the Respondent is dated 24.3.25. The Respondent sought stay of execution of suspension as well as review and setting aside of the warrants of arrest pending the hearing and determination of the application. The main prayer was that the court “do strike out and/or order the termination of the charges against the Applicant in this court pursuant to the charges dated 27th May 2024. The grounds upon which that application was premised are inter alia that the charges against the Respondent are likely to violate and infringe her constitutional rights to access justice, fair administrative action and fair hearing and trial. 15.The question for determination before this Court is not whether the warrants of arrest and the charges the Respondent is facing before the trial court are legitimate, but rather, whether the trial court had the requisite jurisdiction to entertain the Respondent’s application before it, which seeks redress for a threat to her constitutional rights. 16.Under the Constitution, it is only the High Court that has the jurisdiction to uphold and enforce the Bill of Rights. Article 23(1) provides:The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. 17.The Constitution goes on to provide at Article 165(3)(b) as follows:3)Subject to clause (5), the High Court shall have—(a)unlimited original jurisdiction in criminal and civil matters; (b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened; 18.As regards the jurisdiction of magistrates’ courts, Section 8 the Magistrates’ Court Act provides as follows: 1.Subject to Article 165(3)(b) of the Constitution and the pecuniary limitations set out in section 7(1), a magistrate's court shall have jurisdiction to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. 2.The applications contemplated in subsection (1) shall only relate to the rights guaranteed in Article 25(a) and (b) of the Constitution. 19.The forgoing provision confers upon the Magistrates’ Courts jurisdiction to hear and determine applications for redress for violations of fundamental rights or freedoms in the Bill of Rights. However, that jurisdiction is limited to the rights guaranteed in Article 25(a) and (b), namely freedom from torture and cruel, inhuman or degrading treatment or punishment and freedom from slavery or servitude. 20.The orders sought by the Respondent, for stay or suspension of the warrants of arrest against her were anchored on the said prayer for redress for threat to the Respondent’s constitutional rights. By dint of Articles 23(1) and 165(3)(b) and Section 8 of the Magistrates’ Court Act, the application was clearly outside the jurisdiction of the Magistrate’s Court. An application for such orders could only have been entertained by the High Court. 21.I am fortified in my finding by the holding in Khalid & 16 others v Attorney General & 2 others [2019] KESC 93 (KLR) where the Supreme Court stated: 119.It consequently follows that the position in which the appellants sought to clarify regarding the jurisdiction of the Magistrate’s Courts in dealing with the enforcement of the Bill of Rights has since been addressed by section 8 of the Magistrates’ Court Act. However, that legislation was not in force when the Appellants were first before the Magistrate’s Court and the Magistrate’s Court at that time rightly applied the applicable law. Parliament has granted to the Magistrates Courts power to consider applications on alleged violations of the Bill of Rights but has limited that power to only two rights under article 25(a) and (b): freedom from torture and cruel, inhuman or degrading treatment or punishment; and freedom from slavery or servitude. This limitation is constitutional as Parliament does not bar a person from bringing a case alleging violation of his right but only limits the forum where that cause can be done. 22.The Supreme Court went on to state: 120.We therefore find and hold that there is now a legislation that provides on how Magistrates courts may determine allegations of infringement of fundamental rights. Though limited, the same is constitutional as an aggrieved person, while he might not on all allegations approach the Magistrate courts, still has recourse to the High Court, which is the court constitutionally empowered to address allegations of violations of the Bill of Rights. 23.The law, is that a court may only exercise that jurisdiction which has been conferred upon it by the Constitution, statute or both. This was succinctly stated by the Supreme Court in the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR as follows:A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. 24.In entertaining the Respondent’s application dated 23.4.25 and granting the impugned orders, the trial court exceeded the jurisdiction conferred upon it by statute. Consequently, the said orders issued without jurisdiction are void and cannot stand (see Macfoy vs. United Africa Co. Ltd [1961] 3 All E.R. 1169. 25.I accordingly find that the application is merited and the same is allowed on terms that the orders issued in Kilifi CMCR No. E407 of 2024 on 26.3.25 staying execution of the warrants of arrest against the Respondent are hereby set aside. DATED SIGNED AND DELIVERED IN MALINDI THIS 17TH DAY OF JULY 2026_____________________M. THANDEJUDGE