[2021] KEHC 5867 (KLR)
The High Court found that the trial magistrate's order regarding the release of passports lacked certainty and did not specify whether the accused had complied with visa requirements or left the country. The court exercised its supervisory jurisdiction under Section 362 of the Criminal Procedure Code, set aside the...
Source-derived case information.
- Citation
- [2021] KEHC 5867 (KLR)
- Parties
- Applicant: Republic; Respondent: Godagandenite Hewagamage Anuradha Sanjeewa & 7 Others
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 034 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Notice of Motion for Stay of Release of Exhibits
- Outcome
- Application allowed in part; previous order set aside; case to proceed before a different court; passports not to be released.
- Judges
- AN Ongeri
- Legal Topics
- Supervisory Jurisdiction, Release of Exhibits, Criminal Procedure Code Section 362, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
Godagandenite Hewagamage Anuradha Sanjeewa & 7 Others
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Notice of Motion for Stay of Release of Exhibits
Legal Issues
- 1 Whether the trial court's order for release of passports (exhibits) was proper and certain.
- 2 Whether the High Court should exercise its supervisory jurisdiction to set aside the order and direct further proceedings.
Ratio Decidendi
The High Court found that the trial magistrate's order regarding the release of passports lacked certainty and did not specify whether the accused had complied with visa requirements or left the country. The court exercised its supervisory jurisdiction under Section 362 of the Criminal Procedure Code, set aside the ambiguous order, and directed that the hearing of the case proceed before a different court. The passports, being exhibits, were not to be released until proper determination of the matter. The court emphasized the need for clarity and certainty in judicial orders, especially where the liberty of accused persons and the integrity of exhibits are concerned.
Court Disposition
Application allowed in part; previous order set aside; case to proceed before a different court; passports not to be released.
Orders
- The previous order for release of passports is set aside.
- The hearing of the case shall proceed before a different court.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
MISC. CRIMINAL APPLICATION CASE NO.E.034 OF 2021
REPUBLIC........................................................................................APPLICANT
V E R S U S
GODAGANDENITE HEWAGAMAGE
ANURADHA SANJEEWA & 7 OTHERS.................................RESPONDENTS
R U L I N G
1. The Application coming for consideration in this Ruling is the Notice of Motion dated 23/4/2021 seeking the following Orders:-
(i) THAT the Application be satisfied urgent (SPENT).
(ii) THAT the Court be pleased to stay the order for release of Exhibits (passports) before proper determination of this matter.
(iii) THAT this Court be pleased to make any other order that it may deem fit and just to grant.
2. The Application is premised on the grounds on the face of it and supported by the Affidavit of Sergeant Ruth Anzala in which it is deposed that the Respondents were arrested as suspects on 14/1/2021 and charged with the offence of being unlawfully In Kenya among other charges.
3. Further, that the Court dismissed the case under Section 89 of the Criminal Procedure Code without citing any reasons and further that the Trial Court did not disclose any specific clause relied on.
4. The Applicant was unable to serve the application upon the Respondents who are foreigners. The Application dated 23/4/2021 is brought under Section 49 (1) (f) (g) and (h) of the Constitution.
5. I have perused the original Court Record and I find that the Trial Magistrate did not give a conclusive order.
6. The TrialCourtorderedthat“the Accused Persons shall remain at liberty to either comply with Visa Registration in Kenya and/or leave the Country forthwith”.
7. It is not clear whether the Accused Persons complied or left the Country.
8. This Court has powers under its Supervisory Jurisdiction in the Constitution and Section 362 of the Criminal Procedure Code to call for and examine any proceedings before the Subordinate Court to ensure its correctness.
9. The said Section states as follows: - “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.”
10. I find that the order issued herein lacks in certainty.
11. I set the said order aside and direct that the hearing of this case proceeds since the Accused Persons pleaded not guilty. The Passports should not be released since they are Exhibits.
12. The case to be heard by any other Court other than the Court which gave the order for release of the Passports.
Delivered, signed and dated at Kericho this 11thday of June, 2021.
A. N. ONGERI
JUDGE