[2003] KEHC 214 (KLR)
The court found that the applicant had established a genuine fear of imminent arrest by the police in connection with a civil fee dispute, despite the entire decretal sum being deposited with the court and a bill of costs pending taxation. The court held that the use of police powers in such circumstances would...
Source-derived case information.
- Citation
- [2003] KEHC 214 (KLR)
- Parties
- Applicant: Joseph Kiborus Tarus t/a Tarus and Company Advocates; Respondent: Commissioner of Police; Respondent: Honourable Attorney General of the Republic of Kenya
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 473 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Leave for Judicial Review
- Outcome
- Leave granted for judicial review; interim stay of police action for 21 days.
- Legal Topics
- Judicial Review, Certiorari, Prohibition, Mandamus, Police Powers, Advocate Client Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kiborus Tarus t/a Tarus and Company Advocates
Applicant
Commissioner of Police
Respondent
Honourable Attorney General of the Republic of Kenya
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Leave for Judicial Review
Legal Issues
- 1 Whether the applicant is entitled to leave to apply for judicial review orders of certiorari, prohibition, and mandamus against the Commissioner of Police.
- 2 Whether the police action to arrest the applicant for alleged stealing by agent is lawful in light of ongoing civil proceedings and fee dispute.
- 3 Whether the applicant faces a real risk of injustice if leave and stay are not granted.
Ratio Decidendi
The court found that the applicant had established a genuine fear of imminent arrest by the police in connection with a civil fee dispute, despite the entire decretal sum being deposited with the court and a bill of costs pending taxation. The court held that the use of police powers in such circumstances would likely result in injustice to the applicant and constitute an abuse of process. Accordingly, the court exercised its discretion to grant leave to apply for judicial review and ordered that such leave operate as a stay of the intended police action for 21 days, pending inter partes hearing.
Court Disposition
Leave granted for judicial review; interim stay of police action for 21 days.
Orders
- Leave is granted to the ex-parte applicant in terms of prayer 1 of the Chamber Summons dated 1.8.03.
- The leave shall operate as a stay for 21 days.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT OMBASA MISC. APPL. CIVIL CASE NO. 473 OF 2003
IN THE MATTER OF: AN APPLICATION FOR JUDICIAL REVIEW
BY JOSEPH KIBORUS TARUS T/A TARUS
AND COMPANY ADVOCATES FOR LEAVE
TO APPLY FOR ORDES OF CERTIORARI,PROHIBITION AND MANDAMUS
ANDIN THE MATTER OF: DECISION BY THE COMMISSIONER OF
POLICE THROUGH POLICE 18, BOND AND
BAIL DATED 29TH DAY OF JULY 2003
AND
IN THE MATTER OF: THE HIGH COURT CIVIL CASE NO. 68 OF
2001(MOMBASA) MOTATIRO MATHIAS
NYAMOHANGA –VS-HUSSEIN ALI SEIF
AND
IN THE MATTER OF: THE CONSTITUTION OF KENYA, THE LAW
SOCIEITY OF KENYA ACT (Cap 18), THE
ADVOCATE’S ACT (Cap 16 laws of Kenya
Section 80, 61(3), 60, 45, 53, 59, THE PENAL
CODE (Cap 63 L.o.K, Section 124 & 283(b), THE
CRIMINAL PROCEDURE ACT (Cap 75) Civil
Procedure Act (Cap 21 L.o.K, Order 26, 52 rule 4
of the Civil Procedure Rules)
AND
IN THE MATTER OF: THE HONOURABLE ATTORNEY GENERAL
OF THE REPUBLIC OF KENYA
R U L I N G
The Ex-parte Applicant has sought leave to apply for Judicial Review for orders of Certiorari, Prohibition and Mandamus. The reasons given are that the plaintiff in HCC 68 OF 2001 MONTATIRO NYAMOHANGA has filed a complaint with the police against his Lawyer the Applicant on the ground that he, the Applicant has refused to pay him a sum of Kshs.338,190/= being the entire decretal sum inclusive Of costs.
The judgement having been delivered by Consent on 14. 4.03 a cheque was paid to the Applicants on 8. 7.03. The disagreement on fees payable arose on 24. 7.03 and the applicant has now filed a Bill of costs coming up for taxation on 5. 9.03. In the meantime the entire sum has been deposited with the Court but the police are in hot pursuit and want to arrest the applicant for purposes of charging him with the offence of stealing by Agent today.
It is against the given background that the Court is satisfied the applicant has a genuine fear and the situation is likely to cause a lot of injustice to him if not arrested. It is therefore ORDERED:
1. That leave is hereby granted to the Ex-parte Applicant in terms of prayer 1 of the Chamber Summons dated 1. 8.03.
2. That the said leave do operate as a stay for 21 days The application be filed and served and heard on the 21. 8.2003.
Dated and Delivered at Mombasa this 4th day of August, 2003.
P.M. TUTUI
COMMISSIONER OF ASSIZE