[2014] KEHC 7132 (KLR)
The court found that the application for leave to apply for judicial review was made within the statutory six-month period following the Magistrate's order. The applicant demonstrated an arguable case that the Magistrate acted without jurisdiction in ordering the release of the cotton to the 3rd interested party,...
Source-derived case information.
- Citation
- [2014] KEHC 7132 (KLR)
- Parties
- Applicant: Rupa Cotton Mills (EPZ) Ltd; Respondent: Senior Principal Magistrate’s Court, Machakos; Respondent: Inspector General of Police; Interested Party: George Lemein Ole Musei; Interested Party: Thomas Kilonzo Matheka; Interested Party: Ally Nasoor
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 19 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Leave to Apply for Judicial Review and Stay
- Outcome
- Leave to apply for judicial review granted; leave to operate as stay granted.
- Judges
- LN Mutende
- Legal Topics
- Judicial Review, Certiorari, Prohibition Orders, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rupa Cotton Mills (EPZ) Ltd
Applicant
Senior Principal Magistrate’s Court, Machakos
Respondent
Inspector General of Police
Respondent
George Lemein Ole Musei
Interested Party
Thomas Kilonzo Matheka
Interested Party
Ally Nasoor
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Leave to Apply for Judicial Review and Stay
Legal Issues
- 1 Whether the applicant is entitled to leave to apply for orders of certiorari and prohibition against the orders of the Senior Principal Magistrate issued on 6th February 2014.
- 2 Whether the leave granted should operate as a stay of the Magistrate's orders and any police action for release of the subject cotton bales.
Ratio Decidendi
The court found that the application for leave to apply for judicial review was made within the statutory six-month period following the Magistrate's order. The applicant demonstrated an arguable case that the Magistrate acted without jurisdiction in ordering the release of the cotton to the 3rd interested party, especially as the applicant was not a party to the criminal proceedings and claimed a lien over the cotton. The court held that the applicant had met the threshold for grant of leave to apply for orders of certiorari and prohibition, and that the leave should operate as a stay of the impugned orders and any police action for release of the cotton, pending further orders of the...
Court Disposition
Leave to apply for judicial review granted; leave to operate as stay granted.
Orders
- Leave is granted to the applicant to apply for orders of certiorari to quash the orders of the Senior Principal Magistrate of 6th February 2014 in Machakos CM Cr. C. No. 1449/2013.
- Leave is granted to the applicant to apply for orders of prohibition against the Inspector General of Police and all officers under him from enforcing the orders of the Senior Principal Magistrate of 6th February, 2014 in Machakos or in any way ordering the applicant company to release the subject cotton.
Full Case Text
Judgment text and source record
28 paragraphs
No. 200/2014
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL MISC APPLICATION NO. 19 OF 2014
RUPA COTTON MILLS (EPZ) LTD..................................................APPLICANT
VERSUS
1. THE SENIOR PRINCIPAL MAGISTRATE’S COURT, MACHAKOS
2. INSPECTOR GENERAL OF POLICE.......................................RESPONDENTS
AND
1. GEORGE LEMEIN OLE MUSEI
2. THOMAS KILONZO MATHEKA
3. ALLY NASOOR.............................................................INTERESTED PARTIES
RULING
In an Application dated 10th February, 2014 brought pursuant to the provisions of Order 53 of the Civil Procedure Rules, the Applicant seeks orders as follows:-
That leave be granted to the Applicant to apply for orders of certiorarito quash the orders of the Senior Principal Magistrate of 6th February 2014 in Machakos CM Cr. C. No. 1449/2013.
That leave be granted to the Applicant to apply for orders of prohibitionagainst the Inspector General of Police and all officers under him from enforcing the orders of Senior Principal Magistrate of 6th February, 2014 in Machakosor in any way ordering the Applicant Company to release the subject cotton.
That the grant of leave do operate as a stay of the Machakos Senior Principal Magistrates courts order of 6th February, 2014 in CM Cr. C. No. 1449 of 2014 and/or any action by the police in seeking the release of the subject cotton bales.
It is premised on grounds that ;-
That the Applicant a Limited Liability Company operating a cotton mill designed for spinning ginned cotton and manufacture of finished cotton products did on 28th November, 2013 purchase cotton bales from the 1st and 2nd Interested Parties at a price of Kshs. 8,478,400/=.
That 1st and 2nd Interested Parties were subsequently charged in Machakos Senior Principal Magistrate Court case Number 1447 of 2013 for the offence of stealing the cotton.
That on 6th February, 2014 theHonourable Senior Principal Magistrate allowed withdrawal of the charges against the accused for no apparent reason and without jurisdiction ordered the release of the cotton to the 3rd Interested Party.
Thatthe release of the cotton would adversely affect the Applicant Company as enumerated in the supporting affidavit. The applicant was not a party to the criminal proceedings and claims a lien on the cotton.
The application is supported by an affidavit deponed by Probobdh K. Shah the Managing Director of the Applicant Company
The order the Applicant seeks to quash was granted by the Senior Principal Magistrate, Machakos on the 6th February, 2014 the application having been made today the11th February, 2014, it is within 6 months. In the premises, leave should issue as sought.
I therefore grant prayers 2 and 3as prayed. Further, prayer4 is granted until I order otherwise.
DATED, SIGNED and DELIVEREDat MACHAKOS this 11THday of FEBRUARY 2014
L.N. MUTENDE
JUDGE