[2004] KEHC 1049 (KLR)
The court held that the application for release from civil jail was incompetent because the Civil Procedure Rules expressly provide a mechanism for challenging the Deputy Registrar's order—namely, by appeal to a judge in chambers under Order 48 Rule 5(2). The applicant's invocation of section 3A of the Civil...
Source-derived case information.
- Citation
- [2004] KEHC 1049 (KLR)
- Parties
- Appellant: Saidi Ali Mwaraoni; Respondent: Binti Sultan Ali Mwachangu
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 75 of 1997
- Procedural Posture
- Civil Appeal / Ruling on Application for Release From Civil Jail
- Outcome
- application struck out with costs
- Legal Topics
- Execution of Decrees, Civil Jail, Applications for Release, Powers of Deputy Registrar
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Saidi Ali Mwaraoni
Appellant
Binti Sultan Ali Mwachangu
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Release From Civil Jail
Legal Issues
- 1 Whether the application for release from civil jail under section 3A and 38B of the Civil Procedure Act is competent when there is an express provision for appeal under Order 48 Rule 5(2).
- 2 Whether the applicant was entitled to relief from civil jail on grounds of inability to pay taxed costs.
Ratio Decidendi
The court held that the application for release from civil jail was incompetent because the Civil Procedure Rules expressly provide a mechanism for challenging the Deputy Registrar's order—namely, by appeal to a judge in chambers under Order 48 Rule 5(2). The applicant's invocation of section 3A of the Civil Procedure Act was therefore misconceived, as the inherent powers of the court cannot be used where there is a specific statutory procedure. Consequently, the application was struck out with costs.
Court Disposition
application struck out with costs
Orders
- The application is struck out as incompetent.
- The applicant shall pay the costs of the application.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL APPEAL NO. 75 OF 1997
SAIDI ALI MWARAONI ………………………………………APPELLANT Versus BINTI SULTAN ALI MWACHANGU ……………………. RESPONDENT
R U L I N G
Exercising her powers under Order 48 of the Civil Procedure Rules the Deputy Registrar of this court committed the Respondent/Applicant to civil jail for 60 days for failure to pay taxed costs in this appeal. The Applicant has now applied under Section 3A and 38B of the Civil Procedure Act for her release. The application is based on the ground that she has not refused or neglected to pay the taxed costs. She simply does not have the means to pay.
The Appellant/Respondent has opposed the application on the ground that it is misconceived and bad in law. There is no provision for such an application.
Having considered the application and counsel’s submissions on the matter, I agree with Mr. Jiwaji that this application is misconceived and bad in law. When there is an express provision for moving the court for relief the court cannot entertain an application under section 3A of the Civil Procedure Act. Order 48 Rule 5(2) clearly provides that anybody aggrieved by an order of the Deputy Registrar under that order should appeal to a judge in chambers. That is what the Applicant should have done in this case. In the circumstances this application is incompetent and the same is hereby struck out with costs.
DATED and delivered this 16th day of November 2004.
D.K. Maraga
Ag. JUDGE