[2017] KEHC 7464 (KLR)
The court found that since the dispute arises from the same facts and source, and the petitioner has already been granted stay orders against prosecution, it would be unfair and prejudicial to allow the interested parties to be prosecuted while the petitioner is protected. The court held that both parties should be...
Source-derived case information.
- Citation
- [2017] KEHC 7464 (KLR)
- Parties
- Petitioner: Shaibu Hamisi MtuwA; Respondent: The Director of Public Prosecution; Respondent: The Directorate of Criminal Investigations Department, Malindi; Interested Party: Joseph Munyoki Nzioka; Interested Party: Elizabeth R. Nzioka
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Petition 18 of 2016
- Procedural Posture
- Constitutional Petition / Ruling on Application for Conservatory Orders and Joinder of Interested Parties
- Outcome
- application allowed
- Judges
- SJ Chitembwe
- Legal Topics
- Conservatory Orders, Joinder of Parties, Right to Fair Trial, Prosecution Stay, Witchcraft Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shaibu Hamisi MtuwA
Petitioner
The Director of Public Prosecution
Respondent
The Directorate of Criminal Investigations Department, Malindi
Respondent
Joseph Munyoki Nzioka
Interested Party
Elizabeth R. Nzioka
Interested Party
Procedural Posture
Constitutional Petition / Ruling on Application for Conservatory Orders and Joinder of Interested Parties
Legal Issues
- 1 Whether the interested parties should be enjoined in the petition as interested parties.
- 2 Whether a conservatory order should issue restraining the police from arresting, detaining, charging or prosecuting the interested parties pending determination of the petition.
- 3 Whether it is fair to allow prosecution of the interested parties while the petitioner enjoys stay orders on related facts.
Ratio Decidendi
The court found that since the dispute arises from the same facts and source, and the petitioner has already been granted stay orders against prosecution, it would be unfair and prejudicial to allow the interested parties to be prosecuted while the petitioner is protected. The court held that both parties should be heard on an equal footing and that the interests of justice require the interested parties to be enjoined in the petition and granted similar conservatory protection. The application was therefore merited and allowed as prayed, with costs to follow the outcome of the petition.
Court Disposition
application allowed
Orders
- The application dated 2/9/2016 is granted as prayed.
- A conservatory order is issued restraining the Officer Commanding Taru Police Station or any other police officer acting under his authority from arresting, detaining, charging and/or prosecuting Joseph Munyoki Nzioka and Elizabeth R. Nzioka with charges arising from or incidental to the allegations of witchcraft in...
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
PETITION NO. 18 OF 2016
IN THE MATTER OF: THE ALLEGED CONTRAVENTION OF FUNDAMENTAL
RIGHTSAND FREEDOMSUNDER THE CONSTITUTION OF KENYA ARTICLES
1,10,22, 23,50,157 AND 259 OF THE CONSTITUTION OF KENYA, 2010.
BETWEEN
SHAIBU HAMISI MTUWA.....................................PETITIONER
-VERSUS-
THE DIRECTOR OF PUBLIC PROSECTUTION
THE DIRECTORATE OF CRIMINAL INVESTIGATIONS
DEPARTMENT, MALINDI................................RESPONDENTS
AND
JOSEPH MUNYOKI NZIOKA
ELIZABETH R. NZIOKA......................INTERESTED PARTIES
RULING
The application date 2/9/2016 seeks the following orders: -
THAT pending hearing and determination the petition, a conservatory order do issue restraining the Officer Commanding Taru Police Station or any other police officer acting under his authority from arresting, detaining, charging and/or prosecuting JOSEPH MUNYOKI NZIOKA and ELIZABETH R. NZIOKA,the Intended Interested Parties/Applicants herein with charges arising from and or incidental to the allegations of witch crafts in the Petition and Malindi Criminal Case No. 549/16.
THAT this Honorable Court be pleased to enjoin JOSEPH MUNYOKI NZIOKAand ELIZABETH R. NZIOKA as interested parties in the Petition.
The application is supported by the applicant’s affidavit sworn on the same date. The petitioners filed a notice of preliminary objection. Parties agreed to determine the application by way of written submissions.
The dispute herein starts from allegations of witchcraft. The petitioner was charged in Malindi Criminal Case number 549 of 2016 with the offence of threatening to kill through witchcraft. The interested party (applicant) was equally to be charged before the Mariakani Court with a related offence as a result of complaints made to the Taru Police Station by the petitioners, the applicant is now seeking to be enjoined as an interested party in the petition and also seek orders to stop his intended prosecution.
I have read the submissions by the respective advocates for each party. This Court granted stay orders against the prosecution of the petitioner. I do not wish to delve deep into the submissions by the counsels as they go into the merits of each parties case. Since the dispute involve the same facts and source, I do find that it is prudent to allow the application so that the two parties can be heard on their respective positions. The ideal situation would have been for the interested party to file his own petition and have them consolidated. It will be unfair to allow the interested party to be charged in court while the petitioner enjoys stay orders. The parties should approach the court on an equal footing.
I am satisfied that the application dated 2/9/2016 is merited and the same is hereby granted as prayed. Costs shall follow the outcome of the petition.
Dated, Signed and Delivered at Malindi this 21st day of February, 2017.
SAID J. CHITEMBWE
JUDGE