[2021] KEHC 1527 (KLR)
The court found that the applicants failed to demonstrate any specific hardship or prejudice suffered as a result of the ongoing criminal proceedings or the COVID-19 restrictions, as these restrictions applied to all inmates and did not uniquely disadvantage the applicants. The court held that the threshold for...
Source-derived case information.
- Citation
- [2021] KEHC 1527 (KLR)
- Parties
- Applicant: Tasleem Butt; Applicant: Imran Chaudry; Respondent: Office of the Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E061 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay and Transfer of Criminal Proceedings
- Outcome
- application dismissed
- Legal Topics
- Stay of Proceedings, Transfer of Criminal Cases, Obtaining by False Pretence, Conspiracy to Commit Felony
- 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
Tasleem Butt
Applicant
Imran Chaudry
Applicant
Office of the Director of Public Prosecution
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay and Transfer of Criminal Proceedings
Legal Issues
- 1 Whether the applicants are entitled to a stay of proceedings in Mombasa CMC CR. Case No. E192 of 2021 pending determination of their application.
- 2 Whether the trial should be transferred to another court of competent geographical jurisdiction and commence de novo.
- 3 Whether the applicants have demonstrated sufficient hardship or prejudice to warrant the orders sought.
Ratio Decidendi
The court found that the applicants failed to demonstrate any specific hardship or prejudice suffered as a result of the ongoing criminal proceedings or the COVID-19 restrictions, as these restrictions applied to all inmates and did not uniquely disadvantage the applicants. The court held that the threshold for granting a stay of proceedings or transferring the case to another court had not been met. Consequently, the application was dismissed and the criminal trial was ordered to proceed in the original court.
Court Disposition
application dismissed
Orders
- The application for stay and transfer of proceedings is dismissed.
- Mombasa CMC CR. Case No. E192 of 2021 to proceed to trial.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL DIVISION
MISC. CRIMINAL APPLICATION NO. E061 OF 2021
BETWEEN
1. TASLEEM BUTT
2. IMRAN CHAUDRY....................................................................................APPLICANT
-VS-
OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTION............RESPONDENT
R U L I N G
1. Tasleem Butt and Imran Chaudry the applicants herein together with Mehtab Ahmedali Hussein are jointly charged in Mombasa CMC CR. Case No. E192 of 2021 with the offence of obtaining money by false pretence contrary to Section 313 of the penal code.
2. Particulars are that the accused persons on diverse dates between the 6th and 30th day of December 2020, at Kamiti Prison in Ruiru sub-county within Kiambu County, jointly with others not before court, obtained Kshs.934,900/= from Rafil Natarajn by falsely pretending to be in a position to help clear containers at the port of Mombasa a fact they knew to be false or untrue.
3. In Count II, the Applicants and their co-accused were charged with the offence of conspiracy to commit a felony contrary to Section 393 of the penal code.
4. By a notice of motion dated 30th day of June 2021 the applicants pursuit to Articles 50(2) (E) & 165(3) of the constitution of Kenya 2010, Order 51 Rule1 of the Civil Procedure Rules Section 81 and 380 of the Criminal Procedure Code and Section 3A of the Civil Procedure Act sought that proceedings in Mombasa CMCM CR. Case No. E192 of 2021 be stayed pending hearing and determination of the application herein.
5. They also sought that the trial court be directed to supply them with certified typed proceedings within 30 days before interpartes hearing of the application.
6. They sought that an order do issue directing that the proceedings in Mombasa CMC CR. No. E192 of 2021 to start denovobefore another court of competent geographical jurisdiction.
7. The application was supported by the affidavit of Tasleem Butt sworn on 30th day of June 2021 and grounds on face of the application. By a Replying Affidavit sworn on 15th July 2021 P.C. Wangeci Mugwimi opposed the application.
8. Currently the Applicants are all in custody and being brought to court by the state and they have not shown any hardship being suffered as their visitors are not yet being allowed into prison to visit inmate due to COVID-19 pandemic until vaccination is attained 100%.
9. I do find that the application has no merit and the same is dismissed. Mombasa CMC CR. Case No. E192 of 2021 to proceed to trial. Mention on 8/11/2021 in Court No. 5.
DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 28TH DAY OF OCTOBER, 2021
HON. LADY JUSTICE A. ONG’INJO
JUDGE
In the presence of:
Court Assistant - Turuki
Ms. Nabwana Advocate for Applicants – No appearance
Mr. Mulamula Advocate for Respondents – Present in person
Hon. Lady Justice A. Ong’injo
Judge