[2018] KEHC 4450 (KLR)
The court found that the application raised urgent constitutional issues warranting ex parte certification. However, since the applicant did not seek any temporary orders but only substantive mandatory orders, the court held that such substantive relief could only be granted after an interpartes hearing. The court...
Source-derived case information.
- Citation
- [2018] KEHC 4450 (KLR)
- Parties
- Applicant: Timothy Maunda Mbiti; Respondent: Winston Kiambi Murungi, The Deputy County Commissioner Butula Sub-County; Respondent: Paul Rop, The Deputy County Commissioner Samia/Funyula Sub-County; Respondent: James Kareri Thuo, The Assistant County Commissioner Funyula Division; Respondent: The DCIO Butula Police Division; Respondent: The OCS Bumala Police Station; Respondent: The OCS Funyula Police Station; Respondent: The Attorney General; Respondent: The Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 20 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Certification of Urgency and Directions for Interpartes Hearing
- Outcome
- Application certified as urgent; directions issued for interpartes hearing.
- Judges
- RE Aburili
- Legal Topics
- Constitutional Rights Enforcement, Urgent Applications, Interpartes Hearing, Criminal Procedure, Fundamental Freedoms
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Timothy Maunda Mbiti
Applicant
Winston Kiambi Murungi, The Deputy County Commissioner Butula Sub-County
Respondent
Paul Rop, The Deputy County Commissioner Samia/Funyula Sub-County
Respondent
James Kareri Thuo, The Assistant County Commissioner Funyula Division
Respondent
The DCIO Butula Police Division
Respondent
The OCS Bumala Police Station
Respondent
The OCS Funyula Police Station
Respondent
The Attorney General
Respondent
The Director of Public Prosecutions
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Certification of Urgency and Directions for Interpartes Hearing
Legal Issues
- 1 Whether the application raises urgent constitutional issues requiring ex parte consideration.
- 2 Whether the applicant is entitled to interim or substantive orders at this stage.
- 3 Whether the matter should be certified as urgent and set for interpartes hearing.
Ratio Decidendi
The court found that the application raised urgent constitutional issues warranting ex parte certification. However, since the applicant did not seek any temporary orders but only substantive mandatory orders, the court held that such substantive relief could only be granted after an interpartes hearing. The court therefore certified the matter as urgent, directed that it be heard during the recess, and ordered the applicant to serve the respondents for interpartes consideration before the regional duty judge.
Court Disposition
Application certified as urgent; directions issued for interpartes hearing.
Orders
- The application is certified as urgent and to be considered during the recess.
- Applicant to serve the respondents with the application.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
MISC. CRIMINAL APPLICATION NO. 20 OF 2018
IN THE MATTER OF AN APPLICATION UNDER ARTICLE 165 (3) 2, 10, 19, 20 (1) (2) (3) (4), 21 AND 22 OF THE CONSTITUTION OF KENYA (2010)
AND
IN THE MATTER OF THE PROTECTION OF THE CONSTITUTIONAL RIGHTS ENSHRINED IN CHAPTER HOUR OF THE CONSTITUTION IN SO FAR AS THE PETITIONER’S CONSTITUTIONAL RIGHTS UNDER ARTICLES 27, 28, 29, 31, 40 OF THE CONSTITUTION OF KENYA (2010)
AND
IN THE MATTER OF NATIONAL GOVERNMENT CO-ORDINATION ACT
(CHAPTER 183 LAWS OF KENYA), THE CHIEFS’ ACT (CHAPTER 128 LAWS OF KENYA), NATIONAL POLICE SERVICE ACT
(ACT NO 11A OF 2011)
AND
IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTIION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013)
AND
IN THE MATTER OF SECTIONS 118, 119, 120 AND 121 OF THE CRIMINAL PROCEDURE ACT (CHAMPTER 75 LAWS OF KENYA)
IN THE MATTER OF AN APPLICATION
BETWEEN
TIMOTHY MAUNDA MBITI ......................................................................APPLICANT
VERSUS
WINSTON KIAMBI MURUNGI,
THE DEPUTY COUNTY COMMISSIONER
BUTULA SUB-COUNTY ................................................................. 1ST RESPONDENT
PAUL ROP,
THE DEPUTY COUNTY COMMISSIONER
SAMIA/FUNYULA SUB-COUNTY .............................................. 2ND RESPONDENT
JAMES KARERI THUO,
THE ASSISTANT COUNT COMMISSIONER
FUNYULA DIVISION .................................................................... 3RD RESPONDENT
THE DCIO BUTULA POLICE DIVISION .................................. 4TH RESPONDENT
THE OCS BUMALA POLICE STATION .................................... 5TH RESPONDENT
THE OCS FUNYULA POLICE STATION .................................. 6TH RESPONDENT
THE ATTORNEY GENERAL ...................................................... 7TH RESPONDENT
THE DIRECTOR OF PUBLIC PROSECUTIONS .................... 8TH RESPONDENT
RULING
I have considered the application by the applicant under certificate of urgency. I am satisfied that the matter is urgent and ought to be considered expeditiously and exparte in the first instance I certify the matter as urgent and direct that it be considered during the Recess.
On the prayers in the Chamber Summons, I note that the applicant has not sought any temporary orders – All the prayers seek for substantive mandatory orders which can only mode at the interpartes stage.
Accordingly, I direct the Applicant to serve the Respondents with the application for interpartes consideration before Hon. Riech, J., in Bungoma High Court, being the Regional duty Judge on 4. 9.2018.
Orders Accordingly,
Dated, Signed And Delivered at Siaya This 31st Day of August, 2018.
R. E. ABURILI
JUDGE