[2015] KEHC 8003 (KLR)
The court declined to grant a stay of plea taking and further proceedings in Criminal Case No. 2428 of 2015, holding that such an order would amount to interference with the constitutional mandate of the Director of Public Prosecution. The court emphasized that Article 157 of the Constitution vests prosecutorial...
Source-derived case information.
- Citation
- [2015] KEHC 8003 (KLR)
- Parties
- Applicant: Ummulkahays Sadri Abdulla; Applicant: Khadija Abubakar; Applicant: Maryam Said Aboud; Applicant: Halima Adan; Respondent: O.C.S Central Police Station; Respondent: Anti Terrorism Police Unit Mombasa; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 112 of 2015
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Interlocutory Application for Stay and Referral to Bench
- Outcome
- Application for stay of plea taking and further proceedings dismissed. Directions issued for applicants to take plea and subsequently address the court on substantive legal issues.
- Legal Topics
- Stay of Proceedings, Plea Taking, Supervisory Jurisdiction, Powers of Director of Public Prosecutions
- 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
Ummulkahays Sadri Abdulla
Applicant
Khadija Abubakar
Applicant
Maryam Said Aboud
Applicant
Halima Adan
Applicant
O.C.S Central Police Station
Respondent
Anti Terrorism Police Unit Mombasa
Respondent
Director of Public Prosecution
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Interlocutory Application for Stay and Referral to Bench
Legal Issues
- 1 Whether the High Court should stay plea taking and further proceedings in Criminal Case No. 2428 of 2015 pending determination of the application.
- 2 Whether the matter raises substantial points of law and public interest warranting referral to the Chief Justice for constitution of a bench of not less than three judges.
- 3 Whether granting a stay would amount to interference with the constitutional powers of the Director of Public Prosecution.
Ratio Decidendi
The court declined to grant a stay of plea taking and further proceedings in Criminal Case No. 2428 of 2015, holding that such an order would amount to interference with the constitutional mandate of the Director of Public Prosecution. The court emphasized that Article 157 of the Constitution vests prosecutorial powers exclusively in the Director of Public Prosecution, who is not subject to direction or control by any person or authority in the exercise of those powers. The High Court acknowledged its supervisory jurisdiction but found that intervening at the stage of plea taking would be premature and would encroach upon the independence of the prosecution. The court directed the...
Court Disposition
Application for stay of plea taking and further proceedings dismissed. Directions issued for applicants to take plea and subsequently address the court on substantive legal issues.
Orders
- The application for stay of plea taking and further proceedings in Criminal Case No. 2428 of 2015 is declined.
- Applicants are directed to proceed to take plea in the said case.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COUT OF KENYA AT MOMBASA
MISCELLENOUS CRIMINAL APPLICATION NO. 112 OF 2015
UMMULKAHAYS SADRI ABDULLA
KHADIJA ABUBAKAR
MARYAM SAID ABOUD
HALIMA ADAN.......................................................APPLICANTS
VERSUS
O.C.S CENTRAL POLICE STATION
ANTI TERRORISM POLICE UNIT MOMBASA
DIRECTOR OF PUBLIC PROSECUTION........................RESPONDENTS
R U L I N G
1 The matter before me is an application by way of Notice of Motion under certificate of urgency dated 10th December 2015. In the application the applicants are seeking:
1 the matter to be certified urgent and heard exparte in the first instance.
2. the Honorable court be pleased to certify the matter as facing a substantial point of law and issue of public interest and refer the same to the Honourable Chief Justice for the constitution of the said of bench of uneven number of judges being not less than three for the hearing and determination of the application filed herewith.
3. the honorable court be pleased to order stay of taking plea or further proceedings and orders in criminal case No 2428 of 2015, Republic versus UMMULKHEYR SADRI ABDULLA &3 OTHERS pending hearing and determination of this application inter parte.
2 The application is premised on the grounds on the face of it and the affidavits of the applicants herein.
On 10th December 2015 when the Application came before me, I certified the same as urgent but directed that the applicant serves the Respondents. This has been confirmed as having been done.
The parties are now before me for directions.
3 Having listened to the learned counsel for the applicant, Mr Mwadzogo and the response by Mr Muteti, learned counsel for the state, I have also read through the notice of motion application by the applicants and their supporting affidavits.
While I appreciate the high court’s jurisdiction and supervisory powers as provided for under Articles 165 (3) (4) (6) and (7) of the Constitution a reading of the provisions relating to the powers and duties of the High court and the Director of Public Prosecution with regard to whether or not to stay plea taking and any other proceedings in criminal case No 2429 of 2015. Republic versus OMMULKHAYR SADRI ABDULLA & 3 OTHERS is necessary.
4 under Article 157 (6) (a) of the Constitution it is provided that:
“ The Director of Public Prosecution shall exercise state powers of prosecution and may”
institute and order the criminal proceedings against any person before any court(other than a court martial) in respect of any offence alleged to have been committed”
Under sub Article (10) it is further provided:
“The Director of Public prosecution shall not require the consent of any person or authority for the commencement of criminal proceedings, and in the exercising of his or her powers or functions, shall not be under the direction or control of person or authority”
In view of these provisions I decline to grant the order to stay plea taking and any other proceedings in the aforementioned case. For, to do this will amount to supervising and or interfering with the work of other agencies
5 I wish to direct the applicants to proceed to take plea in the said case, then come and address this court on the substantive points of law and issuing of public interest that would require that case be referred to the Chief Justice for the constitution of a bench ofuneven number of judges for hearing and determination of the petition filed herewith.
Ruling delivered, dated and signed this 14th day of December 2015
D. O. CHEPKWONY
JUDGE
In the presence of
Mr Muteti, Mr Wangila and Mr Wamotsa for the state
Mr Mwadzoga for the applicants
C/Assistant- Mr Kiarie