[2004] KEHC 178 (KLR)
The court found that the application was not for bail pending appeal and thus sections 356 and 357 of the Criminal Procedure Code were inapplicable. Instead, the court held that sections 362 and 364 of the Criminal Procedure Code were the proper legal basis, as they empower the High Court to review lower court...
Source-derived case information.
- Citation
- [2004] KEHC 178 (KLR)
- Parties
- Applicant: Wilfred Moriasi Ombui; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 58 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Legal Topics
- Preliminary Objection, Judicial Review Procedure, Applicability of Cpc Sections
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilfred Moriasi Ombui
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the application was brought under the correct provisions of the Criminal Procedure Code.
- 2 Whether sections 356 and 357 of the Criminal Procedure Code apply to the present application.
- 3 Whether sections 362 and 364 of the Criminal Procedure Code are the proper legal basis for the application.
Ratio Decidendi
The court found that the application was not for bail pending appeal and thus sections 356 and 357 of the Criminal Procedure Code were inapplicable. Instead, the court held that sections 362 and 364 of the Criminal Procedure Code were the proper legal basis, as they empower the High Court to review lower court proceedings for legality and propriety. Since the applicant sought review of proceedings culminating in the issuance of a search warrant, the application was properly before the court under these sections. The preliminary objection was therefore dismissed.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA OF KISII
Misc Crim Appli 58 of 2004
WILFRED MORIASI OMBUI …………………………….......……………. APPLICANT
VERSUS
REPUBLIC ……………………………………………………………. RESPONDENT
RULING:
Mr. Kemo for Respondent raised a preliminary objection and stated that the application is brought under the wrong provisions of the law and that the applicant should have applied for judicial review.
I have considered the submissions and objection thereto. I concur that section 356 and 357 of the C.P.C. are not applicable in this application. Those two sections deal with application for bail by a convicted person pending appeal. That is not the case in the instant application. There is no application for bail and court has not been told of any or intended appeal. These two sections are not applicable.
However s.362 and 364 of CPC are proper sections. S.362 provides for the High Court calling for records of the lower court to satisfy itself of the legality, correctness or propriety of any finding, sentence or order recorded or passed. Court has been told that there were proceedings in the lower court, which culminated in the court issuing a warrant of search. Those are the proceedings the applicant may want the court to look at s.364 CPC provides for actions which the High Court can take if satisfied that the proceedings, sentence or order were not proper or illegal. I therefore find that the application is proper.
In the circumstances the preliminary objection is dismissed.
Dated on 30th July 2004.
KABURU BAUNI
JUDGE
30/7/2004