[2004] KEHC 2323 (KLR)
The court found that sections 356 and 357 of the Criminal Procedure Code, which deal with bail applications by convicted persons pending appeal, were not applicable to the present application because there was neither a conviction nor an appeal. Instead, the court held that sections 362 and 364 of the Criminal...
Source-derived case information.
- Citation
- [2004] KEHC 2323 (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 Criminal Application / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- K Bauni
- Legal Topics
- Preliminary Objection, Judicial Review Procedure, Applicability of Cpc Sections
- 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
Wilfred Moriasi Ombui
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal 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 sections 356 and 357 of the Criminal Procedure Code, which deal with bail applications by convicted persons pending appeal, were not applicable to the present application because there was neither a conviction nor an appeal. Instead, the court held that sections 362 and 364 of the Criminal Procedure Code were the proper legal basis for the application, as they empower the High Court to review the proceedings of the lower court for legality, correctness, or propriety, particularly in relation to the issuance of a search warrant. Consequently, the preliminary objection raised by the respondent was dismissed, and the application was deemed properly before the court.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
MISCELLANEOUS CRIMINAL APPLICATION NO.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