REPUBLIC OF KENYA IN THE HIGH COURT AT BUNGOMA Miscellaneous Application 104 of 2011 IN THE MATTER OF AN APPLICATION TO APPLY FOR LEAVE FOR JUDICAIAL REVIEW ORDERS CERTIORARI BY PATRICK WAFULA KABURU AND IN THE MATTER OF CHAPTER FOUR SECTION 22 (1) OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF PROCEEDINGS OF THE CHIEF MAGISTRATE’S COURT AT BUNGOMA IN BUNGOMA CM CRIMINAL CASE NO.1664 OF 2010 ON 20/06/2010 AND 20/07/2011 AND ANY ORDERS MADE THERE AFTER BETWEEN REPUBLIC........................................................................................................... APPLICANT ~VERSUS~ CHIEF MAGISTRATE BUNGOMA ................................................................RESPONDENT ATTORNEY GENERAL................................................................................RESPONDENT AND PATRICK WAFULA KABUR........................................................EXPARTE APPLICANT AND JAPHETHER WAMALWA KILUI.............................................1ST INTERESTED PARTY JACKSON WETOSI.................................................................2ND INTERESTED PARTY
page 1 of 2
ANDREW MOITA SIMIYU.......................................................3RD INTERESTED PARTY PETER WAFULA KITUYI.........................................................4TH INTERESTED PARTY ROSE NANG’UNDA.................................................................5TH INTERESTED PARTY WILLIAM WAFUBWA KHAEMBA.........................................6TH INTERESTED PARTY SOLOMON WEPUKHULU......................................................7TH INTERESTED PARTY JOHN WAFULA KHISA..........................................................8TH INTERESTED PARTY RULING There is an application for leave to bring into this court and quash the proceedings in Bungoma Chief Magistrates Criminal Case no.1664 of 2010 (formerly Kimilili SRM Cr. Case no.1139 of 2008). In the proceedings the accused Moses Khaoya Kaburu was convicted on his own plea of guilty and sentenced to four years in jail. The charges in question were burglary and stealing contrary to section 304 (2) and 279 (b) of the Penal Code and the complainant was the ex-parte Applicant herein. The complainant sought to be given back the items that had been stolen from his house. The application was before the court at Kimilili. For some reason, he successfully asked the court at Kimilili to disqualify itself. It referred the matter to the Chief Magistrate’s Court at Bungoma. His complaint is that the court at Bungoma has kept adjourning the application without making a decision on it. The eight Applicants seek under Order 53 rule 6 of the Civil Procedure Rules to be joined in the chamber application for leave because what was stolen included a bag containing green cards for their parcels of land. Under rule 6 one can be allowed to appear and oppose the substantive motion after it is filed and has come for hearing. Order 53 does not provide for a party being joined at this stage of the chamber application for leave. The application is therefore premature and is declined. Each party will bear his own costs. Dated, signed and delivered at Bungoma this 9th day of July 2012. A. O. MUCHELULE JUDGE
page 2 of 2