Alphonce Peter Manyele v Fahimi Ahmed Sheikh, Jibril Ahmed Sheikh, O.C.S Diani Police Station, D.C.I.O Diani Police Station, Inspector General of Police & Attorney General [2018] KEHC 3564 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

MISCELLENOUS CRIMINAL APPLICAINT NO 194 OF 2017

ALPHONCE PETER MANYELE...................................APPLICANT

VERSUS

FAHIMI AHMED SHEIKH

JIBRIL AHMED SHEIKH

THE O.C.S DIANI POLICE STATION....................RESPONDENTS

THE D.C.I.O DIANI POLICE STATION

THE INSPECTOR GENERAL OF POLICE

THE HON. ATTORNEY GENERAL

RULING

1. Vide a Notice of Motion application dated 11th October, 2017, the Applicant, ALPHONCE PETER MANYELE sought for the following orders;

(a) the application  to be certified as urgent and service    to be dispensed with the  first instance;

(b) the Honourable court be pleased to stay and/or  bar  any criminal proceedings against the applicant  in   relation to the  complaints made by 1st and 2nd Respondents  pending  the hearing and determination  of this application;

(c) the Honourable court  be pleased to order the 1st, 2nd  ,3d and  4th Respondents  jointly and severally, to  release the applicants  original log book for  motor  vehicle registration  No KBK 139 W;

(d) this Honourable court be pleased to order the  3rd and 4th respondents to  release the sum of Ksh 50,0000/= held on  account  of alleged charges to be brought against the applicant at Kwale Law courts since 2017;

(e) the honourable court be pleased to order the Respondents jointly and severally, to cease harassing  the Applicant  herein;

(f) the Respondents  be ordered to pay  general damages  for malicious prosecution.

2.  The application is premised on the grounds on the face of the application and supporting affidavit of ALPHONCE PETER MANYELE.

3.  The application was certified urgent, Applicant ordered to serve the respondents and for a hearing date to be fixed in the registry on priority  basis. The hearing date of the application  was fixed for 23. 10. 2017.

4.  And on  16. 10. 2017, the applicant filed  another  notice of motion application together with supporting affidavit  annexure marked “APM-5” under certificate of  urgency seeking for warrant of arrest  issued by Kwale Law courts lifted and the said proceedings  in Cr case No. 713 of 2017 stayed.

5.  The application is premised on the grounds on its face and supporting affidavit of the Applicant.

6. The application was also certified as urgent and prayer 1 and 2 of the application granted. The hearing was fixed for 23rd October, 2017.

7.  On 23. 10. 2017, when the application  came up for  hearing,  counsel for the applicant, Ms Mukoya  indicated  that they had not served the 1st and 2nd Respondents with the same since they had not been able to  trace them. She also stated that they had also not been served with responses from 3rd to 6th Respondents although she had  seen a replying  affidavit by them.

8.  M/s Ocholla, counsel for the state confirmed that they had been served with the application  dated 11th .10. 2017 and that they had filed a  replying affidavit and grounds of opposition on 19. 10. 2017, which they were yet to serve upon the Applicant, 1st and 2nd  Respondents . She under took to serve them with the same before close of business that day. She further indicated to court that they had not been served with the application dated 16. 10. 2017, to which Ms. Mukoya, counsel for the Applicant responded by saying that they had served 3rd and 6th Respondents and  there was an  affidavit to confirm the same.

9.  The court proceeded to give directions to the parties to serve each other with their various documents and fixed the case for mention to confirm this before  fixing a hearing date.

The  matter came up for  mention  four times to confirm service  by parties upon each other and on 20. 3.2018, the  applications were  fixed for  hearing for 21st May, 2018.

10.  Today, the 21st May, 2018 the applications came up for hearing, the same having been fixed in the presence of counsel for the Applicant and  the state, who represents 3rd to  6th Respondents.

11.   However, neither  the applicant and or their counsel attended court for the hearing. They also did not sent an explanation or representation to explain their absence. The 1st and 2nd Applicants were also absent without any  explanation  or representation.

12. In the circumstance, there being no appearance or explanation by the applicant, 1st and 2nd Respondents and  or their counsel, the application  dated 11. 10. 2017 and 16. 10. 2017 be and  are hereby dismissed respectively.

Costs to be in the cause.

Ruling delivered, signed and dated this 21st day of May, 2018.

LADY JUSTICE D. O. CHEPKWONY

In the  presence of;

M/s Ocholla, counsel for  3rd to  6th Respondents

No appearance by counsel for Applicant

No appearance for  counsel for  the 2nd an 3rd Respondents

No appearance by  Applicant , 1st and 2nd Respondents

C/clerk- Beja