John Muyodi v Peter Lunani Ongoma, Celtel Alias Zain Kenya Ltd. & Safaricom Limited [2014] KEHC 300 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. NO. 45 OF 2014 (FORMERLY HCC. 42 OF 2010)

JOHN  MUYODI ……………………....….........................………………..PLAINTIFF

VERSUS

1.  PETER  LUNANI  ONGOMA          )

2.  CELTEL Alias ZAIN KENYA LTD. )…..……...............................… DEFENDANTS

3.  SAFARICOM LIMITED.                   )

R U L I N G.

JOHN FRANCIS MUYODI,  hereinafter referred to as  the Applicant, filed  the application dated 10th March, 2014 praying for the court to set aside its order of 5th March, 2014  that Applicant  deposits with the court the whole decretal sum as a precondition to his being released from civil jail.  The order  was issued by the court following the Applicant’s  application under certificate of urgency,  dated 5th March, 2014 in which  he was challenging the Deputy Registrar’s  committal order of 3rd march, 2014.

The  application is opposed by Peter Lunani Ongoma, hereinafter referred to as the Respondent  through the grounds of opposition dated 19th March, 2014 and replying  affidavit  by  Respondent’s counsel,  sworn on 2nd April, 2014. Both the Applicant and Respondent filed written submissions.

The application is said to be brought ‘’under Section 19(3) (b) of the Environment and Land  Court Act, 2011 and section 3A and 42 (i)  (iv) and (2)  of the Civil Procedure Act.’’.  It is important to observe from the start that the whole of sub section 3 of section 19 of the Environment and Land  Court Act  was deleted under L.N. No.12 of 2012 and therefore  is non-existent and cannot be  the basis of this application.  This  does not in any way, affect the standing of the Applicant’s  application as the court is obligated to  consider and  rule on the substance of  the application without  undue regard to technicalities .

I have carefully considered the contents of the  submissions by both parties, the supporting and replying affidavits filed by the Applicant and for the Respondent and find as follows:

That indeed  the Applicant was taken before the Deputy Registrar on 3rd March, 2014 following the execution of warrant of arrest issued on 9th January, 2014 for none payment of Kshs.122,376/=,  being taxed costs.

That the Respondent applied for the Applicant to be committed to civil jail on their undertaking to pay his subsistence allowance.

That the Deputy Registrar  allowed the Respondent’s application.

The Respondent do not appear to have paid the subsistence allowance and the Applicant was released. The circumstances of the Applicant’s  release  are not clear.

That  two  days after the order of 3rd March,  2014, the Applicant filed  the Notice of Motion under certificate of urgency dated 5th March, 2014 challenging  the Deputy Registrar’s  order committing him to civil jail.  The order  the Applicant is now  challenging  through his application dated 10th March, 2014  was then issued.

That the court had in addition to the order Applicant is challenging of  5th March, 2014 also directed  that the application  dated 5th March, 2014  be set down for hearing and this has not been done.

That the order the Applicant is challenging  was only meant to allow him to be free from civil jail as  he prosecutes his application  dated 5th March, 2014. That  order being exparte was to be either confirmed, varied or vacated following  the inter partes hearing  of the application dated 5th March, 2014 and there was no need  for  the Applicant to file an independent  application dated 10th March, 2014 to challenge  it.

For reasons shown above,  the court finds that the Applicant’s  application dated 10th March, 2014 is unnecessary, frivolous and misplaced and the same is dismissed  with costs.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED  ON  29TH DAY OF MAY 2014

IN THE PRESENCE OF;

JUDGE.