Onguru v Director of Public Prosecutions & another; Oloo & another (Interested Parties) [2023] KEHC 24907 (KLR)

Onguru v Director of Public Prosecutions & another; Oloo & another (Interested Parties) (Petition E003 of 2022) [2023] KEHC 24907 (KLR) (3 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24907 (KLR)

Republic of Kenya

In the High Court at Kitale

Petition E003 of 2022

AC Mrima, J

November 3, 2023

Between

William Ochanda Onguru

Petitioner

and

The Director Of Public Prosecutions

1st Respondent

The Inspector General Of Police

2nd Respondent

and

Elijah Amollo Oloo

Interested Party

Charles Asikowa Okolo

Interested Party

Ruling

1. This Court has cautiously considered the Notice of Motion dated 02/11/2023 alongside the submissions by counsel. Enquiries on the authenticity of the annexures in the Petitioners’ Supporting Affidavit has been made. The copies of the documents annexed are indeed genuine and true copies.

2. The position that previous proceedings before the Taxing Officer were conducted virtually is mutually admitted. However, there is no evidence of any notice of departure.

3. The right to a fair hearing is a cardinal constitutional right. It is provided for in Article 50(1) as under:-“Every person has the right to have any dispute that can beresolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body”.

4. The right to fair hearing is further ring fenced under Article 25(c) of the Constitution as one of the rights that cannot be limited in any manner whatsoever.

5. The instant application centers on whether the petitioner was accorded a fair hearing in the hearing of the Notice To Show Cause.

6. The totality of the events as deposed and submitted on in this matter complied with the state of the record, affirms the position that, in all fairness, the petitioner was not accorded a fair hearing in respect of the Notice To Show Cause that had been taken against him.

7. The Notice To Show Cause had the potential of curtailing the plaintiff’s freedom and liberty. As such, care ought to have been take not ensure that the plaintiff was awarded an opportunity to be heard. Surprisingly, even after the Court Administrator engaging counsel for the petitioner and promising to send out the court’s link that did not happen. how else would the petitioner been expected to attend the proceedings which he had all along attended virtually in the absence of the link before the Hon. Deputy Registrar?

8. Without the need to consider the rest of the issues raised, which are likely to be subject of consideration herein, the Court opts to end this matter at this point in time more so since no party will be prejudiced or at all.

9. As such, the following final orders do here by issue:-a.The proceedings undertaken by the Hon. Deputy Registrar in this matter on 01/11/2023 are hereby set aside.b.The Warrant of Arrest issued against the petitioner herein by the Hon. Deputy Registrar on 01/11/2023 is here by set aside and vacated.c.The matter shall be fixed before the Hon. Deputy Registrar for directions on 15/11/2023. d.The proceedings before the Hon. Deputy Registrar shall be virtual unless preceded by a duly served notice.e.There shall be no order as to costs.Orders accordingly.

DATED, DELIVERED AND SIGNED AT KITALE THIS 3RD DAY OF NOVEMBER, 2023. HON. JUSTICE A.C. MRIMAJUDGE