Rupa Cotton Mills (Epz) Ltd v Senior Principal Magistrate’s Court, Machakos & Inspector General of Police Interested Parties George Lemein Ole Musei, Thomas Kilonzo Matheka & Ally Nasoor [2014] KEHC 7132 (KLR)

No. 200/2014

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL MISC APPLICATION NO. 19 OF 2014

RUPA COTTON MILLS (EPZ) LTD..................................................APPLICANT

VERSUS

1. THE SENIOR PRINCIPAL MAGISTRATE’S COURT, MACHAKOS

2. INSPECTOR GENERAL OF POLICE.......................................RESPONDENTS

AND

1. GEORGE LEMEIN OLE MUSEI

2. THOMAS KILONZO MATHEKA

3. ALLY NASOOR.............................................................INTERESTED PARTIES

RULING

In an Application dated 10th February, 2014 brought pursuant to the provisions of Order 53 of the Civil Procedure Rules,   the Applicant seeks orders as follows:-

That leave be granted to the Applicant to apply for orders of certiorarito quash the orders of the Senior Principal Magistrate of 6th February 2014 in Machakos CM Cr. C. No. 1449/2013.

That leave be granted to the Applicant to apply for orders of prohibitionagainst the Inspector General of Police and all officers under him from enforcing the orders of Senior Principal Magistrate of 6th February, 2014 in Machakosor in any way ordering the Applicant Company to release the subject cotton.

That the grant of leave do operate as a stay of the Machakos Senior Principal Magistrates courts order of 6th February, 2014 in CM Cr. C. No. 1449 of 2014 and/or any action by the police in seeking the release of the subject cotton bales.

It is premised on grounds that ;-

That the Applicant a Limited Liability Company operating a cotton mill designed for spinning ginned cotton and manufacture of finished cotton products did on 28th November, 2013 purchase cotton bales from the 1st and 2nd Interested Parties at a price of Kshs. 8,478,400/=.

That 1st and 2nd Interested Parties were subsequently charged in Machakos Senior Principal Magistrate Court case Number 1447 of 2013 for the offence of stealing the cotton.

That on 6th February, 2014 theHonourable Senior Principal Magistrate allowed withdrawal of the charges against the accused for no apparent reason and without jurisdiction ordered the release of the cotton to the 3rd Interested Party.

Thatthe release of the cotton would adversely affect the Applicant Company as enumerated in the supporting affidavit.  The applicant was not a party to the criminal proceedings and claims a lien on the cotton.

The application is supported by an affidavit deponed by Probobdh K. Shah the Managing  Director of the Applicant Company

The order the Applicant seeks to quash was granted by the Senior Principal Magistrate, Machakos on the 6th February, 2014 the application having been made today the11th February, 2014, it is within 6 months.  In the premises, leave should issue as sought.

I therefore grant prayers 2 and 3as prayed.  Further, prayer4 is granted until I order otherwise.

DATED, SIGNED and DELIVEREDat MACHAKOS this 11THday of FEBRUARY 2014

L.N. MUTENDE

JUDGE