Saidi Ali Mwaraoni v Binti Sultan Ali Mwachangu [2004] KEHC 1049 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL APPEAL NO. 75 OF 1997

SAIDI ALI MWARAONI ………………………………………APPELLANT Versus BINTI SULTAN ALI MWACHANGU ……………………. RESPONDENT

R U L I N G

Exercising her powers under Order 48 of the Civil Procedure Rules the Deputy Registrar of this court committed the Respondent/Applicant to civil jail for 60 days for failure to pay taxed costs in this appeal. The Applicant has now applied under Section 3A and 38B of the Civil Procedure Act for her release. The application is based on the ground that she has not refused or neglected to pay the taxed costs. She simply does not have the means to pay.

The Appellant/Respondent has opposed the application on the ground that it is misconceived and bad in law. There is no provision for such an application.

Having considered the application and counsel’s submissions on the matter, I agree with Mr. Jiwaji that this application is misconceived and bad in law. When there is an express provision for moving the court for relief the court cannot entertain an application under section 3A of the Civil Procedure Act. Order 48 Rule 5(2) clearly provides that anybody aggrieved by an order of the Deputy Registrar under that order should appeal to a judge in chambers. That is what the Applicant should have done in this case. In the circumstances this application is incompetent and the same is hereby struck out with costs.

DATED and delivered this 16th day of November 2004.

D.K. Maraga

Ag. JUDGE