Zablon Ogutu Siro v District Criminal Investigating Office Masaba South Sub-County, Director of Criminal Investigations, Attorney General & Equity Bank Limited [2019] KEHC 7354 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYAMIRA

PETITION NO. 5 OF 2018

IN THE MATTER OF ALLEGED CONTRAVENTION OF CONSTITUTIONALRIGHTS

UNDER ARTICLES 3, 10, 19, 20, 21, 22, 23, 29, 35 AND 49 OF THE CONSTITUTION

AND

IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OFRIGHTS

AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES 2012

BETWEEN

ZABLON OGUTU SIRO............................................................PETITIONER

=VRS=

1. DISTRICT CRIMINAL INVESTIGATING OFFICE

MASABA SOUTHSUB-COUNTY...................................1ST RESPONDENT

2. DIRECTOR OF CRIMINAL INVESTIGATIONS.....2ND RESPONDENT

3. HON. ATTORNEY GENERAL....................................3RD RESPONDENT

4. EQUITY BANK LIMITED...........................................4TH RESPONDENT

RULING

Before me is an application by the 4th respondent seeking to be struck out of these proceedings on the grounds that it has no interest in the matter, that it is wrongly enjoined in the proceedings and that it is in the interest of justice that its name be struck out.

In the affidavit in support of the application, the 4th respondent’s operations Manager deposes that the petitioner indeed had an account with the 4th respondent at its Keroka Branch to which his pension and gratuity were to be paid.  He deposes that the 4th respondent did not disclose any information concerning that account to third parties but that the petitioner himself contacted one Nyamweya to process his pension and that upon receiving a complaint by the petitioner, the 4th respondent investigated the matter and came to the conclusion that the lien on his account was mistakenly lodged and having resolved the issue the petitioner managed to access his funds.  It is further deposed that the 4th respondent had no part to play in the search at the petitioner’s home by the police and that in view of the foregoing the 4th respondent is wrongly enjoined and its name should be struck out.

The application is not opposed and counsel for the petitioner/respondent did not attend the hearing although there is a hearing notice in regard to this application which his firm caused to be served upon the Advocates for the other respondents.  Be that as it may, I have considered the application, the grounds thereof as well as the supporting affidavit and I am of the view that it would be premature to strike out the 4th respondent from the proceedings at this stage.  Whatever is raised in the affidavit ought to be in defence to the petition.  Accordingly, the application dated 30th November 2018 is dismissed.  Costs shall be in the cause.

Signed, dated and delivered in Nyamira this 23rd day of May 2019.

E. N. MAINA

JUDGE