- The Petitioner submitted a Petition dated 4th April, 2023 against the Respondents, who contested the orders and filed a Replying Affidavit sworn on 6th December, 2023.
- The genesis of the Petition is warrants of arrest that were issued against the Petitioner in Chief Magistrates’ Court Milimani Commercial Civil Suit No. 2869 of 2020- Flavian Busieka (Minor suing through next friend and mother- Everlyne Ayuma Isindu) (2nd Respondent in the Petition) Versus Xplico Insurance Company Limited.
- The 1st Respondent represented the 2nd Respondent in that lower court case. The Chief Magistrate was enjoined as Interested Party.
- The Petitioner was brought to the proceedings through a Notice to Show Cause initiated by the Respondents. A warrant for arrest was issued against the Petitioner in his capacity as the Acting Principal Officer of Xplico Insurance Company. Feeling aggrieved, the Petitioner presented the Petition seeking the following orders;
1. THAT a permanent Order of injunction/Inhibition be and is hereby issued against the Respondents, their servants, agents and /or anybody acting on their behalf effecting warrants of arrest in Milimani Commercial Court Civil Suit NO. 2869 of 2020 on the Applicant
2. A Declaration do issue declaring that the warrants of arrest in Milimani Commercial Court Civil Suit NO. 2869 of 2020 a threat Petitioners Constitutional Rights contrary to Article 25 of the Constitution contrary to Article 28 of the Constitution.
3. A Declaration do issue declaring that the 1st Respondent and the Interested Party violated the Petitioner’s Constitutional Rights by attempting to arrest the Petitioner, without any legal justification contrary to Article 28 of the Constitution.
4. A Declaration do issue declaring that the 1st Respondent and the Interested Party violated the Petitioner’s Constitutional Rights by attempting to arrest the Petitioner, without any legal justification contrary to Article 29 of the Constitution
5. A Declaration do issue declaring that the 1st Respondent and the Interested Party violated the Petitioner’s Constitutional Rights by issuing warrants of arrest of the Petitioner Milimani Commercial Court Civil Suit NO. 2869 of 2020, without any legal justification contrary to Article 49 of the Constitution.
6. A Declaration do issue declaring that the 1st Respondent and the Interested Party violated the Petitioner’s Constitutional Rights by issuing warrants of arrest of the Petitioner Milimani Commercial Court Civil Suit NO. 2869 of 2020, without any legal justification contrary to Article 50 of the Constitution
7. A Declaration do issue declaring that the 1st Respondent and the Interested Party violated the Petitioners’ Constitutional Rights and caused the Petitioner great psychological pain and trauma and suffering
8. That this Honourable Court do make, issue and give such further, other and consequential orders, writs and directions as it may consider appropriate.
9. The costs of this Petition be provided.
5. The Petitioner’s primary argument is that the warrants were issued against him when he is neither a director, shareholder, nor an authorized agent of Xplico Insurance Limited, and he therefore bears no corporate liability on behalf of Xplico. He contends that the warrants were issued in a procedurally illegal manner, were mischievous, and constituted a coercive act with unethical intentions.
6. The Petitioner further contended that unless the sought declarations are granted, he and other employees are under imminent danger of arbitral arrests and detention.
7. The 1st Respondent asserted that arrest warrants were issued against the Petitioner after he failed to attend the Notice to Show Cause (NTSC) regarding why execution should not proceed, which had been duly served upon him. An affidavit of service was attached to the affidavit. The 1st Respondent maintained that the Petitioner’s rights had not been infringed and that the orders sought are superfluous.
8. I have reviewed the proceedings before the lower court. A monetary decree was issued against Xplico Insurance Company Limited. The warrant of arrest under reference was issued on 9th March 2020. The proceedings show that the 1st Respondent indicated that the NTSC was duly served upon the Petitioner as the Principal Officer, and his name is duly indicated.
9. The record indicates that the warrants were lifted following an application dated 4th April 2023, filed by the Petitioner, which was allowed as prayed. The Respondents also attached a notice of withdrawal of the NTSC application, dated 13th April, 2023, one day before the Petitioner’s application to set aside the warrants being allowed.
10. From the record, the warrants were already set aside. There was no evidence of an attempt to arrest the Petitioner, and there is no evidence to support that the Petitioner's Constitutional rights were infringed.
11. The Petitioner from the Petition and the pleadings in the lower court file was aware of the proceedings before the lower court and the NTSC was duly served. His name was not added to the warrants at the time of extraction, the handwritten proceedings show that his name was duly given as having been served with the NTSC. When court proceedings or processes are initiated, a party is expected to attend court, irrespective of their side of the story. Their attendance and participation enable the court to address the matter procedurally and legally.
12. The Petition invites the Court to examine the initiated execution process and issue declaratory orders concerning the warrants and the manner in which the execution proceedings were conducted before the trial court. The warrants issued on 9th March, 2023 were lifted on 14th April, 2023. The Petitioner has already obtained a remedy concerning the warrants from the trial court. The trial court duly considered the merits of the application and allowed it, thereby providing the much needed remedy against their enforcement.
13. The doctrines of ripeness and constitutional avoidance require courts to refrain from considering disputes framed as constitutional issues, mainly when a legal recourse exists outside the Constitution.
14. In the case of K K B v S C M & 5 others (Constitutional Petition 014 of 2020) [2022] KEHC 289 (KLR) (22 April 2022) (Ruling), Hon. Mativo, J. (as he then was) articulated the doctrine as follows:
“In summation, the doctrines of ripeness and constitutional avoidance shun to deal with a constitutional issue where there exists another legal course which can give the litigant the relief he seeks. In other words, a constitutional issue is not ripe for determination until the determination of the constitutional issue is the only course that can give the litigant the remedy he seeks. Both constitutional avoidance and ripeness avert the determination of the constitutional issues until it becomes very necessary to the extent that it is the only course available to assist the litigant’s cause…”
15. In light of the above, I find that the Petition dated 4th April, 2023 lacks merit and is therefore dismissed.
16. Each party shall bear their costs of the matter.
It is so ordered.
Delivered virtually on the 24th of February 2025
C.KENDAGOR
JUDGE
In the presence of;
Court Assistant; Beryl
Ms. Karongo Advocate holding brief for Mr. Gitau Advocate for the Applicant
Mr. Aluodo Advocate for the 1st and 2nd Respondents