1. Before me is a Notice of Motion application dated 22nd May 2025, vide which the Applicant seeks his release from civil jail pending the hearing of the said application interpartes. The application is supported by the annexed affidavit of the Applicant, sworn on 22nd May 2025.
2. The applicant is aggrieved by the decision of the Hon Dominica Nyambu made on 22nd May 2023, in respect of an application brought under a certificate of urgency, vide which she declined to issue orders releasing the Applicant from civil jail, and ordered instead that the application be heard interpartes on 3rd June 2025.
3. I have perused the said application. I note that the Applicant appears to admit that a sum of US$9,000/- or thereabouts is still owing from him, which amount is subject to reconciliation and confirmation. It is therefore entirely possible that the amount that the Applicant was to pay in accordance with the consent entered into by the parties has not been settled.
4. In arriving at her decision, the learned Chief Magistrate exercised judicial discretion. In the case of Mbogo and another v Shah [1968] EA 93 , the Court of Appeal for Eastern Africa stated as follows:
“
…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
5. Given the circumstances of this matter, I do not see how the learned Chief Magistrate may be said to have misdirected herself, or acted on matters she shouldn't have, failed to take into consideration relevant matters or otherwise arrived at a wrong conclusion. She certified the matter urgent and gave an early hearing date. Her decision was fair and just in the circumstances.
6. The upshot of the foregoing is that I cannot issue the orders sought. I therefore direct that the application be served for hearing interpartes on 4th June 2025 before the Hon Lady Justice Florence Wangari.
7. It is so ordered.
Dated and signed in Mombasa this 26th day of May 2025. Ruling posted on CTS.
2. The applicant is aggrieved by the decision of the Hon Dominica Nyambu made on 22nd May 2023, in respect of an application brought under a certificate of urgency, vide which she declined to issue orders releasing the Applicant from civil jail, and ordered instead that the application be heard interpartes on 3rd June 2025.
3. I have perused the said application. I note that the Applicant appears to admit that a sum of US$9,000/- or thereabouts is still owing from him, which amount is subject to reconciliation and confirmation. It is therefore entirely possible that the amount that the Applicant was to pay in accordance with the consent entered into by the parties has not been settled.
4. In arriving at her decision, the learned Chief Magistrate exercised judicial discretion. In the case of Mbogo and another v Shah [1968] EA 93 , the Court of Appeal for Eastern Africa stated as follows:
“
…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
5. Given the circumstances of this matter, I do not see how the learned Chief Magistrate may be said to have misdirected herself, or acted on matters she shouldn't have, failed to take into consideration relevant matters or otherwise arrived at a wrong conclusion. She certified the matter urgent and gave an early hearing date. Her decision was fair and just in the circumstances.
6. The upshot of the foregoing is that I cannot issue the orders sought. I therefore direct that the application be served for hearing interpartes on 4th June 2025 before the Hon Lady Justice Florence Wangari.
7. It is so ordered.
Dated and signed in Mombasa this 26th day of May 2025. Ruling posted on CTS.