District courts do not have the power to levy fees and fines in quasi-criminal cases, ruled Mombasa Supreme Court Justice Ann Ong’injo.
In her February 10, 2022 ruling, the judge said that Mombasa County Government’s claims for collection of fees, fines and bail resulting from quasi-criminal cases should be brought to court through judicial review.
“Support from the county government in terms of infrastructure to enable the judiciary to fulfill its constitutional and legal obligation to provide access to justice does not and should not include revenue collection by the county government,” she said.
A quasi-criminal means a judicial or equitable proceeding that has some, but not all, of the qualities of a criminal prosecution.
Ong’injo said the registrar should ensure that the cases registered by the Mombasa District Government are handled in accordance with the constitution and relevant laws.
Ong’injo also directed the Director of Justice, Ms. Anne Amadi, to spend three months restructuring the operations of Mombasa County Courts.
“The Court hereby orders that the Chief Registrar of the Judiciary and the Mombasa District Government establish structures to enable the Magistrate to process cases registered by the District Government within three months in accordance with the Constitution and relevant laws. said Judge Ong’injo.
“It is high time that the matter was resolved. The current legal order requires that all proceeds collected by the court are transferred to the consolidated fund,” she added.
Mombasa businessman Patrick Kabundu filed a petition in 2018 accusing the Mombasa County government of stealing funds intended for the judiciary by operating illegal county courts.
Kabundu said after being arrested and arraigned in a county court, Judge Eric Ogola paid bail in cash through mobile money.
However, he said the paybill number indicates an account marked “General One” instead of the official bank account.
The Attorney General, Chief Prosecutor and Law Society of Kenya involved in the lawsuit agreed with Kabundu that the District Court should be abolished as it operates illegally and has no mandate to prosecute cases.
However, Mombasa County government attorney Paul Buti challenged his request, saying county courts have a mandate to prosecute and impose penalties. Buti disputed a 2015 directive by former Chief Justice Willy Mutunga removing the judges who presided over those courts.
However, Attorney General’s Counsel Emmanuel Makuto said that the courts and the judicial functions are national functions and are not delegated. He said the money taken as a fine should be paid into the judiciary’s consolidated fund.