14.
I am now called upon to call for the records of the subordinate
court to examine the legality of the process. Warrants of search and
seizure are issued by the subordinate court pursuant to specific
provisions of the Criminal Procedure Code. A party who is
dissatisfied by the issue of warrants has a right to apply to set it
aside or in any case apply for revision of the Court orders to the
High Court under Part XI of the Criminal Procedure Code. The
High Court power of revision under the Code is merely a statutory
codification of the Court’s jurisdiction under Article 165(6) and
(7) and unless there is a good reason to bypass the subordinate
court or the High Court procedure established by law, the Court
should resist such a temptation. I am aware that in exercising
jurisdiction to enforce fundamental rights and freedoms, the High
Court is unshackled by statutory and common law procedures and
reliefs. But is must not be lost to the parties that fundamental rights
and freedoms are protected and realised through ordinary
procedures enacted by statute.
15.
As I stated, at least concerning the frequencies subject of the
enforcement action, there is no nexus between this case and
Petition No. 346 of 2012 apart from the fact that my judgment
enunciated broad principles that would apply when CCK is
exercising its statutory authority to regulate the airwaves. The
Chief Magistrates Court has now acted on what appears on its face
a regular process and the petitioner has right to pursue the reliefs I
have alluded to independently of this cause.
16.
Though I firmly believe that I have jurisdiction to call for the
records of the subordinate court, I am not persuaded that these are
proper proceedings to call for those records at this stage
particularly where I am clear that Petition No. 346 of 2012 dealt
PETITION NO. 59 OF 2013 RULING No. 2 03.02.2013
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