[2016] KEHC 2896 (KLR)
The court found that recalling Hon. Mr Odenyo to complete the inquest would serve the general convenience of the parties and witnesses, and was expedient for the ends of justice. The absence of opposition and the advanced stage of the proceedings, with significant witness testimony already heard by the same...
Source-derived case information.
- Citation
- [2016] KEHC 2896 (KLR)
- Parties
- Applicant: A.B. Olaba; Respondent: Director of Public Prosecution (Mombasa) & 3 Others
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 71 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Recall Magistrate
- Outcome
- application allowed
- Judges
- DO Chepkwony
- Legal Topics
- Transfer of Proceedings, Recall of Judicial Officer, Inquest Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
A.B. Olaba
Applicant
Director of Public Prosecution (Mombasa) & 3 Others
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Recall Magistrate
Legal Issues
- 1 Whether the High Court should order the recall of Hon. Mr Odenyo to complete hearing and determination of Mombasa Inquest No 3 of 2015.
- 2 Whether such recall is expedient for the ends of justice and convenience of parties and witnesses.
Ratio Decidendi
The court found that recalling Hon. Mr Odenyo to complete the inquest would serve the general convenience of the parties and witnesses, and was expedient for the ends of justice. The absence of opposition and the advanced stage of the proceedings, with significant witness testimony already heard by the same magistrate, justified the recall to ensure consistency and fairness in the determination of the inquest. The court exercised its discretion under Section 81(1)(d) and (e) of the Criminal Procedure Code to grant the application.
Court Disposition
application allowed
Orders
- Hon. Mr Odenyo, Senior Principal Magistrate, Migori Law Courts, is recalled to Mombasa Law Courts to hear and finalize Inquest No 3 of 2015.
- The Chief Magistrate, Mombasa Law Courts, is to facilitate and execute these directions.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
MISC CRIMINAL APPLICATION NO. 71 OF 2016
A.B.OLABA (ADVOCATE) ……………………………….…APPLICANT
VERSUS
DIRECTOR OF PUBLIC PROSECUTION
(mbs) & 3 OTHERS ……………………………………RESPONDENTS
RULING
This is a ruling in an application by way of Notice of Motion dated 19th July, 2016 and brought under section 81 (1) (d) and (e) of the Criminal Procedure Code.
The application seeks to have Hon. Mr Odenyo, who has since been transferred from Mombasa law Courts to Migori Law courts recalled to Mombasa law courts on suitable days as circumstances may permit to enable him hear to completion the testimonies of the remaining witnesses in Mombasa Inquest No 3 of 2015 and thereafter write and deliver a ruling thereof.
The application is based on the grounds in the application and supporting affidavit of Mr A. B.Olaba, advocate for the Applicants. The grounds are as follows;
(a)that Hon. Mr Odenyo was hearing the said inquest before being transferred to Migori;
(b) that fifteen(15) witnesses have so far testified before Hon. Mr Odenyo, the 15th witness having testified on 25the May 2016 and the matter adjourned to 9th June 2016;
(c) that of the fifteen (15) witnesses, expert testimony was tendered in evidence accompanied by voluminous documentary exhibits produced;
(d) that the counsel for the applicants (family of the deceased) believes that the testimonies and demeanor of the witnesses who have so far testified, especially two police officers who are suspects in the case, is still fresh in the mind of Hon. Mr Odenyo since he had an opportunity and advantage of hearing and watching them testify before him.
Mr Ayodo holding brief for M/s Fundi did not oppose the application.
I have considered the application by the applicant in light of the provisions of Section 81 (1) (d) and (e) of the Criminal Procedure Code which provides that;
“Whenever it is made to appear to the High court”.
(d)that an order under this section will tend the general convenience of the parties or witnesses; or”.
(e)that such an order is expedient for the ends of justice or is required by any provisions of the code;
I appreciate that the cause of action took place in this jurisdiction.
Since there has been no objection to the application, and for purposes of convenience to the parties and consistency in the process, I allowed the same.
I therefore direct that Hon. Mr Odenyo, Senior Principal Magistrate, Migori Law courts be recalled to Mombasa Law courts to hear and finalize inquest No 3 of 2015, being in question to the death of Alexander John Norman Monsoon (Deceased).
The Chief Magistrate, Mombasa Law courts to facilitate/execute the directions.
RULING, SIGNED AND DATED THIS 30TH SEPTEMBER 2016.
D. O. CHEPKWONY
JUDGE
In the presence of:
Mr Ayodo for the state
Mr Olaba for Applicant
C/clerk- Kiarie