[2015] KEHC 6106 (KLR)
The court found that the applicant's allegation of bias against the trial magistrate, coupled with the State's concession to the application, warranted the transfer of the case. To uphold the principle that justice must be seen to be done, the court exercised its supervisory jurisdiction to transfer the criminal...
Source-derived case information.
- Citation
- [2015] KEHC 6106 (KLR)
- Parties
- Applicant: Alex Kiio Makau; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 110 of 2014
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Transfer of Criminal Case
- Outcome
- application allowed
- Judges
- BT Jaden
- Legal Topics
- Transfer of Criminal Cases, Judicial Bias, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alex Kiio Makau
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Transfer of Criminal Case
Legal Issues
- 1 Whether the criminal case against the applicant should be transferred from Kithimani Law Courts to another court for hearing.
- 2 Whether there is sufficient basis for alleging bias on the part of the trial magistrate.
Ratio Decidendi
The court found that the applicant's allegation of bias against the trial magistrate, coupled with the State's concession to the application, warranted the transfer of the case. To uphold the principle that justice must be seen to be done, the court exercised its supervisory jurisdiction to transfer the criminal case from Kithimani Law Courts to Tawa Law Courts. The court further ordered that the case be heard de novo, ensuring a fresh and impartial hearing before a different magistrate.
Court Disposition
application allowed
Orders
- The criminal case against the applicant is transferred from Kithimani Law Courts to Tawa Law Courts.
- The case shall be heard de novo at Tawa Law Courts.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL MISC. APPLICATION NO. 110 OF 2014
ALEX KIIO MAKAU ………………………………….…… APPLICANT
VERSUS
REPUBLIC …………………………………………………… RESPONDENT
R U L I N G
1. The application dated 25/5/2014 seeks orders, inter-alia, that this case be transferred from Kithimani Law Courts.
2. The Applicant, Alex Kiio Makau was charged with the offence of house breaking contrary to section 304 (1) (b) and stealing contrary to section 279 (b) of the Penal Code.
The particulars being that “on the 31st day of December 2012 at about 11. 00 hrs at Matuu Township in Yatta District within Machakos County, broke and entered into a dwelling house of Damaris Leah, Nyambura with intent to steal and did steal therein three academic certificates, 1 Panasonic radio, L.T DVD machine, cooking fats, two inner top weaving valued at Kshs.34,180/=the property of the said Damaris Leah Nyambura.”
3. The background facts according to the affidavit in support is that the complainant who is a wife to the Applicant made an application to have the case withdrawn from court and settled at home but the application was rejected by the court. The Applicant accuses the trial magistrate of being biased, hence this application.
4. The application was conceded to by the State. Consequently, for justice to be not only done but be seen to be done, I allow the application. The case is hereby transferred to Tawa Law Courts. Case to be heard de novo. Mention on 19/3/15 at the Principal Magistrate’s Court, Tawa.
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakosthis 18thday of February 2015.
………………………………………
B. THURANIRA JADEN
JUDGE