[2004] KEHC 741 (KLR)
The court found that while the applicants' allegations against the magistrate were unsubstantiated and the proper procedure would have been to first apply before the trial magistrate, the circumstances justified granting the application. The court emphasized that cancellation of bond alone does not prove bias, but...
Source-derived case information.
- Citation
- [2004] KEHC 741 (KLR)
- Parties
- Applicant: Benjamin Muindi Nthuka; Applicant: Boniface Muia Nthuka; Respondent: The Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Appeal 75 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer of Criminal Case and Bond Terms
- Outcome
- Application granted.
- Judges
- RPV Wendoh
- Legal Topics
- Transfer of Criminal Cases, Bail and Bond, Fair Trial Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benjamin Muindi Nthuka
Applicant
Boniface Muia Nthuka
Applicant
The Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer of Criminal Case and Bond Terms
Legal Issues
- 1 Whether the applicants are entitled to the transfer of their criminal case to another court due to alleged bias by the magistrate.
- 2 Whether the applicants should be granted bond and under what terms.
Ratio Decidendi
The court found that while the applicants' allegations against the magistrate were unsubstantiated and the proper procedure would have been to first apply before the trial magistrate, the circumstances justified granting the application. The court emphasized that cancellation of bond alone does not prove bias, but in the interest of justice and to allay the applicants' apprehensions, it ordered the transfer of the case to Makueni court and granted bond to the applicants on specified terms.
Court Disposition
Application granted.
Orders
- Applicants to execute bonds of Ksh. 20,000 each with a surety of like sum.
- The criminal case is transferred to Makueni court for hearing and disposal.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
MISC CRIM APPLI 75 OF 2004
1. BENJAMIN MUINDI NTHUKA
2. BONIFACE MUIA NTHUKA :::::::::: APPLICANTS
VERSUS
THE REPUBLIC :::::::::::::::::::::::::::::: RESPONDENT
RULING
The applicants are apprehensive that they will not be accorded a fair trial before the magistrate since their bonds were irregularly cancelled by the magistrate and they had to be released by orders of this court. They have made other allegations against the magistrate though not substantiated. It would have been proper if the application was first made before the trial magistrate before they came to the high court. The fact that a magistrate has cancelled bond does not mean that a magistrate is biased. I would encourage the parties to make such application before the trial magistrate first. The court will not encourage such application.
In this case, however, application is granted and the applicants will execute bonds of Ksh. 20,000/= each with a surety of like sum for them to take care of the costs that may be incurred in the prosecution of the matter in the event that they are convicted.
The case is hereby transferred to Makueni court for hearing and disposal. The applicants do appear at Makueni court on 14/12/04.
Dated at Machakos this 9th day of December 2004
Read and delivered in the presence of
R.V. WENDOH
JUDGE