[2017] KEHC 4032 (KLR)
The court held that mere delay in the hearing of a criminal case, without additional compelling reasons, does not justify the transfer of the case to another court. The court acknowledged the prosecution's lack of diligence in progressing the matter but found this insufficient to warrant a transfer. Instead, the...
Source-derived case information.
- Citation
- [2017] KEHC 4032 (KLR)
- Parties
- Applicant: Benson Ndirangu Muthoni; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Naivasha
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 14 of 2016
- Procedural Posture
- Criminal Revision / Ruling on Application for Transfer of Case
- Outcome
- application for transfer dismissed; matter remitted to trial court
- Judges
- CW Meoli
- Legal Topics
- Criminal Revision, Sexual Offences, Case Transfer, Delay of Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benson Ndirangu Muthoni
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Transfer of Case
Legal Issues
- 1 Whether delay in hearing justifies transfer of a criminal case to another court.
- 2 Whether the prosecution's failure to secure the police file constitutes sufficient ground for transfer.
- 3 Whether the charge sheet requires amendment to reflect the correct offence.
Ratio Decidendi
The court held that mere delay in the hearing of a criminal case, without additional compelling reasons, does not justify the transfer of the case to another court. The court acknowledged the prosecution's lack of diligence in progressing the matter but found this insufficient to warrant a transfer. Instead, the court emphasized the need for the trial court to require greater seriousness from the prosecution and directed that the charge sheet be amended to accurately reflect the offence under the Sexual Offences Act. The application for transfer was therefore rejected, and the matter was remitted to the trial court for expeditious handling.
Court Disposition
application for transfer dismissed; matter remitted to trial court
Orders
- The application for transfer of the case is rejected.
- The matter is remitted back to the trial court for expeditious hearing.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIVASHA
CRIMINAL REVISION NO. 14 OF 2017
(From original Criminal Case No. (S.O.) 69 of 2016 of the Chief Magistrate’s Court at Naivasha)
(Formerly Criminal Case No. 429 of 2016 of the Senior Resident Magistrate’s Court at Engineer)
BENSON NDIRANGU MUTHONI….……….….……………....................APPLICANT
-VERSUS-
REPUBLIC………………………………………………………………PROSECUTOR
RULING ON REVISION
1. The Accused herein was charged before the SRM’s Court Engineer Criminal Case 429 of 2016 with the offence of Rape under the Sexual Offences Act. Pursuant to his previous application to this court in Criminal Revision Number 35 of 2016, this court ordered that the matter be transferred to the CM’s Court Naivasha. A new number Chief Magistrate’s Court Naivasha Criminal Case Number (S.O.) 69 of 2016was assigned to the case. That was in November 2016. The Applicant elected to have the case start denovo.
2. The Accused has yet again filed a revision seeking to have his case transferred, this time to Court Number 2 or any other court in the Chief Magistrate’s Court Naivasha. The chief ground is that since the transfer of his case to the Chief Magistrate’s Court Naivasha in November 2016, no hearing has taken place.
3. I have called for and perused the proceedings in Naivasha Chief Magistrate’s Court Criminal Case Number (S.O.) 69 of 2016. I have confirmed indeed that on several occasions the matter has failed to proceed to hearing as the complainant has not attended. Indeed the prosecution has severally indicated that their counterparts in Engineer have not released the police file into their custody.
4. In my considered view, the delay of a case, without more, cannot be a proper basis for transferring a case from one court to another. However, I fail to understand the lackadaisical attitude of the prosecution in moving this matter forward. Even so I reject the Accused’s request for transfer of the case.
5. I would remit the matter back to the trial court. Justice delayed is justice denied, for both the victim and the Accused, especially in a matter of this nature. No doubt, the trial court will require prosecution to demonstrate more seriousness in this matter than displayed hitherto. For starters, the charge sheet ought to be amended so that the offence reflected in the statement of offence in the main count indicates that the offence is Rape contrary to Section 3 (1) (a) and (c) as read with Section 3 (3) of the Sexual Offence Act.
Written and signed at Naivasha this27thday of July, 2017.
C. MEOLI
JUDGE