https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13046

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CRIMINAL DIVISION** **REVISION NO. E 035 OF 2026** **IN THE MATTER OF A JUDICIAL REVIEW APPLICATION** **&** **IN THE MATTER OF ARTICLE 23(3) & 165(6) OF THE CONSTITUTION OF KENYA &** **IN THE MATTER OF THE VIOLATION OF THE APPLICANT’S RIGHTS UNDER 10, 25(c), 48, 50(1), 50(2)(f), & (g), 50(5)(b), 50(3) & 232 OF THE CONSTITUTION OF KENYA &** **IN THE MATTER OF SECTION 348, 354, 357, 362 & 364(1)(b)OF THE CRIMINAL PROCEDURE CODE** **&** **IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT** **ACT NO. 4 OF 2015 AND THE VIOLATION OF SECTION 4 & 6 OF THE FAIR ADMINISTRATIVE ACTION ACT** **&** **IN THE MATTER OF BREACH OF GUIDELINE NO. 1.2(b) & (g)(iv) & 7.2(b) IN THE GUIDELINES FOR ACTIVE CASE MANAGEMENT OF CRIMINAL CASES IN MAGISTRATES COURT AND HIGH COURTS OF KENYA** **&** **IN THE MATTER OF ORDER 53 OF THE CIVIL PROCEDURE ACT** **&** **IN THE MATTER OF THE MAGISTRATES COURT ACT** **&** **IN THE MATTER OF AN APPLICATION FOR THE CALLING UP OF THE RECORD & REVIEW OF THE ORDERS DATED 22ND JANUARY, 2026; 28TH JANUARY, 2026, & 14TH APRIL, 2026 BY HON. LUCAS ONYINA** **&** **IN THE MATTER OF AN APPLICATION FOR THE CALLING UP OF THE RECORD & REVIEW OF THE ORDER OF 22ND APRIL 2026 BY HON. DOLPHINA ALEGO (CM) NAIROBI CHIEF MAGISTRATE DENYING THE APPLICANT AUDIENCE & WITHOUT ANY FORM OF HEARING OF THE 1ST ACCUSED PERSON’S/APPLICANT’S RECUSAL MOTION DATED 21ST OCTOBER, 2025 IN NAIROBI MCCR/E1137/2023 (R vs. DAVIS CHELOGOI & ANDREW KIRUNGU)** **&** **IN THE MATTER OF A JUDICIAL REVIEW APPLICATION** **BY** **DAVIS NATHAN CHELOGOI--------------------------------------APPLICANT** **VERSUS** **LUCAS ONYINA, CHIEF MAGISTRATE** **NAIROBI CHIEF MAGISTRATES’ COURT------------------1ST RESPONDENT** **DOLPHINA ATIENO ALEGO, CHIEF MAGISTRATE NAIROBI CHIEF MAGISTRATES’ COURT------------2ND RESPONDENT THE DIRECTOR OF PUBLIC PROSECUTIONS----------------------------------------------------------------------------------------3RD RESPONDENT** **THE HON. ATTORNEY GENERAL-------------4TH RESPONDENT** **AND** **ROSE NDOMBI, SENIOR PRINCIPAL MAGISTRATE** **NAIROBI CHIEF MAGISTRATES’ COURT--------1ST INTERESTED PARTY** **ANDREW ASERI KIRUNGU------------------------2ND INTERESTED PARTY** **RULING** 1. The applicant vide anAmended Notice of Motion dated 24th April 2026 and further amended on 29th April 2026, in CRJR. Case No. E035 of 2026 moved this court to quash proceedings conducted by the Honorable Dolphina Alego in Nairobi MCCR/E1137/2023. 2. The applicant complained that the learned Honorable magistrate proceeded to hear the matter yet she had been transferred to the employment and labour relations court thus in the applicant’s view she had ceased to exercise jurisdiction over criminal matters. 3. The applicant further contended that HON. **Lucas Onyina, Chief Magistrate Nairobi Chief Magistrates’ Court, 1st Respondent** erroneously allocated the matter to Honorable Dolphina Alego without jurisdiction and by dint of his action removed the matter from the Honorable **Rose Ndombi, Senior Principal Magistrate**who had already assumed jurisdiction over the matter following the transfer of the Honorable Dolphina Alego. **Applicant's Submissions** 1. In support of the Amended Notice of Motion dated 24th April 2026 and further amended on 29th April 2026, in CRJR. Case No. E035 of 2026, Nairobi, the Applicant opened his submissions with the Supreme Court's holding in Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR), which stated that the right to fair trial "was one of the cornerstones of a just and democratic society, without which the rule of law and public faith in the justice system would inevitably collapse." 2. By way of background, the Applicant, Davis Nathan Chelogoi, is the 1st Accused in Nairobi MCCR/E1137/2023 alongside the 2nd Interested Party, Andrew Aseri Kirungu. 3. The applicant narrated that his recusal motion against the 2nd Respondent, Hon. Dolphina Alego, filed on 21st October 2025, was summarily dismissed without a hearing, prompting review before Hon. Muteti, J. in HCCR No. E145 of 2025. 4. That a decision was rendered on 20th January 2026 and at paragraphs 86–88 the court found that "the trial magistrate did not hear the parties on the formal application for recusal and simply went on to do a Ruling on the matter," that that omission "was an irregularity that would not pass the test of the provisions of Article 50 of the Constitution," and that "the legitimate expectation on the part of the applicant would be that, upon filing of the application there would have been a hearing." 5. At paragraph 90, the Court held that "the application partially succeeds only to allow the same magistrate to reopen the recusal application for hearing should the applicant so desire." 6. Turning to the merits, on the question of the High Court's jurisdiction to entertain judicial review in criminal proceedings, the Applicant relied on the Supreme Court's decision in Communications Commission of Kenya v Royal Media Services Limited [2014] eKLR, which held at paragraph 355 that "the Constitution of 2010 has elevated the process of judicial review to a pedestal that transcends the technicalities of common law." 7. At paragraph 339, the same Court held that Article 23(3) grants the High Court power to grant appropriate relief including "a declaration of rights," "an injunction," "a conservatory order," "a declaration of invalidity of any law, an order for compensation, and an order for judicial review. 8. At paragraph 404, the Court further held that a breach of Article 47 attracts remedies in Judicial Review especially where an aggrieved person had cause to expect that the attendant aspects of fair administrative action would be adhered to, and that the court can quash any decision arrived at un-procedurally or unfairly but reserves itself no right to engage in the administrative duties of the body in question and the court went further to hold that the court must remain a court. 9. The Applicant further relied on Margaret Nyaruai Theuri v National Police Service Commission [2016] KEELRC 1024 (KLR), where Ongaya, J. held that under the constitutional provisions and in particular Articles 22 and 23, every person is entitled to seek judicial review orders. 10. The Court also considered the provisions of Article 159(2)(d) that justice should be administered without undue regard to procedural technicalities and concluded by holding that dismissing a case solely upon the manner she titled her pleadings would amount to unreasonable regard to a procedural technicalities. 11. The applicant further cited Muhura v Teachers Service Commission [2015] KEELRC 717 (KLR), where the Court held that it is possible for a litigant to apply for and pray for both compensatory relief and orders of judicial review in the same pleading and that the barrier or ridge or valley between judicial review proceedings and the ordinary actions as they were had been collapsed by the Constitution of Kenya, 2010. 12. Reliance was further placed on Kenya Human Rights Commission v Non-Governmental Organizations Co-ordination Board [2016] KEHC 5405 (KLR), where Onguto, J. held that a person whose interests and rights are likely to be affected by an administrative action has a reasonable expectation that they will be given a hearing before any adverse action is taken citing Ridge v Baldwin [1964] AC 40 and Halsbury's Laws of England for the ***audi alteram partem*** rule being a fundamental principle of justice. 13. The Court concluded that the court, effectively has a duty to look into not only the merits and legality of the decision made... but also the process and procedure adopted. 14. The applicant thus urged this court to look into not only the decision of the 1st respondent committing the matter for trial before the Hon. Dolphina Alego SPM but also the propriety of the orders and quash the resultant proceedings. 15. The Applicant further invoked the Court of Appeal's decision in Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others [2016] KECA 729 (KLR), where the court held that the law on judicial review of administrative action is now to be found not exclusively in common law but in the principles of Article 47 of the Constitution as read with the Fair Administrative Action Act of 2015. 16. The applicant further urged that Section 7(2)(l) of the Fair Administrative Action Act provides for proportionality as a ground for statutory judicial review such that the consideration of proportionality is an indication of the shift towards merit consideration in statutory judicial review applications. 17. The applicant also urged the court to consider granting a prohibition to stop further proceedings before the Hon Alego Dolphina SPM. 18. The applicant cited Republic v Kenya Anti-Corruption Commission & 2 others [2009] KECA 387 (KLR) where the court held that a prohibiting order can issue against a Magistrate in respect of criminal proceeding pending in court if... the magistrate is acting without or in excess of jurisdiction or that accused will be denied due process. 19. According to the applicant the Hon Alego SPM was acting without jurisdiction thus this court ought to stop the Hon. Magistrate from any further conduct of the matter. 20. He further quoted Lord Diplock in Attorney General v Ryan (1980) 2 All ER 608 where the court held;- ***“It has long been settled law that a decision affecting the legal rights of an individual which is arrived at by procedure which offends against the principles of natural justice is outside the jurisdiction of the decision-making authority."*** 21. On non-compliance with section 367 of the Criminal Procedure Code, the Applicant cited **Mbaki & others v Macharia & another*(2005) 2 EA 206,*** where the Court of Appeal held that the right to be heard is a valued right, and that "it would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard." 22. He relied further on Republic v Isaac Theuri Githae & Another [2007] KECA 388 (KLR), where the Court held that "the injunction against trying the accused person concerned is not against the Attorney General, but the trial court, and that order was amenable to judicial review, concluding there that there was no basis for holding that the magistrate was improperly made a respondent in this matter. 23. He also invoked Onyango v Attorney General (1986–1989) EA 456, where Nyarangi, JA held that ;- the principle of natural justice applies where ordinary people would reasonably expect those making decisions which will affect others to act fairly, and further that a decision in breach of the rules of natural justice is not cured by holding that the decision would otherwise have been right. If the principle of natural justice is violated, it matters not that the same decision would have been arrived at. 24. On the propriety of a stay of proceedings, the Applicant relied on R (H) v Ashworth Special Hospital Authority (2003) 1 WLR 12, where Dyson LJ held that the essential effect of a stay of proceedings is to suspend them, such that where the inferior court or administrative body has not yet made a final decision, then the effect of the stay will be to prevent the taking of the steps that are required for the decision to be made. 25. He further cited **Ng'eny v Attorney General & another [2001] KEHC 746** **(KLR**), where Kassanga Mulwa, J. held that in such a case it would be against all common sense not to grant a stay of the criminal proceedings to await the outcome of the application in the High Court, and that "the grant of leave granted in this application shall operate as a stay. 26. The applicant also relied on **Republic v Kenya Anti-Corruption Commission & 2 others [2009] KECA 387 (KLR),** which held that “if I do not grant a stay and the appeal were to succeed the applicant would have undergone an expensive trial which could result in his being sent to prison and thus denying him his liberty." 27. He further cited Kuria & 3 Others v Attorney General [2002] 2 KLR 69, which held that "the Court has power and indeed the duty to prohibit the continuation of the criminal prosecution if extraneous matters divorced from the goals of justice guide their instigation, and that a stay... should be granted where compelling an accused to stand trial would violate the fundamental principles of justice which underlie the society's sense of fair play and decency and/or where the proceedings are oppressive or vexatious." 28. On the revisionary jurisdiction, the applicant cited **Joseph Nduvi Mbuvi v Republic [2019] KEHC 9895 (KLR)**, where Odunga, J. held that "the object of the revisional jurisdiction of the High Court is to enable the High Court... to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial... should be proceeded with." 29. On the question of jurisdiction following the 2nd Respondent's transfer, the Applicant placed central reliance on the Court of Appeal's decision in **Chengo & 2 others v Republic** **[2015] KECA 756 (KLR**), which held that "the law envisages that the judges of the two specialized courts should be different from judges of the High Court in terms of experience and specialization," and asked rhetorically, "can it be said that justice would be served to an appellant when a judge whose only flair is either in ELRC or ELC is suddenly empaneled by the Chief Justice to hear a criminal appeal?" The Court further held that "having been so appointed by the President, the Chief Justice or indeed any other entity cannot lawfully move him to hear matters reserved for the High Court," adding that "the converse is again true, judges appointed to the High Court and ELRC have no constitutional and statutory mandate to deal with ELC matters." 30. He also relied on Guantai v Chief Magistrate, Nairobi [2007] KECA 496 (KLR), which held that "the prosecution... would be oppressive and vexatious and would amount to an abuse of the process of the Court," and that "the learned trial Judge had inherent power and duty to intervene but he did not take the appropriate judicial action." 31. The same decision cited **Stanley Munga Githunguri v Republic [1985] KLR** **91** for the proposition that "if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious the Judge has the power to intervene," and that "the High Court has an inherent power and a duty to secure fair treatment for all persons who are brought before the court." 32. In conclusion, the Applicant submitted that, for the reasons set out, his application dated 24th April 2026, as amended on 29th April 2026, is fully merited and ought to be allowed as prayed, with costs. **The 1st, 2nd and 4th Respondents Submissions** 1. The 1st, 2nd and 4th Respondents, through State Counsel Hussein Idris of the Attorney General Chambers, submitted in opposition to the Applicant Davis Nathan Chelogoi's Amended Chamber Summons dated 29th April 2026, contending at the outset that the same had been filed without leave of court and in flagrant breach of Order 53 of the Civil Procedure Rules, 2010. 2. By way of background, the Respondents narrated that the Applicant is the 1st Accused in Nairobi MCCR/E1137/2023, charged with conspiracy to defraud, forcible detainer, and forgery alongside the 2nd Interested Party, Andrew Aseri Kirungu. 3. The trial had commenced before the 2nd Respondent, Chief Magistrate Dolphina Atieno Alego, and by the time of her transfer to the Employment and Labour Relations Court, all nineteen prosecution witnesses had testified, 136 documentary exhibits had been produced, and the defence hearing had begun before the Applicant was stood down upon filing a recusal application. 4. That recusal application was dismissed, prompting the Applicant to move the High Court in HCCRREV/E145/2025, this court, in a Ruling delivered on 20th January 2026, found a breach of the spirit of Article 50 for failure to hear the recusal application, granted liberty to reopen it, but directed that the hearing "SHALL however proceed before the learned trial magistrate", 5. The respondents contend that the Ruling remains un-appealed, unvaried, and binding. Following the 2nd Respondent's transfer, the file passed briefly before the 1st Interested Party, Rose Ndombi, SPM, under a transitional arrangement, before the 1st Respondent, Chief Magistrate Lucas Onyina, held ex parte proceedings on 22nd January 2026 in the Applicant's absence and directed reallocation to the 2nd Respondent. 6. On 14th April 2026, the 1st Respondent issued a considered Ruling, applying section 200 of the Criminal Procedure Code, the Court of Appeal decisions in Eric Omondi alias Gor v Republic [2007] KECA 298 (KLR) and Abdi Adan Mohamed v Republic [2017] eKLR, together with the Chief Justice's Internal Memo of 10th July 2024, directing that the matter proceed before the 2nd Respondent to conclusion. Hearing dates were then fixed for 28th and 29th April 2026; the defence case closed on the former date, while the impugned Amended Chamber Summons was filed on the latter, without leave. 7. On the threshold procedural point, the Respondents relied on **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696** for the proposition that jurisdictional defects may be raised at any stage. Walking through the architecture of Order 53 and Order 8 of the Civil Procedure Rules, they argued that the Applicant, having filed an original Chamber Summons on 24th April 2026, could not thereafter file a substantially transformed "Amended" Chamber Summons on 29th April 2026 — introducing the Attorney General as a party, expanding reliefs, adding new constitutional grounds, and invoking the Fair Administrative Action Act — without leave to amend and without a supporting affidavit, rendering it verified only in relation to the original document and thus incurably defective. 8. For this they cited Republic v Public Procurement Administrative Review Board Ex parte Cosmopolitan Strategies Ltd & 2 Others [2014] eKLR, and a string of authorities holding that amendment without leave is a nullity, including Mohamed Ahmed Jama v Kenya National Shipping Line Ltd & 2 Others [2012] eKLR (citing Wickham v D & G Murray (Commercial) Ltd [1957] 1 QB 234), Patel v Patel & Another [2013] eKLR, National Industrial Properties Ltd v Cassman Wajcman & 3 Others [2018] eKLR, Republic v Independent Electoral and Boundaries Commission & Another Ex parte Coalition for Reforms and Democracy [2011] eKLR, Jasbir Singh Rai v Tarlochan Singh Rai & 2 Others [2013] eKLR, and Okeyo v Okeyo [2018] eKLR. 9. The Respondents further submitted that the application had been filed in the wrong division of the High Court, despite being styled under the Criminal Division, when its own heading, reliefs, and invocation of Order 53 marked it as a judicial review matter properly belonging in the Judicial Review Division, relying on In Re Interim Independent Electoral Commission [2011] eKLR. 10. The respondents also argued misjoinder, contending that the 1st and 2nd Respondents, as judicial officers, could not be sued in their personal capacities for judicial acts, invoking the doctrine of judicial immunity under section 8 of the Judicature Act and Article 160(5) of the Constitution, and quoting Mativo, J. in Republic v RO Mbogo & Another; Alfred Ndemo Nyakundi (Interested Party) Ex parte Diana Mutheu & Another [2020] KEHC 8482 (KLR), who held that such allegations, "if well founded can be argued as grounds of appeal or grounds for recusal but not as grounds to sue the judicial officer in his personal capacity, and that such a suit "is an affront to the judicial immunity granted to judicial officers." 11. The respondents proceeding without prejudice to the preliminary objections, addressed the merits and argued that the impugned acts allocation and reallocation of the file, fixing of hearing dates, and handling of the recusal application were quintessentially judicial rather than administrative, and therefore not amenable to judicial review or the Fair Administrative Action Act, citing Kiage, JA in Judicial Service Commission v Mbalu Mutava & Another [2015] eKLR for the proposition that the High Court's supervisory jurisdiction "is not, and has never been, an avenue for re-arguing the merits of interlocutory decisions made by subordinate courts in the exercise of their judicial authority," alongside Republic v Director of Public Prosecutions & Another Ex parte Patrick Ogola [2016] eKLR, Owners of Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 327, and Republic v Kenya National Examinations Council & Another Ex parte Gathenju High School & 9 Others [2015] eKLR. 12. On jurisdiction following transfer, the Respondents relied on **Eric Omondi alias Gor v Republic [2007] KECA 298 (KLR**), citing Raphael v R [1969] EA 544, and on the Court of Appeal's holding in Abdi Adan Mohamed v Republic [2017] eKLR that "even where the trial magistrate has been transferred, arrangements ought to be made for him or her to return to the former station to complete the trial, unless in cases where only a few witnesses had testified". 13. The respondents argued that the principle applied squarely given the stage at which the proceedings had reached. They distinguished the Applicant's reliance on Chengo & 2 Others v Republic [2015] KECA 756 (KLR) as concerning an ELC Judge's appellate jurisdiction rather than a magistrate's general criminal jurisdiction, and pointed to the binding character of the Chief Justice's Internal Memo of 10th July 2024 issued under Article 161(2) of the Constitution. 14. On exhaustion of remedies, the Respondents invoked Owners of Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 327 and Speaker of the Senate & Another v Attorney General & 4 Others [2013] eKLR, alongside Law Society of Kenya v Kenya Revenue Authority & 2 Others [2017] eKLR, arguing that the Applicant had failed to exhaust his recusal application, revisional remedies under sections 348, 354, 357, 362 and 364 of the Criminal Procedure Code, and appellate remedies under sections 348 and 382. 15. On abuse of process, the Respondents catalogued no fewer than eight parallel proceedings instituted by the Applicant on the same subject matter, including one, CRJR/E060/2025, dismissed by Angote, J. on 5th March 2026, a fact they said the Applicant had deliberately suppressed. 16. The respondents relied on the test formulated in **Satya Bhama Gandhi v Director of Public Prosecutions & 3 Others [2018] KEHC 6100 (KLR),** which identifies as abusive, among other things, instituting a multiplicity of actions on the same subject matter, against the same opponent, on the same issues and instituting different actions between the same parties simultaneously in different courts even though on different grounds, together with Jasbir Singh Rai v Tarlochan Singh Rai & 2 Others [2013] eKLR, Republic v Kenya Revenue Authority Ex parte Yala Trading [2001] 1 EA 197, and Republic v Public Procurement Administrative Review Board & Another Ex parte Utumishi & 3 Others [2015] eKLR, characterising the application as a disguised attempt to secure a magistrate of the Applicant's choosing. 17. The respondents further argued that the Applicant lacked an arguable case for leave, since the proceedings sought to be stayed had already concluded, invoking Matiba v Attorney General, Nairobi HCMA No. 790 of 1993, Republic v Land Dispute Tribunal Court Central Division & Another Ex parte Nzioka [2006] 1 EA 321, and Adan Abdullahi Kadiye & Another v Ex parte Yussuf Muhumed Abdi [2015] KEHC 2900 (KLR), which held that where the decision sought to be quashed has been implemented, leave ought not to operate as a stay since… there may be nothing remaining to be stayed, as well as George Philip M Wekulo v The Law Society of Kenya & Another, Kakamega HCMISCA No. 29 of 2005. 18. They also disputed the existence of any consent order allegedly made by the 1st Interested Party on 21st January 2026, relying on Republic v Registrar of Societies ex parte Justus Nyangaya & 3 Others [2005] KEHC 1854 (KLR) for the proposition that jurisdiction cannot be conferred by consent. 19. On the allegations of bias, collusion, and bad faith, the Respondents submitted these were unsubstantiated and speculative, relying on Aokact Investment Ltd v Cooper Motors [2014] eKLR and Tatechad Ltd v Pannel [2001] 2 EA 49, which held that allegations of bias against a judicial officer must be substantiated by clear and convincing evidence… bias is a serious allegation, and the threshold for sustaining it is high. 20. Finally, invoking Article 159(2)(d) of the Constitution and Republic v Karoney & 8 Others Ex parte Kones [2015] eKLR, the respondents argued that the public interest and the rights of the 2nd Interested Party as complainant favoured allowing the concluded criminal trial to proceed to judgment without further delay. 21. In conclusion, the Respondents prayed that the Amended Chamber Summons be struck out as a nullity for want of leave, or in the alternative dismissed on its merits, that the unsubstantiated allegations of bias and collusion against the 1st and 2nd Respondents be struck out, and that costs be awarded to the 1st, 2nd and 4th Respondents jointly and severally. **2nd Interested Party's Submissions** 1. The 2nd Interested Party opened his submissions by characterising the application as misconceived, misleading, and "full of half-truths with non-disclosure of material facts and misrepresentation of the courts record and material facts," submitting that it is an abuse of the court process and fails to meet the settled threshold for the grant of leave and stay under Order 53 of the Civil Procedure Rules and the Law Reform Act. 2. He noted that the Applicant seeks to halt an advanced criminal trial in which nineteen prosecution witnesses had testified, both accused persons had testified, and the defence case had closed with over 136 exhibits produced, such that the matter is now pending submissions and judgment, describing the application as an attempt to derail a concluded proceeding under the guise of judicial review. 3. The 2nd Interested party posed the questions;- whether a competent judicial review application is properly before the Court absent grant of leave; whether the Applicant has satisfied the threshold for grant of leave and for leave to operate as a stay; whether the Applicant has demonstrated prejudice not addressable through ordinary appellate or revisionary mechanisms; and whether the application constitutes abuse of process and forum shopping. 4. On the first issue, the 2nd Interested Party submitted that no substantive judicial review application is before the Court, only an application for leave. He relied on Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 others [2017] eKLR, which held that "judicial review in Kenya has Constitutional underpinning in Articles 22 and 23 as read with Article 47 of the Constitution and as operationalized through the provisions of the Fair Administrative Action Act," and that "the fusion of common law judicial review remedies into the constitutional and statutory review remedies imply that Kenya has one and not two mutually exclusive systems for judicial review. 5. A party is at liberty to choose the common law Order 53 or constitutional and statutory review procedure. It is not fatal to adopt either or both." The Court there found that the original application before it, though grounded on Order 53, also cited constitutional articles, and held that "this correctly reflects the fusion of constitutional and common law judicial review in Kenya as one system for judicial review." 6. The 2nd Interested Party submitted that because the Applicant had moved by chamber summons under Order 53 and sections 8 and 9 of the Law Reform Act, leave remained a mandatory requirement, associating himself with Chigiti, J. in Mboroki v Local Authorities Pension Trust [2026] KEHC 3884 (KLR), which in turn cited Bhojwani & another v Director of Public Prosecutions & another [2025] KEHC 16305 (KLR), holding that with the enactment of the Fair Administrative Action (Judicial Review Procedure) Rules, 2024 a new legal regime now exists giving full effect to Article 47 of the Constitution and the Fair Administrative Action Act, 2015, under which an Applicant alleging that their right to fair administrative action has been violated, denied, or threatened may directly institute judicial review proceedings without the necessity of first seeking leave of the Court. However, Chigiti, J. observed that "in the instant suit the Applicant moved the court under the Fair Administrative Action Act, 2015 but through a Notice of Motion. This places the Application under the Procedures of Order 53 of the Civil Procedure Rules where leave is a mandatory requirement, further noting that in that case the Applicant... did not invoke the provisions of The Fair Administrative Action Act. 7. On that basis, the 2nd Interested Party submitted that only the Applicant's prayer for leave, including that such leave operate as a stay, is properly before the Court, and that absent leave, no substantive judicial review application exists before the Court, and the Court lacks jurisdiction to entertain or determine any further substantive relief sought by the Applicant. 8. On the threshold for leave, reliance was placed on Matiba v Attorney General, Nairobi H.C. Misc. Application No. 790 of 1993 (Bosire, Mbogholi-Msagha & Oguk, JJ), explaining that leave exists to exclude frivolous or vexatious applications, and on Republic v Land Dispute Tribunal Court Central Division and Another Ex parte Nzioka [2006] 1 EA 321, where Nyamu, J. held that leave should be granted, if on the material available the court considers, without going into the matter in depth, that there is an arguable case for granting leave and that leave stage is a filter whose purpose is to weed out hopeless cases at the earliest possible time, thus saving the pressure on court and needless expenses for the applicant by allowing malicious and futile claims to be weeded out or eliminate so as to prevent public bodies being paralysed for months because of pending court action which might turn out to be unmeritorious. 9. The 2nd Interested Party argued that the Applicant had failed to establish an arguable case, contending that the Applicant's case rested on an incomplete and misleading presentation of facts, having failed to disclose that the 2nd Respondent had already been transferred and the file reallocated to the 1st Interested Party before the ruling of 20th January 2026, and that the subordinate court was thereafter bound to give effect to that ruling pursuant to Article 165(6) of the Constitution. 10. The 2nd interested party further submitted that the issues raised were not new, having been substantially canvassed before the 1st Respondent through oral applications on 26th and 31st March and 9th April 2026, culminating in a reasoned ruling on 14th April 2026 that expressly addressed all the issues currently being raised before this honourable court. 11. The 2nd interested party disputed the characterisation of the 1st Respondent as sitting on appeal over the 1st Interested Party's directions, noting that the file was initially reallocated to the 1st Interested Party through an administrative case-management process without the involvement of the litigants, and that on 21st January 2026 the court merely directed that proceedings be typed and fixed a mention date. No substantive hearing took place and no judicial determination was made affecting the rights or obligations of the parties. 12. Further, he submitted that the Applicant's complaint therefore amounts to dissatisfaction with the outcome of that ruling, rather than any illegality or procedural impropriety in the manner in which it was reached. 13. On the recusal application, the 2nd Interested Party submitted that the Applicant's claim of having been denied an opportunity to prosecute it was both false and misleading, since the ruling of 14th April 2026 confirmed the application was not withdrawn as alleged and remained available for hearing before the 2nd Respondent, yet the Applicant, despite appearing before the 2nd Respondent on diverse dates including 22nd April 2026, failed to prosecute it, such that a court cannot compel a litigant to prosecute his own application, and any resulting delay cannot be attributed to the court or to the opposing parties. 14. He further submitted that new contempt allegations raised in the Supplementary Affidavits were improperly before the Court, since the Court had directed that any contempt issue be pursued through a formal application, which the Applicant never filed, and that in any event a contempt claim requires a clear and unambiguous court order binding upon the person against whom contempt is alleged, knowledge of that order by the alleged contemnor, and deliberate and wilful disobedience of the said order, none of which had been demonstrated. 15. On the alleged consent order before the 1st Interested Party, the 2nd Interested Party submitted that no such consent was recorded, relying on Republic v Registrar of Societies Ex-Parte Justus Nyangaya & 3 others [2005] KEHC 1854 (KLR), which held that it is not possible in law for a consent order or letter to confer Jurisdiction on the Deputy Registrar where it is not specifically conferred on him. 16. In other words, jurisdiction cannot be conferred by consent, citing Halsbury's Laws of England for the proposition that parties cannot by agreement or otherwise confer jurisdiction upon or oust the jurisdiction of a court. 17. He argued that any alleged consent could not lawfully override the express ruling of the High Court directing that the matter proceed before the 2nd Respondent, and relied on Mativo, J. in Republic v RO Mbogo & another; Alfred Ndemo Nyakundi (Interested Party) Ex parte Diana Mutheu & another [2020] KEHC 8482 (KLR), who held that judicial accountability like judicial independence has thus come to be recognized as a bulwark of the Rule of Law, and that what constitutes abuse of judicial authority is improper/inappropriate use of the power of a judicial office. This must be differentiated from a judicial officer's error in law which can only be the subject of appeal. 18. On stay, the 2nd Interested Party submitted that the grant of stay is discretionary and not automatic upon grant of leave, and that the proceedings sought to be stayed had already concluded, such that what is pending is submissions and judgement. 19. He relied on Adan Abdullahi Kadiye & Another v Ex Parte Yussuf Muhumed Abdi [2015] KEHC 2900 (KLR), citing George Philip M Wekulo v The Law Society of Kenya & Another, Kakamega HCMISCA No. 29 of 2005, for the holding that where the decision sought to be quashed has been implemented leave ought not to operate as a stay since in that case there may be nothing remaining to be stayed. It is only in cases where either the decision has not been implemented or where the same is in the course of implementation that stay may be granted. 20. On exhaustion, the 2nd Interested Party submitted that the Applicant's complaints relate to directions, rulings, and conduct of proceedings falling squarely within the appellate and revisionary jurisdiction of the High Court, and that the Applicant, having already invoked the Court's supervisory jurisdiction in Criminal Revision No. E145 of 2025 and obtained substantive directions, cannot now contend that there exists no alternative remedy available to address its grievances. 21. On abuse of process and forum shopping, reliance was placed on Satya Bhama Gandhi v Director of Public Prosecutions & 3 others [2018] KEHC 6100 (KLR), which held that situations giving rise to abuse of court process include instituting a multiplicity of actions on the same subject matter, against the same opponent, on the same issues, instituting different actions between the same parties simultaneously in different court even though on different grounds, and cases where an Application for adjournment is sought by a party to an action to bring another Application to court for leave to raise issue of fact already decided by court below. 22. The 2nd Interested Party submitted that the Applicant sought to relitigate matters already conclusively determined, and pointedly observed that the Applicant had joined the very judicial officer before whom he wished the matter heard as an Interested Party, while designating as Respondents the judicial officers whose decisions were adverse to him an approach said to be wholly inconsistent with the constitutional requirement of judicial impartiality" and bearing "the hallmarks of forum shopping. 23. In conclusion, the 2nd Interested Party submitted that the Applicant had failed to meet the threshold for grant of leave, had failed to demonstrate any arguable case founded on illegality, irrationality, procedural impropriety, or excess of jurisdiction, had shown no exceptional circumstances warranting stay, and had not demonstrated prejudice incapable of redress through ordinary appellate or revisionary mechanisms. He accordingly prayed that the Chamber Summons application be dismissed in its entirety with costs to the Respondents and Interested Parties. **ANAYLYSIS AND DETERMINATION** 1. In this matter the applicant basically challenges the decision of thelearned Hon Chief Magistrate Lucas Onyina 1st Respondent committing the trial of the matter in the lower court to the Hon. Dolphina Alego 2nd respondent who has since been transferred to the ELRC. 2. The applicant contends that the Hon Chief Magistrate committed jurisdictional error by removing the matter from the 1st Interested Party’s court and reassigning it to the 2nd Respondent who according to the applicant had no jurisdiction to hear criminal matter since she is now deployed to the Employment and Labour Relations court. 3. The applicant contended that on that ground alone the proceedings that were conducted before the Hon. Dolphina Alego SPM should be set aside. The applicant placed reliance on the Court of Appeal's decision in **Chengo & 2 others v Republic** **[2015] KECA 756 (KLR**), which held that "the law envisages that the judges of the two specialized courts should be different from judges of the High Court in terms of experience and specialization," and asked rhetorically, "can it be said that justice would be served to an appellant when a judge whose only flair is either in ELRC or ELC is suddenly empanelled by the Chief Justice to hear a criminal appeal?" The Court further held that "having been so appointed by the President, the Chief Justice or indeed any other entity cannot lawfully move him to hear matters reserved for the High Court," adding that "the converse is again true, judges appointed to the High Court and ELRC have no constitutional and statutory mandate to deal with ELC matters." 4. On the question of jurisdiction of the 2nd respondent this court disagrees with the position taken by the applicant for the reason that the Hon. Magistrate is still a Magistrate under the Magistrate Courts act and does not cease to exercise her jurisdiction over criminal matters by virtue of deployment. 5. A clear distinction needs to be drawn between the jurisdiction exercised by judges of the ELRC and the Magistrates serving in that Division. Whereas the Judges exercise jurisdiction limited to their appointment as envisaged under Article 162 (2) of the Constitution. 6. The Magistrates are appointed under the Judicial Service Act and the Magistrate’s Courts Act no. 26 of 2015. The deployment of a Magistrate from the mainstream Magistrates Courts to the courts that are subordinate to the courts of Equal Status does not divest such a judicial officer of the jurisdiction acquired at the time of appointment as a judicial officer. 7. If it were to be so, the judicial officers serving in those courts would require fresh appointment and revocation of their initial appointment. The 2nd Respondents appointment as a Magistrate was not revoked upon transfer thus, the 2nd respondent retained the jurisdiction to hear and determine those matters that she was handling before the transfer. It would have been different had she not been transferred but appointed to serve in those courts in which case the jurisdiction would be limited to matters specific to her appointment. The argument by the applicant therefore fails. 8. The second issue raised by the applicant was that the 1st Respondent had no jurisdiction to reallocate a matter from the 1st interested party to the 2nd Respondent. 9. The argument by the applicant is self -defeating in that it was the 1st Respondent who allocated the matter to the 1st interested party upon the transfer of the Hon Dolphina Alego SPM to the ELRC thus if he had authority to allocate the matter to the 1st Interested party it cannot therefore be argued that he could not move the matter from the 1st Interested party. 10. Section 79 of the Criminal Procedure Code provides;- Transfer of cases between magistrates ;- A magistrate holding a subordinate court of the first class— **(a)** may transfer a case of which he has taken cognizance to any magistrate holding a subordinate court empowered to try that case within the local limits of the first-class subordinate courts’ jurisdiction; and **(b)** may direct or empower a magistrate holding a subordinate court of the second class who has taken cognizance of a case and whether evidence has been taken in that case or not, to transfer it for trial to himself or to any other specified magistrate within the local limits of his jurisdiction who is competent to try the accused and that magistrate shall dispose of the case accordingly. [Act No. 17 of 1967, s. 27, Act No. 13 of 1982, First Sch., Act No. 5 of 2003, s. 66.] 1. The 1st Respondent as the head of station was within his power both judicially and administratively to re-assign the matter to the Hon Dolphina Alego following the representation made to him by the advocate for the 2nd Interested party. 2. The Chief Magistrate having been moved by a party and considering the stage at which the proceedings had reached, acted within the law by requiring that proceedings continue before the trial magistrate who had taken the entire prosecutions evidence during the trial before her transfer. 3. The only thing that the 1st Respondent may be faulted for is the fact that upon receiving the request by the 2nd interested party he did not require all the parties to be present when he made the orders sending the matter back to the Hon. D Alego who had been in conduct of the matter before its transfer to Hon. Ndombi SPM the 1st Interested party. 4. However, the fault on the part of the 1st Respondent did not render the movement of the file from the 1st interested party back to the 2nd respondent invalid because the court having reviewed the record does not find any prejudice that the applicant stood to suffer. 5. In any case this court had already issued orders that the matter proceeds before the 2nd Respondent before whom the applicant was required to prosecute his intended application for recusal. The applicant therefore ought to have appeared before the learned Hon. D Alego SPM and prosecuted the application for recusal if he was still bent on pursuing that course. 6. This court was informed by the respondent’s counsel and counsel for the 2nd Interested party that at the resumed hearing before the 2nd Respondent the applicant did not prosecute the application but chose to move to this court. 7. The orders of this court were specific and that still remains the position that if the applicant still believes that he cannot get justice before the 2nd respondent, the recourse open to him is not to shun the court and avoid dealing with the issue of recusal before the judicial officer as per the orders of this court. In any event that should have been first order of business at the resumed hearing before the Hon. Alego Dolphina SPM. 8. The respondents and the 2nd interested parties have complained that the applicant moved this court un procedurally and therefore is not deserving of any relief. 9. In their view, the applicant should have gone to the Judicial Review Division of this court if the intention was to quash the proceedings in the lower court and even if he was to move this court for relief, he required leave of court to do. 10. The court heard the applicant describe his application before this court as a judicial review application falling with Article 23 of the Constitution thus according to him, he did not require to travel the route of obtaining leave as contemplated under Order 53 of the civil Procedure Rules this being a criminal matter. 11. This court has examined the application carefully and indeed it does appear that what the applicant sought to cure are what he considers procedural maladies in the lower court in a Criminal trial. The applicant could not therefore having come to this court for redress be driven from the seat of justice in light of the provisions of Article 23 of the Constitution. 12. The thrust of the application in my view seeks to redress procedural lapses that the applicant contends were committed by the respondents exercising Criminal law jurisdiction. 13. This court under Article 165 of the Constitution exercises supervisory jurisdiction over the respondents and thus cannot be said to lack jurisdiction to entertain the instant application with or without leave. 14. The nature of a criminal trial is that it may result in the loss of freedom or liberty by an individual thus everything happening in connection with a trial before a court that is under the supervisory jurisdiction cannot escape this courts scrutiny to ensure that the interests of justice are protected. 15. Articles 23, 48, 50, 159 and 165 (6) of the Constitution as read together with Sections 362 and 364 of the Criminal Procedure Code confer upon this court very extensive powers to remedy procedural irregularities if any in a trial. 16. The High Court once a matter is reported to it cannot therefore shut its eyes to any alleged irregularities or impropriety and it would amount to a dereliction of judicial duty to lock out a litigant on account of procedural technicalities yet they have approached the court to assist in remedying procedural lapses that they consider important and central to the just determination of a criminal trial. 17. In **KUNGA v. REPUBLIC** [HIGH COURT OF KENYA AT NAIROBI and 8 April 1975.] (79/75) CRIMMINAL APPLICATION 62 OF 1975. Kneller,J. held that; - “My view is that in procedural matters the High Court can do anything that is not forbidden.” 18. Similarly, this court holds the firm view that once the applicant had arrived before this court, the court was duty bound to hear him and offer direction in the manner the hearing before the trial court ought to be proceeded with. 19. In **Anita Kushwaha v Pushap Sudan Transfer Petition (C) No. 1343 Of 2008 With 12 others Supreme Court of India Civil/Criminal Original Jurisdiction T.S. Thakur .C.J.I, F.Mkalifulla S.C.J, A.K. Sikri S.C.J, S.A. Bobde S.C.J & R. Banumathi S.C.J July 19, 2016 the court held ;- “**Access to justice was and had been recognised as part and parcel of right to life in India and in all civilized societies around the globe. The right was so basic and inalienable that no system of governance could possibly have ignored its significance, leave alone afford to have denied the same to its citizens. The Magna Carta, the Universal Declaration of Rights, the International Covenant on Civil and Political Rights, 1966, the ancient Roman jurisprudential maxim of ubi jus ibi remedium, the development of fundamental principles of common law by judicial pronouncements of the courts over centuries past had all contributed to the acceptance of access to justice as a basic and inalienable human right which all civilized societies and systems recognised and enforced.” 20. The respondents and the 2nd interested party have urged this court to drive the applicant from the seat of justice because he did not obtain leave before commencing these proceedings. This court declines that invitation for it would be a denial of justice to the applicant and that by entertaining the applicant the respondents and 2nd interested party have not suffered any prejudice. 21. In any event, a party does not require leave to invoke the revisionary jurisdiction of this court. This court granted leave to the applicant to amend his initial Motion to include all the reliefs thus the pleadings before the court are on authority granted by the court. In **Lalji & another v Attorney General & 4 others (Civil Appeal 274 of 2014) [2018] KECA 856 (KLR) (19 January 2018) (Judgment)** the court held: ***“If follows logically that since the court has power to allow the amendment to the statement which contains the grounds on which relief is sought and the relief itself, then new grounds and reliefs can be introduced by amendment. A true construction of Rule 1(2) read together with rule 4(1) and 4(2) is that whereas a party is prohibited from relying on grounds of relief and the relief itself other than the ones contained in the statement, if leave to amend is granted, a party can amend the statement and rely on the additional grounds and seek additional reliefs. There is no requirement in the rules that a party seeking leave to amend the statement should make a fresh application for leave. A judge considering an application for leave to amend the statement exercises the same discretion as a judge to whom the application for leave is first made. Before granting leave to amend, he must exercise the discretion judicially and satisfy himself that the new grounds raised and the new reliefs sought by the amendment disclose an arguable case. Thus, an order granting leave to amend is ipso facto a grant of leave to seek judicial review on the basis of the additional grounds and to seek additional reliefs.*** ***24.The High court has taken the same view. In a ruling delivered by W. Korir, J. on 24th February 2011 in Republic v. Chief Land Registrar & Others, ex-parte James Njoroge Njuguna the learned judge adopted his own reasoning in Nairobi HC JR ELC 9 of 2012 Republic v. Commissioner of Lands and 2 others ex-parte Jimmy Mutinda where he said in part: “Once the court grants an applicant leave to amend a statement and the substantive notice of motion, the court has by that act, granted leave for an order of mandamus, prohibition or certiorari in the terms of the amended pleadings.” That it is not necessary to renew an application for leave to rely on new grounds or to additional reliefs where the court has power to allow an amendment of a statement, is supported by the English case of R. v. Bow Street Stipendiary Magistrate ex parte Roberts and others [1990] 3 ALL ER 447 and by the ruling of Chief Justice of Belize in the Queen v The Department of Environment & Belize Achand of Conservation – Non Governmental Organizations -Supreme Court of Belize Action No. 61 of 2002.*** 1. The amendmentsbrought out the true nature of the pleading before me. The application sought to correct procedural irregularities that the applicant thought necessary to attaining a fair hearing in the lower court as per Article 50 of the Constitution. 2. This matter brings to the fore an important aspect in the dispensation of justice in our courts following the transfer of judicial officers or judges who have had the advantage of hearing a matter to an advanced stage. The most sound judicial practice would be, that a judge or Judicial officer who hears the case is the one preferred to decide on it, unless parties elect otherwise, so that the accused is not prejudiced by having a successor in jurisdiction, who never had the opportunity to appreciate the evidence of witnesses by observing their demeanor, credibility, emotions and the like, deciding based on record, where such aspects of evidence may not be recorded in a detailed manner. See **Indian Supreme Court case of Nitinbhai Saevatilal Shah v. Manubhai Manjibhai Panchal, (2011) 9 SCC 638**. where a de novo hearing was viewed as one of the cardinal principles of Criminal trials guarding the rights of an accused person so that his case should be decided by the judicial officer who heard it. 3. If the courts do not proactively adopt this approach, then accused persons will continue to inundate courts with applications for de novo hearings which have the effect of slowing down the expeditious disposal of cases thus contributing to the ever -rising judicial backlog of cases. 4. In the instant matter therefore, this court finds that the order by the Chief Magistrate returning the trial court file to the Hon. D. Alego was proper taking into account the advanced stage the proceedings had reached thus the order is upheld. 5. The rider that this court issues is that whenever the Head of a station considers taking such action, notice should issue to the parties to avoid innuendos and aspersions being cast upon their actions whenever such jurisdiction under Section 79 of the Criminal Procedure Code is exercised. 6. The court in **ENM v SKM [2021] KEHC 6476 (KLR)** dealing with the issue of allocation of files in a station held: ***“Secondly, even assuming they had jurisdiction the allocation of matters in lower court is done by the Head of Station or designated Magistrate standing for Head of Station for good order and to avoid mischief and improprieties in handling of court work.”*** 1. The action by the 1st Respondent was therefore nothing out of the ordinary but the fact that it was done without involvement of all the parties it got us where we are today. This court must therefore intervene and provide direction. 2. In **Joseph Nduvi Mbuvi v Republic [2019] eKLR**, in which the court held: "In my considered view, the object of the revisional jurisdiction of the High Court is to enable the high Court in appropriate cases, whether during the pendency of the proceedings in the subordinate court or at the conclusion of the proceedings to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still ongoing, should be proceeded with. In other words, the High Court's revisionary jurisdiction includes ensuring that where the proceeding in the lower court has been legally derailed, necessary directions are given to bring the same back on track so that the trial proceeds towards its intended destination without hitches. Not only is the jurisdiction exercisable where the subordinate court has made a finding, sentence or order but goes on to state that it is also exercisable to determine the regularity of any proceedings of any such subordinate court as well." 1. The upshot of the above is that this matter shall proceed before the Learned Magistrate Hon. Dolphina Alego SPM and the applicant shall exercise the option of either tendering his defense and allow the proceedings to continue to the logical end and if the applicant still wishes to pursue the recusal motion, then the trial Magistrate shall hear them on that application as earlier on directed before any further proceedings. 2. It is so ordered. **DATED, SIGNED and DELIVERED VIRTUALLY at NAIROBI this 17th day of AUGUST 2026**. **A. M. MUTETI** **JUDGE** **In the presence of:** Habiba: Court Assistant Kinyanjui for the Applicant Mogere for the Respondent Kemunto for Miima for 2nd Interested Party