[2013] KEHC 3654 (KLR)
The court found no merit in the application for transfer and retrial because the applicant had failed to attend court on several occasions without adequate explanation and had not offered any defence, leaving the lower court with no option but to close the defence case. The court emphasized that it was not sitting...
Source-derived case information.
- Citation
- [2013] KEHC 3654 (KLR)
- Parties
- Applicant: Erick Okinyo Nyakina; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Case 95 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer and Bond Reinstatement
- Outcome
- Application dismissed in part; bond reinstated.
- Judges
- HK Chemitei
- Legal Topics
- Transfer of Criminal Cases, Bond Reinstatement, Retrial Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erick Okinyo Nyakina
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer and Bond Reinstatement
Legal Issues
- 1 Whether the applicant is entitled to a transfer of the criminal case for retrial.
- 2 Whether the applicant's bond should be reinstated after cancellation for non-attendance.
Ratio Decidendi
The court found no merit in the application for transfer and retrial because the applicant had failed to attend court on several occasions without adequate explanation and had not offered any defence, leaving the lower court with no option but to close the defence case. The court emphasized that it was not sitting as an appellate court at this stage and that the applicant should finalize his case in the lower court and pursue an appeal if dissatisfied. However, in the interest of justice, the court ordered the reinstatement of the applicant's bond as before, allowing him to continue with his defence in the lower court.
Court Disposition
Application dismissed in part; bond reinstated.
Orders
- The application for transfer and retrial is dismissed.
- The applicant's bond is reinstated as before.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
High Court at Kisumu
Miscellaneous Criminal Case 95 of 2012 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif]
ERICK OKINYO NYAKINA …......................................................ACCUSED
VERSUS
REPUBLIC …......................................................................PROSECUTOR
RULING
The applicants application dated 27th November 2012 pray that the Criminal case number 472 of 2011 Kisumu be transferred to another court for retrial and that his bond be reinstated. His affidavit sworn on 26th November 2012 depones that he was never supplied with the witnesses statements during the hearing and he disputed the Ruling of 4th September 2012.
The State did not oppose the application.
I have perused the lower court's proceedings as well as the Ruling. I notice that the applicant's bond was cancelled for failing to attend court on 13th March 2012 and he only came back on 16th April 2012. He however offered no explanation or evidence to back up his indisposition.
This court at this juncture is not required to deal with this matter as though it is an appeal. The applicant has demanded a retrial.
I however on the face of the proceedings already undertaken see no reasons to order a retrial. He failed on four (4) occasions to offer any defence and the court was left with no other option but to close the defence case.
For now I do not see any merit in the application. The applicant should go back and finalize his case and if dissatisfied he can proceed to file his appeal to this court .
In the interest of justice however I shall order that his bond be reinstated as before .
Orders accordingly.
Dated, signed and delivered at Kisumu this 6th day of May 2013.
H.K. CHEMITEI
JUDGE
In the presence of:
…...................................for appellant
…...................................for the respondents
HKC/aao
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