[2013] KEHC 660 (KLR)
The court found that the applicant failed to provide any evidence to support the allegations against the presiding magistrate or to justify the lifting of the warrant of arrest. The application was deemed to be without merit and appeared to be an attempt to delay or frustrate the hearing of the criminal case. The...
Source-derived case information.
- Citation
- [2013] KEHC 660 (KLR)
- Parties
- Applicant: Francis Kaburu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Judgment Date
- 4 December 2013
- Case Number
- Miscellaneous Criminal Case 179 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Lift Warrant of Arrest and Transfer Criminal Case
- Outcome
- application dismissed
- Legal Topics
- Warrant of Arrest, Transfer of Proceedings, Abuse of Process
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Kaburu
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Lift Warrant of Arrest and Transfer Criminal Case
Legal Issues
- 1 Whether the warrant of arrest issued by the Mumias Court in Criminal Case No. 949 of 2012 should be lifted.
- 2 Whether the criminal case should be transferred to another court of competent jurisdiction.
- 3 Whether the application is an abuse of court process.
Ratio Decidendi
The court found that the applicant failed to provide any evidence to support the allegations against the presiding magistrate or to justify the lifting of the warrant of arrest. The application was deemed to be without merit and appeared to be an attempt to delay or frustrate the hearing of the criminal case. The court emphasized that unsupported allegations cannot form the basis for transferring a case or interfering with the trial process. Accordingly, the application was dismissed, and the trial was directed to proceed expeditiously before the Mumias Court.
Court Disposition
application dismissed
Orders
- The application dated 17.12.2012 is dismissed.
- The lower court file to be returned to Mumias court.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
MISC. CRIMINAL NO. 179 OF 2012
FRANCIS KABURU ::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT
V E R S U S
REPUBLIC ::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
R U L I N G
The application dated 17. 12. 2012 seeks an order that a warrant of arrest issued by the Mumias Court in Criminal Case No. 949 of 2012 be lifted. The applicant also seeks to have the case transferred to another court of competent jurisdiction. The application is supported by the affidavit of Francis Kaburu and clement Okello both sworn on the 17. 12. 2012.
Mr. Simasi informed the court that he was relying on the application as the same was not opposed by the State by way of replying affidavit. Mr. Okoth, State Counsel, informed the court that they were opposing the application and the applicant has to prove his claim.
I have gone through the record of the trial court as well as a similar Misc. application No. 143 of 2012. In the later application Justice Jaden deliberated on the application and dismissed it. That application was filed on 11. 10. 2012. The current application seems to have followed immediately after the ruling was delivered on the 6. 12. 2012. All the allegations raised in the supporting affidavit are not proved by any evidence but are merely intended to smear the character of the presiding magistrate. The applicant herein should undergo the hearing process and wait for the verdict of the court. Filing applications intended to frustrate the hearing of the case will not help the applicant. I do find that the current application lacks merit and there is no reason to transfer the suit from the trial court to any other court.
I do direct that the Magistrate in Mumias Court who is handling this matter should list the case for further hearing and ensure that the same is disposed of as soon as possible. The application dated 17. 12. 2012 is hereby dismissed. The lower court file to be returned to Mumias court.
DATED AT KAKAMEGA THIS 4TH DAY OF DECEMBER 2013
SAID J. CHITEMBWE
J U D G E