[2015] KEHC 8521 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT HOMA BAY

MISC. CRIMINAL APPLICATION NO. 19 OF 2015

BETWEEN

FRANCIS OTIENO JOSEPH…....………..APPLICANT

AND

REPUBLIC…………………….. RESPONDENT

RULING

The applicant is on trial at Ndhiwa Senior Resident Magistrate’s Court. He is facing a charge of assault in Ndhiwa SRM Criminal Case No. 363 of 2014. He has moved the court by a Notice of Motion dated 27th August 2015 under section 78(1) of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya) seeking transfer of the case from Ndhiwa Senior Resident Magistrate’s Court to Mbita Senior Resident Magistrates’s Court.

Section 78(1) of the Criminal Procedure Code provides that;

If upon the hearing of a complaint it appears that the cause of complaint arose outside the limits of the jurisdiction of the court before which the complaint has been brought, the court may, on being satisfied that it has no jurisdiction, direct the case to be transferred to the court having jurisdiction where the cause of complaint arose.

The applicant contends that the incident subject of the case occurred within the jurisdiction of Mbita Senior Resident Magistrate’s Court and that he comes from within a stone’s throw from that court hence the matter should be transferred to that court. The respondent contends that the matter was commenced before the establishment of the court at Mbita.

In my view, I do not find any reason to transfer the matter as it is clear that the applicant reported the complaint to Magunga Police Station on 9th July 2014 at which time it fell within the jurisdiction the Ndhiwa Court. Furthermore, the applicant did not raise this issue until the proceedings had reached an advance stage.

Although the applicant did not invoke the provisions of section 81 of the Criminal Procedure Code which empowers the High Court to transfer a criminal case from one subordinate court to another or to itself. I will deem the application as properly filed in the interests of justice and in order to completely deal with the applicant’s complaints. Section 81 of the Criminal Procedure Code states as follows;

81(1) Whenever it is made to appear to the High Court—

that a fair and impartial trial cannot be had in any criminal court subordinate thereto; or

that some question of law of unusual difficulty is likely to arise; or

that a view of the place in or near which any offence has been committed may be required for the satisfactory trial of the offence; or

that an order under this section will tend to the general convenience of the parties or witnesses; or

that such an order is expedient for the ends of justice or is required by any provision of this Code,

it may order—

that an offence be tried by a court not empowered under the preceding sections of this Part but in other respects competent to try the offence;

that a particular criminal case or class of cases be transferred from a criminal court subordinate to its authority to any other criminal court of equal or superior jurisdiction;

that an accused person be committed for trial to itself.

In Maina Kinyatti v Republic [1984]eKLR, the Court of Appeal considered the test to be applied in such a case and stated that, “Where the apprehension in the mind of the accused that he may not have a fair and impartial trial is of a reasonable character, there, notwithstanding that there may be no real bias in the matter, the facts of incidents having taken place calculated to raise such reasonable apprehension ought to be a ground for allowing a transfer.” The Court of Appeal further observed that it is the reasonableness of the accused person’s apprehension that is relevant and if the accused shows that his apprehension is reasonable then he has set out a clear case. The same test was applied in John Brown Shilenje v RepublicNairobi Cr. Appeal No. 180 of 1980 by Trevelyan J., who stated that the test of that of, “Reasonable apprehension in the applicants or any right thinking person’s mind that a fair trial might not be heard before the magistrate. Mere allegations will not suffice; there must be reasonable grounds for allegations.” The cases cited by the applicant’s counsel are to the same effect.

The applicant raised two broad arguments. First, he raised that issue that the investigating officer is biased and he may not receive a fair trial. He also states that the he had raised the issue with the office of the Director of Public Prosecutions but the office has failed to intervene. In my view the conduct of the investigation does not fall within the purview of section 81 of the Criminal Procedure Code unless the court itself is implicated in such conduct. I would further state that the issue of how the investigation is conducted is a matter that will go to the weight and credibility of the evidence hence my circumspection in commenting on the matters which will be part of the trial. Second, whether or not to prosecute the matter is within the province of the Office of the Director of Public Prosecution under Article 159 of the Constitution. As the Senior Assistant Director of Public Prosecution stated in court, he has reviewed the matter and decided that the same should proceed to its logical conclusion. I cannot intervene in such a decision in the application before me.

The only issue that concerns the court is whether the court in rejecting the application for adjournment acted in manner that prejudiced the applicant. The grant of an adjournment is a matter within the discretion of the court taking into account the particular circumstances of the case. The trial court is not bound to accede to an adjournment merely because the parties consent to it and neither can parties impose on the court an adjournment. The apprehension resulting from the refusal by the court to grant an adjournment cannot is not reasonable in the circumstances. I therefore find that the applicant’s application has not met the test I have set out above.

I also note that the matter before the subordinate court has proceeded substantially and if the applicant wishes to apply for the recall of witnesses, he may do so and the trial court will be obliged to consider such an application. Otherwise I find no basis to transfer the case and I therefore reject the application.

DATED and DELIVERED at HOMA BAY this 28th October 2015

D.S. MAJANJA

JUDGE

Mr Ongoso, Advocates instructed by the applicant.

Mr Oluoch, Senior Assistant Director of Public Prosecutions, instructed by the Office of the Director of Public Prosecutions for the respondent.