[2017] KEHC 6399 (KLR)
The court found that the applicant had demonstrated reasonable apprehension of bias at Keroka Law Courts, given the disqualification of the Principal Magistrate and prior involvement of another magistrate in a related criminal matter involving the applicant. The court held that, in the interest of justice and to...
Source-derived case information.
- Citation
- [2017] KEHC 6399 (KLR)
- Parties
- Plaintiff: Gladys Kemunto Aunga; Defendant: Charles Otaro Moseti; Defendant: County Government of Nyamira
- Court
- High Court
- Court Station
- High Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Case 15 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer of Suit
- Outcome
- Application allowed. Case transferred to Kisii Law Courts.
- Judges
- CB Nagillah
- Legal Topics
- Transfer of Suit, Jurisdiction, Impartiality of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Gladys Kemunto Aunga
Plaintiff
Charles Otaro Moseti
Defendant
County Government of Nyamira
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer of Suit
Legal Issues
- 1 Whether the suit should be transferred from Keroka Law Courts to Kisii Law Courts for hearing and determination.
- 2 Whether the applicant is likely to suffer prejudice if the matter remains at Keroka Law Courts.
- 3 Whether the interest of justice requires the transfer of the case.
Ratio Decidendi
The court found that the applicant had demonstrated reasonable apprehension of bias at Keroka Law Courts, given the disqualification of the Principal Magistrate and prior involvement of another magistrate in a related criminal matter involving the applicant. The court held that, in the interest of justice and to ensure impartiality, the suit should be transferred to Kisii Law Courts for hearing and determination. The court emphasized that the administration of justice must not only be done but must be seen to be done, and that the applicant's concerns about partiality were sufficient to warrant the transfer.
Court Disposition
Application allowed. Case transferred to Kisii Law Courts.
Orders
- Keroka PMCC No. 223 of 2015 is transferred to Kisii Law Courts for hearing and determination.
- The case shall be mentioned on 25th April, 2017 in the Chief Magistrate’s Court Kisii to fix a hearing date.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYAMIRA
MISC. CIVIL CASE NO 15 OF 2016
GLADYS KEMUNTO AUNGA........................................PLAINTIFF
V E R S U S
CHARLES OTARO MOSETI
COUNTY GOVERNMENT OF NYAMIRA..................DEFENDANTS
R U L I N G
This is an application to transfer this case, KEROKA PMCC NO. 223 of 2015 from Keroka to another court of coordinate jurisdiction for hearing and determination.
The Applicant’s Grounds of Appeal are as herein stated:
a) THAT I have been carrying out business within Keroka Town for a very long period of time.
b) During the period I was carrying on the business, I was allocated business spaces by the then Keroka Town Council.
c) When the County Government was established, I still continued to maintain the said business spaces.
d) The said business spaces have been allocated to other person(s) and therefore I have nowhere to do business yet that was my only source of livelihood.
e) My properties that were in the said business spaces were confiscated i.e. Kiosk with clothes by the officers of the County Government of Nyamira influenced by the then Town Administrator without justifiable or lawful cause.
f) Unless the orders sought herein are granted, I am likely to suffer prejudice because Keroka court has been compromised hence became partial.
g) In the circumstances, it is in the interest of justice that the orders sought herein be granted.
In her supporting Affidavit sworn on 23rd, November, 2016, she avers, inter alia:
That her case was first heard in Keroka Law Courts.
And that the Principal Magistrate hearing her case, disqualified himself from handling the case at her application.
That the other Magistrate had handled another Criminal case involving the applicant, in a case in Keroka 1406/2015.
That therefore, she seeks her case to be transferred to Kisii Law Courts for hearing and determination, as she claims she is unlikely to get justice in Keroka Law Courts.
Therefore, in the interest of justice, this case, Keroka PMCC No. 223 of 2015,be and is hereby transferred to Kisii for hearing and determination.
The case be mentioned on 25th April, 2017 in the Chief Magistrate’s Court Kisii to take a date for hearing.
Dated at Nyamira this 24th day of March, 2017.
C.B. NAGILLAH
JUDGE
In the presence of:-
Ombachi hold brief for Nyagwencha:for the Applicant
Konga:for the Respondent
Mercy:Court Clerk