https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7685

Magutu v Republic (Miscellaneous Criminal Application E153 of 2025) [2026] KEHC 7685 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7685 (KLR) Republic of Kenya In the High Court at Kisumu Miscellaneous Criminal Application E153 of 2025 JM Omido, J May 28, 2026 Between James Moseti Magutu Applicant and Republic Respondent Ruling 1.The Applicant herein, vide his notice of motion dated 18th August, 2025 and presented under Article 50 of the Constitution and Sections 78 and 81 of the Criminal Procedure Code, Cap 75 Laws of Kenya seeks the following orders:a.[Spent].b.[Spent].c.That Nyando Criminal Case No. E624 of 2024 be transferred to Mavoko Law Courts for hearing and disposal.d.Any such order as is expedient for the ends of justice or is required by any provision of the Criminal Procedure Code.e.That costs of this application be in the cause. 2.The grounds upon which the Applicant’s motion is premised are in precis that the criminal proceedings are currently pending before the Magistrates’ Court at Nyando and are scheduled to proceed for hearing, notwithstanding that the alleged offences are said to have been committed within the jurisdiction of Mavoko Law Courts. The Applicant, who faces charges of stealing contrary to Section 268 as read with Section 275 of the Penal Code and uttering a false document contrary to Section 357(a) and (b) of the Penal Code, contends that after several delays since plea was taken, the matter is now set down for the hearing of the prosecution’s case. 3.It is further contended that the Applicant was unrepresented at the time of taking plea and prior to the filing of the present application and therefore did not appreciate the importance of the trial being conducted before a court of proper territorial jurisdiction. The Applicant expresses apprehension that, should the hearing proceed and the matter subsequently be transferred to Mavoko Law Courts, he would be compelled to recall witnesses, thereby occasioning unnecessary expense and inconvenience to both parties, costs which would not be recoverable. 4.The Applicant avers that the alleged stolen goods were taken from Softcare Kenya Limited, a company situated in Athi River within the jurisdiction of Mavoko Law Courts, and that the complainant is likewise based in Athi River within Mavoko Township. It is also stated that the Applicant is a resident of Nairobi City County, and that eight out of the thirteen prosecution witnesses are residents of Athi River and employees of the complainant, while all of the Applicant’s intended witnesses are based in Nairobi and Athi River. 5.In those circumstances, it is argued that requiring attendance before the Nyando Court would occasion undue hardship and prejudice, whereas it would be more convenient for all witnesses to attend court in Mavoko. 6.The Applicant further invokes the right to a fair and impartial trial under Article 50 of the Constitution, asserting that a proper determination of the case may necessitate a view of the place where the alleged offence was committed or its immediate vicinity. 7.In that regard, the Applicant indicates an intention to apply for a site visit, which would be logistically impractical if the trial remains in Nyando while the locus in quo is in Athi River within Mavoko. 8.Accordingly, it is contended that a transfer of the proceedings to Mavoko Law Courts would better serve the ends of justice and facilitate a fair and satisfactory trial. 9.The application is supported by the Applicant’s affidavit that he swore on 18th August 2025. 10.The Applicant deposes that the criminal proceedings are presently pending before the Magistrates’ Court at Nyando, which is set to proceed with the hearing, thereby allowing the Respondent to prosecute its case without the benefit of crucial contextual evidence relating to the place of the alleged offence in Mavoko. He has annexed to his affidavit a copy of the prosecution file supplied to him. 11.The Applicant further deposes that, following several delays since the taking of plea, the matter in now ripe for the hearing of the prosecution’s case. He states that he was not represented by Counsel at the time of taking plea and prior to the filing of the present application, and was therefore unaware of the possibility of seeking a transfer of the case to Mavoko, where the alleged offences are said to have occurred. 12.The Applicant contends that upon subsequently retaining Counsel, he was advised that it was necessary, in order to secure a fair trial, that Nyando Criminal Case E624 of 2024 be transferred to a court with proper territorial jurisdiction, which advice he believes to be sound. 13.The Applicant expresses apprehension that, should the trial proceed and a transfer thereafter be ordered, he would be compelled to recall witnesses, thereby occasioning additional expense and inconvenience to both himself and the State. 14.He deposes that the goods alleged to have been stolen were taken from Softcare Kenya Limited, a company situated in Athi River within the jurisdiction of Mavoko Law Courts and that the complainant is likewise based in Athi River within Mavoko Township. 15.The Applicant urges the Court to facilitate his right to a fair trial by ordering the immediate transfer of Nyando Criminal Case E624 of 2024 to Mavoko Law Courts, which he asserts has the requisite territorial jurisdiction. He further deposes that, from the witness statements supplied by the prosecution, eight of the prosecution witnesses are residents of Athi River and employees of the complainant company. 16.The Applicant invokes his right to a fair and impartial trial under Article 50 of the Constitution, contending that a proper determination of the case may necessitate a view of the place where the alleged offence was committed or its immediate vicinity. He adds that any costs likely to be incurred if the hearing proceeds and the matter is subsequently transferred to Mavoko for a de novo trial would not be recoverable from either this Court or the trial court in Nyando. 17.The application is resisted and to that end, the Respondent filed a replying affidavit sworn by Police Constable Monica Anyango, on 7th November, 2025. 18.The officer depones that she is the current investigating officer in Nyando Criminal Case No. E624 of 2024, having taken over the matter from a retired officer. 19.The officer contends that the application is misconceived, lacks merit and is intended to prejudice the Prosecution and the complainant. She deposes that the genesis of the matter lies in a contractual arrangement wherein the Applicant, operating Service Line Logistics Limited, was engaged by Softcare Kenya Limited to transport goods from Athi River to Kisumu, which goods, valued at Ksh.3,319,960/-, were loaded onto a specified truck on 8th August, 2024 but never reached their intended destination, having allegedly been diverted and stolen in transit. 20.The officer states that the loss was reported at Ahero Police Station within Nyando jurisdiction on 10th August, 2024, prompting investigations by officers based at the said station, including the issuance of a circulation signal and that the Applicant was subsequently arrested in Eldoret and charged with three counts, namely stealing, making a document without authority and uttering a document with intent to defraud. 21.The Respondent, through the officer, asserts that the Applicant’s contention that Mavoko Law Courts has exclusive territorial jurisdiction is erroneous and maintains that Nyando Law Courts has lawful and concurrent jurisdiction over the matter pursuant to Section 75 of the Criminal Procedure Code, which governs offences committed in the course of a journey. 22.It is deposed by the investigator that the principal offence of stealing occurred between Nairobi and Kisumu, thereby constituting a “journey offence,” and that the goods in question were destined for Kisumu, which falls within the jurisdiction of Nyando Law Courts, thus vesting jurisdiction in that court. 23.The deponent further avers that the alleged criminal act crystallized upon the failure of the goods to reach Kisumu, and that Nyando’s jurisdiction is therefore firmly grounded in statute rather than convenience. It is also contended that the additional charges relating to making and uttering a false document are properly joined to the main charge for purposes of judicial time economy, given their close nexus to the alleged theft and the transportation arrangement for goods destined for Kisumu. 24.The Respondent, through the officer, disputes the Applicant’s assertion that the balance of convenience favours a transfer to Mavoko, characterizing the application as forum shopping and maintaining that Nyando is the most appropriate forum for the ends of justice. 25.It is deposed that the complainant, who has already testified as PW1, and a number of civilian witnesses reside within Kisumu and Nyando, while others are based in Nairobi, and that the Applicant’s claim that the majority of witnesses are from Athi River is inaccurate and misleading. 26.The deponent emphasizes that the investigations were conducted in Nyando and that the police file originates from that jurisdiction, with the principal police witnesses, including the investigating and arresting officers, all attached to Ahero Police Station. 27.It is further stated that transferring the matter to Mavoko would require the relocation of the entire Nyando investigation team for the duration of the trial, thereby imposing an unnecessary and costly burden on the Prosecution and the administration of justice. 28.The investigator dismisses the Applicant’s contention regarding the recall of witnesses as misplaced, noting that the responsibility for calling and recalling witnesses lies with the Prosecution, which has raised no such concern. 29.The deponent also rejects the Applicant’s assertion that a site visit would be necessary, terming it untenable on the basis that the alleged offence occurred along a mobile journey and that the remaining charges are documentary in nature, rendering any visit to Athi River unnecessary. 30.It is further deposed that the Applicant resides in Eldoret, which lies outside both Nyando and Mavoko jurisdictions, and that the application for transfer is self-serving and intended to prejudice the complainant. The Respondent maintains that the Applicant will not suffer any injustice if the application is dismissed, as he will still be afforded a fair trial before a court of competent jurisdiction. 31.In conclusion, the deponent reiterates that Nyando Law Courts is the proper venue, having lawfully acquired jurisdiction and that the balance of convenience, taking into account the location of the complainant, witnesses and investigative team, favours the matter proceeding in Nyando, and accordingly prays that the application be dismissed with costs. 32.In his supplementary affidavit sworn on 13th November, 2025 the Applicant deposes that although the matter was reported at Ahero Police Station within Nyando jurisdiction, the complainant is Softcare Kenya Limited, a company based in Nairobi, while the report was made by its transport manager stationed at the company’s headquarters in Athi River. 33.The Applicant further avers that, on the basis of the prosecution’s own evidence, including witness statements and the investigating officer’s account, the truck and goods subject of the alleged offence never passed through Ahero or any part of Nyando County. 34.The Applicant maintains that the request for transfer of Nyando Criminal Case No. E624 of 2024 to Mavoko Law Courts is founded on the assertion that Mavoko is the proper forum for the trial, and not on any claim of superior jurisdiction as alleged by the Prosecution. He further contends that Section 75 of the Criminal Procedure Code on “journey offences” does not apply in the circumstances of this case, arguing that neither the accused nor the subject motor vehicle ever traversed Nyando jurisdiction during the alleged journey, and that the accused only came within Nyando jurisdiction upon arrest and subsequent transportation to Ahero Police Station. 35.The Applicant also avers that the mere fact that the goods were destined for Kisumu does not automatically confer jurisdiction upon Nyando Law Courts, particularly where the goods are said to have remained within the Nairobi area and never physically passed through Nyando. 36.The Applicant sets out, by reference to witness statements, the residences of the prosecution witnesses and contends that the majority of them are based in Athi River, Mlolongo, Nairobi, Kitengela and surrounding areas, which are all proximate to Mavoko, with only a minority residing in Kisumu or Nyando, and therefore asserts that approximately ten out of twelve witnesses are within or near the Mavoko jurisdiction. 37.The Applicant further depones that the original investigating officer has since retired, and that the current officer merely took over the investigation file, thereby indicating that there is no ongoing investigative team based in Nyando whose relocation would be necessary. He contends that the suggestion that an entire police station would need to be transferred to Mavoko is misleading, as the investigation had been concluded prior to the change of officers. He states that he is a resident of Nairobi, Kenya. 38.The application was canvassed by way of brief oral submissions from both parties. Learned Counsel for the Applicant and the Respondent did not introduce any substantially new factual material beyond what was already contained in their respective affidavits and supporting documents, but instead largely adopted, highlighted and reiterated the averments previously set out therein. 39.In the circumstances, the Court considers that the substance of the parties’ positions is sufficiently captured in the filed affidavits, and it is therefore unnecessary to reproduce the oral submissions in detail, as doing so would serve no useful purpose in the determination of the issues arising for resolution. 40.Having carefully considered the application, the affidavit in support thereof and the replying affidavit, I discern the issue that arise for determination to be as follows:a.Whether this Court is properly seized of jurisdiction under Sections 78 and 81 of the Criminal Procedure Code and Article 50 of the Constitution to transfer Nyando Criminal Case No. E624 of 2024 to Mavoko Law Courts, and whether Nyando Law Courts is a proper forum to hear and determine the case in light of the applicable principles on territorial jurisdiction, including Section 75 of the Criminal Procedure Code on “journey offences.”b.Whether the Applicant has established sufficient grounds to warrant the transfer of the proceedings on account of the right to a fair trial under Article 50 of the Constitution, including considerations of locus in quo, convenience of witnesses and the overall interests of justice and balance of convenience.c.What orders should be made as to costs and any other consequential directions. 41.I will proceed to address and determine the issues seriatim. 42.The first issue for determination is whether this Court has jurisdiction to order transfer of the criminal proceedings. 43.There is no dispute that this Court is properly vested with jurisdiction under Sections 78 and 81 of the Criminal Procedure Code to transfer criminal proceedings from one subordinate court to another. The existence of jurisdiction, however, is distinct from the exercise of discretion. 44.The Court of Appeal in Githunguri v Republic [1985] KLR 91 affirmed that judicial discretion must be exercised judiciously and on sound legal principles, not capriciously or on the basis of convenience alone. 45.Similarly, in Kariuki v Republic [1984] KLR 809, the Court of Appeal held that transfer of criminal proceedings is not granted as a matter of course, but only where sufficient cause has been shown to justify such an exceptional order. 46.Accordingly, while this Court has the power to transfer proceedings, such power is discretionary and must be exercised sparingly and upon demonstration of cogent grounds. 47.The second issue for me to address and determine is whether sufficient grounds have been established to warrant transfer. 48.The Applicant principally anchors his application on alleged lack of territorial jurisdiction, convenience of witnesses and the need for a fair trial under Article 50 of the Constitution. 49.On the question of jurisdiction, the Respondent has demonstrated that the alleged offence relates to goods transported in the course of a journey from Nairobi to Kisumu and reliance has been placed on Section 75 of the Criminal Procedure Code. This provision allows a court within whose jurisdiction goods in transit pass, or were intended to pass, to assume jurisdiction. 50.The Respondent maintains that Nyando Court is properly seized of the matter on that basis. The Court is satisfied that at this interlocutory stage, it cannot conclusively determine contested factual jurisdictional assertions, as that is a matter for the trial court upon evaluation of evidence. 51.On the issue of convenience of witnesses, the Applicant contends that most of the witnesses are based within Athi River and the surrounding areas. However, the Court notes that this consideration is not, in law, determinative of an application for transfer of proceedings. In any event, the witnesses referred to by the Applicant are Prosecution witnesses, and it is the responsibility of the Prosecution, and not the Applicant, to secure and present its witnesses before the trial court. 52.In the case of Republic v Inspector General of Police ex parte Titus Kigen [2015] eKLR, the Court held that logistical convenience of witnesses does not, without more, constitute a sufficient basis for interference with prosecutorial arrangements or the designated trial venue. 53.Further, the Applicant’s invitation for this Court to interrogate where evidence will be tendered, how witnesses will testify and whether a site visit will be necessary, amounts to a request for this Court to pre-empt evidentiary issues reserved for the trial court. This is impermissible. As was stated in Okungu v Republic [2016] eKLR, courts dealing with interlocutory applications must avoid delving into matters of evidence properly reserved for trial. The Court held as follows:“It is not the duty of a court at the interlocutory stage to examine or weigh the evidence to be adduced at the trial. That function lies squarely with the trial court.” 54.The same principle was reiterated in Republic v Chief Magistrate’s Court Mombasa ex parte Ganijee & Another [2002] 2 KLR 703, where the Court held that pre-trial determinations must not prejudice or anticipate the outcome of the substantive hearing. 55.In the present case, the Court finds that the Applicant’s concerns regarding witness distribution, evidentiary convenience and alleged need for a locus in quo visit or inspection are matters that fall squarely within the trial court’s purview. They cannot form the basis for transfer at this stage. 56.Finally, on the constitutional argument under Article 50, the Court is satisfied that no violation or real likelihood of prejudice has been demonstrated. The mere fact that witnesses reside in different locations does not, without more, amount to a denial of a fair trial. 57.The third issue for determination is whether the application should be allowed. 58.Having found that although this Court is vested with jurisdiction to transfer proceedings but that the Applicant has not demonstrated sufficient or exceptional grounds to justify the exercise of that discretion, the application cannot succeed. 59.Being of the persuasion above, I find no merit in the Applicant’s notice of motion dated 18th August 2025. The same is hereby dismissed. 60.As the Applicant’s motion was in respect of a criminal case, I make no order as to costs. 61.This file is hereby closed. 62.It is so ordered. DELIVERED (VIRTUALLY) DATED AND SIGNED THIS 28TH DAY OF MAY, 2026.JOE M. OMIDOJUDGEFor Applicant: Mr. Mwangale.Respondent: Ms. Muema.Court Assistants: Mr. Juma.