[2019] KEHC 1018 (KLR)
The court found that the applicant had been supplied with witness statements prior to the retrial and had been given the opportunity to cross-examine witnesses. The record showed that the applicant's plea was taken, witnesses testified, and the applicant was granted bond to seek medical treatment. There was no...
Source-derived case information.
- Citation
- [2019] KEHC 1018 (KLR)
- Parties
- Applicant: John Moi Onditi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 61 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Transfer of Criminal Case
- Outcome
- application dismissed
- Judges
- REA Ougo
- Legal Topics
- Transfer of Criminal Cases, Allegations of Judicial Bias, Fair Trial Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Moi Onditi
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Transfer of Criminal Case
Legal Issues
- 1 Whether the applicant has demonstrated sufficient grounds for transfer of his criminal case to another court.
- 2 Whether there is evidence of bias or unfairness by the trial magistrate warranting transfer.
- 3 Whether the applicant has been accorded a fair trial in the current proceedings.
Ratio Decidendi
The court found that the applicant had been supplied with witness statements prior to the retrial and had been given the opportunity to cross-examine witnesses. The record showed that the applicant's plea was taken, witnesses testified, and the applicant was granted bond to seek medical treatment. There was no evidence of bias or unfairness by the trial magistrate, nor any indication that the applicant had raised a formal complaint before the trial court. The court concluded that the applicant was attempting to forum shop and had not demonstrated any sufficient grounds for transfer of the case. Accordingly, the application for transfer was dismissed and the applicant was ordered to return...
Court Disposition
application dismissed
Orders
- The application for transfer is dismissed.
- The applicant shall be returned to Ogembo Law Court for his defence hearing.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
MISC. CRIMINAL APPLICATION NO.61 OF 2019
JOHN MOI ONDITI.....................................................................APPLICANT
-VERSUS-
REPUBLIC................................................................................RESPONDENT
RULING
1. The applicant seeks to have his case Criminal Case No.509 of 2017 transferred to Ogembo Law Courts to another court at Kisii Law Court. His reasons for the said application are that he was forced to cross-examine by force and that he sought statements and he was not given. He states that he sought to be taken for treatment and that his life is in danger. That the trial magistrate is very harsh and did not record his requests down and that there is no transparency in the court.
2. The prosecution opposed the application stating that the applicant was sent back to Ogembo Law Court for a retrial and that the applicant had been supplied with the statements before the retrial.
3. I have gone through the trial court record. As per the proceedings the applicant’s case has been going on after Justice Majanja ordered a retrial. I have noted that the applicant was given statements on the 17/2/2017 in court during his first trial before re-trial. The trial is proceeding in the same file. It is assumed that he has the statements. It is the same trial with the same facts. The applicant alleges bias. The court proceedings clearly show that his plea was taken and witness testified. He had a chance to cross-examine all the witnesses.
4. The trial court has very clearly indicated the applicant’s conduct during the trial. He was even granted bond so that he could seek medical treatment. In my view so far the applicant has been accorded a fair trial. There is no bias shown nor is their indication that the applicant made a complaint before the trial court.
5. I find that the applicant is forum stopping. This application is dismissed. He shall be returned to Ogembo Law Court for his defence hearing. The Deputy Registrar shall return the lower court file to Ogembo Law court for further hearing and disposal. Mention before the trial court on the 4/12/2019 as indicated in the court file.
Dated, signed and delivered at Kisii this 5th day of November, 2019.
R.E. OUGO
JUDGE
In the presence of;
Applicant In person
Mr. Otieno Senior Prosecution Counsel Office of the DPP
Ms. Rael Court Clerk