[2016] KEHC 1167 (KLR)
The court held that the applicant had not exhausted the proper procedure, which requires an application for recusal or transfer to be made first before the trial magistrate. Only if the trial magistrate declines to recuse herself and the applicant is dissatisfied with that decision should the High Court be...
Source-derived case information.
- Citation
- [2016] KEHC 1167 (KLR)
- Parties
- Applicant: Joseph Kaviti; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 32 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Transfer Criminal Case
- Outcome
- application struck out
- Judges
- DO Chepkwony
- Legal Topics
- Transfer of Criminal Cases, Recusal of Judicial Officers
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kaviti
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Transfer Criminal Case
Legal Issues
- 1 Whether the applicant is entitled to seek transfer of his criminal case from Shanzu Law Courts to Mombasa Law Courts at this stage.
- 2 Whether the applicant should first seek recusal of the trial magistrate before approaching the High Court for transfer.
Ratio Decidendi
The court held that the applicant had not exhausted the proper procedure, which requires an application for recusal or transfer to be made first before the trial magistrate. Only if the trial magistrate declines to recuse herself and the applicant is dissatisfied with that decision should the High Court be approached for redress. This approach is necessary to prevent forum shopping and to respect the hierarchy and processes of the judicial system. As the applicant had not made such an application before the trial magistrate, the High Court found the current application premature and procedurally improper.
Court Disposition
application struck out
Orders
- The applicant's undated Notice of Motion application is struck out.
- The applicant is directed to make his application for transfer or recusal before the trial magistrate.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
MISC APPLICATION NO. 32 OF 2016
JOSEPH KAVITI ..............................................................................APPLICANT
VERSUS
REPUBLIC ..............................................................................RESPONDENT
RULING
By an undated Notice of Motion application filed on 21st March, 2016, the applicant, Joseph Kaviti, has applied for leave to file an application seeking to have is case, Shanzu Principal magistrate’s Criminal Case No 507 of 2013, Republic versus Joseph Kaviti, transferred from Shanzu laws courts to Mombasa law courts.
According to Mr Ayodo, learned state counsel, Shanzu law court has two magistrates and all the applicant should do is to seek to have the trial magistrate in this case recuse herself from hearing his case and only she declines, then he can proceed to this court for redress by way of appeal or revision.
To this, the applicant indicated he had no problem with court No1 at Shanzu law court.
In consideration, and having listened to both learned counsel for the state and applicant/accused, I have also perused the record from the lower court file, application and supporting affidavit.
I agree with the learned counsel for the state that the applicant ought to have made his application before the trial magistrate indicating the reasons he wants to have the case transferred from her court for consideration by herself. He can only approach this court if the trial magistrate declines to recuse herself from hearing his case and he feels aggrieved by that decision. This is so as to discourage situations where parties would be forum shopping.
I therefore strike out the applicant’s undated Notice of Motion application and direct that the applicant makes his application to have the case transferred from the current trial court to another or for the trial magistrate to recuse herself from hearing the case before the said magistrate.
It therefore follows that the Shanzu Principal Magistrate Criminal case No 507 of 2013, Republic Vs Joseph Kaviti be returned and placed before the trial magistrate for further orders.
Ruling signed, dated and delivered this 3rd day of October, 2016.
D. O. CHEPKWONY
JUDGE
In the presence of:
Mr Ayodo for the state
Applicant in person
C/clerk- Kiarie