[2005] KEHC 847 (KLR)
The court found that the application for transfer of the criminal case was incompetent as it was brought by Chamber Summons instead of the mandatory Notice of Motion as required by section 81(3) of the Criminal Procedure Code. The application was therefore struck out for procedural impropriety. Furthermore, the...
Source-derived case information.
- Citation
- [2005] KEHC 847 (KLR)
- Parties
- Applicant: Juma Muchelule; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 67 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer and Termination of Criminal Case
- Outcome
- application struck out
- Legal Topics
- Transfer of Criminal Cases, Venue of Trial, Judicial Bias, Procedural Irregularity
- 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
Juma Muchelule
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer and Termination of Criminal Case
Legal Issues
- 1 Whether the application for transfer of the criminal case was properly before the court as per statutory requirements.
- 2 Whether the applicant demonstrated sufficient grounds of bias or irregularity to warrant transfer or termination of the criminal case.
Ratio Decidendi
The court found that the application for transfer of the criminal case was incompetent as it was brought by Chamber Summons instead of the mandatory Notice of Motion as required by section 81(3) of the Criminal Procedure Code. The application was therefore struck out for procedural impropriety. Furthermore, the court held that even if the application had been properly instituted, it contained insufficient evidence to support the allegations of bias or irregularity. The applicant failed to demonstrate any merit for the orders sought. Nonetheless, the court, in the interest of justice, called for the record of the lower court proceedings to examine their regularity.
Court Disposition
application struck out
Orders
- The Chamber Summons application is struck out as incompetent.
- The court calls for the record of Mumias Cr. case No. 1155 of 2004 for examination.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
Misc Crimi Appli 67 of 2005
JUMA MUCHELULE ……………………………………………… APPLICANT
VERSUS
REPUBLIC ……………………………………………………….. RESPONDENT
RULING
JUMA MUCHELULE, the Applicant, alleges that he is the accused in the Senior Resident Magistrate’s Court Criminal case No. 1155 of 2004. He seeks in his Chamber Summons application dated 19-9-2005 an order that the said case be transferred from Mumias S.R.M.’s court to any other court. His other prayer is for an order that this court do terminate the said case. He alleges that he is charged in the said case with the offence of maliciously administering poison with intent to harm contrary to section 236 of the Penal Code.
In his affidavit in support of the application, he alleges that the trial court has treated him with bias and that it has since September 2004 failed to fix the case for hearing. He also alleges that he was initially admitted to bail but the court file later went missing from the court registry and his bond was subsequently cancelled when the file was later found.
Mr. Karuri, learned State Counsel, who appeared for the Republic when the application came up for hearing on 26. 10. 05 opposed the application and submitted that the transfer sought of the case would greatly inconvenience the prosecution witnesses if the case were transferred elsewhere. In any case, he said, the applicant had not demonstrated how the trial magistrate was biased against him. He urged the court to dismiss the application.
The power of this court to change the venue of the hearing of a criminal case is conferred by section 81 of the Criminal Procedure Code, Cap 75, and, in the exercise of this power, the court may change venue of the hearing of a case so suo moto, or on application of a party interested or on the report of the lower court. In the instant case, the accused in the lower court has applied for the transfer of the case to another court. Section 81(3) of the Criminal Procedure Code requires the application to be made by Notice of Motion. As the application is by Chamber Summons, it is not in compliance with this mandatory provision and is therefore incompetent and is stuck out. At any rate, the stuck-out application contained scanty information and the allegations in it were not buttressed by evidence so that even if it had been regularly instituted by way of a Notice of Motion, it did not disclose any merit for the order sought and was bound to fail.
However, so as to satisfy itself as to the regularity of the proceedings in Mumias Cr. case No. 1155 of 2004 pending before the Senior Resident Magistrate, the Hon. P. Sultan (Mrs.), this court hereby calls for the record with a view to examine it.
Dated at Kakamega this 8th day of November, 2005.
G. B. M. KARIUKI
J U D G E