[2021] KEHC 9169 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

MISCELLANEOUS CRIMINAL APPLICATION 27 OF 2020

1. JUMA OMAR ABDALLA

2. JULIUS GIKONYO MWANGI

3. STEPHEN KARIUKI NDIRANGU.....................................APPLICANTS

~VS~

REPUBLIC...............................................................................RESPONDENT

R U L I N G

1. By a Notice of Motion dated 30th June 2020 the Applicants herein brought application under Section 81(1), (3) & (4) of the Criminal Procedural Code seeking transfer of Mombasa CM CR. Case No. 821 of 2020 from Mombasa Chief Magistrate Court to Nakuru Chief Magistrates Court. The application is supported by the affidavit sworn by the 2nd and 3rd applicants filed and on 24/7/2020 as well as further affidavit of Samuel Odhiambo Eleakim.

2. The Applicants grounds on the face of the Notice of Motion are that the offence for which the applicants are charged was committed at Salgaa Trading Centre within Nakuru County and the 2nd and 3rd Applicant’s were arrested at Ngata Location and Salgaa Trading Centre respectively within Nakuru County whereas the 1st Applicant was arrested at Salama Trading Centre in Makinon within Machakos County.

3. That the key prosecution witnesses and the accused persons witnesses are likely to be summoned to attend court from the jurisdiction of Nakuru County. That there was no reasonable basis for the applicants to be ferried and charged in Mombasa Law Courts when it is evident the offence occurred in Nakuru County.

4. It was argued that fair aid speedy trial guaranteed by the constitution cannot be achieved when witnesses have to travel long distances from Nakuru County to Mombasa Law Courts for trial. The applicants argued that it was extremely risky for the applicant and the witnesses to travel to the Mombasa Law Courts during the current Covid-19 pandemic due to the risk of exposure to the corona virus and because there are travel restrictions and numerous police barriers which may prevent the accused persons from attending court on time and also deter witnesses from attending specifically the applicants witnesses.

5. IP Samson Odhiambo of DCI Mombasa Shore a replying affidavit on 11th September 2020 opposing the application and said the goods stolen were on transit. He said that none of the applicants were arrested in Salgana. He said Accused 2 and Accused 3 were arrested in Ngata Location and 1st Applicant arrested at Salama Trading Centre for the theft of 15 tonnes of casseterite. He argued that place of arrest cannot be basis for deciding on which court suspects should be arraigned.

6. He averred that the matter was reported to DCI Mombasa by the complainant company Spedag Interfreight Ltd whose office is in Mombasa and full investigations were conducted in Mombasa. He averred that the commission of offence affected Spedag Interfreight Ltd which was contracted to repackage the goods and Trakana Mombasa Limited who were transporting the goods which were stolen on transit using motor vehicle Reg. No. KBY 100/SE 6060 were based in Mombasa.

7. IP Odhiambo also said that the witnesses to be called by the prosecution are based in Mombasa except for police officers who assisted in recovery of the stolen goods and arrest of the suspects. It was also averred that the 1st Applicant was employed as driver by Trakana Mombasa Ltd and his place of abode was Mtwapa and that the transfer of the matter will prejudice rather than benefit him. IP Odhiambo argued that the matter was partheard and as exhibits were already produced and motorvehicle Reg. KBY 100K/ZT 6060 released to the owners.

8. The investigating officer argued further that transfer of matter to Nakuru will delay the hearing which had earlier on proceeded in Mombasa where most witnesses and Investigating Officer are domiciled. It was also argued that restrictions on movement due to COVID-19 pandemic had been relaxed that there was free flow of public transport and there was nothing restricting applicants movement to and from the court. That the matter was still at prosecutions stage and it was premature, the applicants to pre-empt that they may not be able to avail their witnesses.

9. The application was canvassed by way of written submissions. The Respondents in their submissions contended that the apprehension of applicants at Ngata and Salama Trading Centres cannot determine place of trial rather the place where the offence was committed which has not been ascertained as the goods were on transit from Kampala to Mombasa when the offence occurred.

10. It was also argued that when goods were stolen on transit, the complainant was reported to DCI Mombasa which conducted investigations and arrested suspects and recovered exhibits. It was argued that investigations were conducted within Mombasa which is within territorial jurisdiction of Mombasa Law Courts and therefore seized with necessary jurisdiction.

11. It was argued that a transfer would only be justifiable where it is shown that a fair and/or impartial trial cannot be held and as held in the case of Francis Otieno Joseph vs Republic (2015) eKLR apprehension must be reasonable.

12. It was the Respondents argument that more expenses will be incurred by the complainant if trial is transferred to Nakuru as the 2 companies involved are based in Mombasa and the witnesses to testify are all from Mombasa. It was urged that the interests of both parties be taken into consideration.

13. The Respondent/state averred that application was merely based on convenience of applicants rather than addressing legal tenets that might be suffered if trial proceeds in Mombasa. The Respondents urged the court that dismiss application for transfer.

14. The applicants are their part submitted that Section 75 of the Criminal Procedure Code implies that where an offence is committed on a journey the case should be tried in the local jurisdiction of the court situate at the place where the offender may have passed while on his voyage, or where the complainant may have passed on his voyage on the place where the thing in respect of the offence passed through while in the course of that journey.

15. The applicants therefore argue that although the goods in question on were on transit to Mombasa the same were stolen within the local jurisdiction of Nakuru County and some of the stolen goods were recovered within the local jurisdiction of Nakuru County. It is also argued that the 2nd and 3rd Applicants were apprehended within the local limits of Nakuru County while the 1st applicant was arrested at Salama Trading Centre in Makueni County and that none of the suspects had journeyed to Mombasa neither had the goods and the truck passed through Mombasa town.

16. The applicants argued that Section 71 of the Criminal Procedure Code provides for trial where offence is committed, where the suspect is arrested or where consequence of offence has ensued i.e. act of handling the recovered goods.

17. Applicants argued that 2nd and 3rd Applicants having been arrested within Nakuru County they should not have been arraigned in Mombasa CM Court on this would result in unreasonably delay in their trial and therefore against the provisions affair trial under Article 50(2) of the constitution. It was argued that the 1st Applicant also indicated that some of his witnesses may be required to travel from Makueni County – Salama area where he was arrested and that it will be necessary for the court to visit the scene of recovery of the goods so that the court can make observations in relation to defences of alibi which the applicants extend to raise. See Section 81 C.P.C.

18. It was also argued that claims that the investigating officer works and resides in Mombasa is not sufficient to cause trial at Mombasa as the arresting officers and officers who made recoveries don’t emanate from Mombasa. It was the appellants contention that the police file can always be handed over to any other competent officer within Kenyan police force working anywhere in the county.

19. It was also argued that the production of exhibits and release of the truck was under special proceedings taken after photographs of exhibits went taken and the matter can be transferred and dealt with under Section 200 (3) Criminal Procedure Code.

20. Having considered the application and submissions filed by respective parties it is apparent that this quite a unique case where the goods were on transit from Kampala to Mombasa and in the course of transit the goods were stolen on 13th May 2020 at Salgaa Trading Centre.

21. From the charge sheet the applicants were arraigned in court on 26/5/2020, having been arrested on 22nd May 2020 from Ngata and Salama areas respectively and Section 75 of the Criminal Procedure Code provides the High Court with discretion to decide where an offence committed under such circumstances should be tried. If the court were to decide that trial takes place in a court under which jurisdiction the goods have been conveyed through in the course of journey or voyage any court from the point when the goods entered the Kenyan territory upto Nakuru would be qualified to try the matter.

22. If we are to go by the place of arrest of the suspects then either Nakuru Magistrates Court or a court near Salama area where 1st Applicant was arrested would suffice. In the circumstances and in consideration that the goods were on transit from Kampala to Mombasa and inconsideration the 1st Applicant was an employee of the owner of the truck and was residing within Mombasa country. I do find that the most convenient place for trial would be Mombasa Chief Magistrates Court where trial has already begun. The applicants cannot vouch for the inconvenience of the Respondent’s witnesses in the absence of such complaint from the said witnesses. It would not be prudent that one officer investigates a crime then hands over the file to any other officer who is not in conduct of the same merely because of distance.

23. As to the COVID-19 situation and lockdown, I think the circumstances have since changed and the lockdown was lifted and restricted movements are no longer in place save that the pandemic being with us everyone has to play their role in following the MOH protocols. The application for transfer of this matter to Nakuru Law Courts is therefore dismissed.

24. Mombasa Chief Magistrate Case CR. Case No. 821 of 2020 shall be mentioned on 1/2/2021 for directions.

Dated, signedand deliveredat Mombasathis28thday ofJanuary 2021.

HON. LADY JUSTICE A. ONG’INJO

JUDGE