[2022] KEHC 9817 (KLR)

Kariuki v Director of Public Prosecutions; Karanja (Interested Party) (Criminal Miscellaneous Application E231 of 2012) [2022] KEHC 9817 (KLR) (Crim) (12 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9817 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Miscellaneous Application E231 of 2012

LN Mutende, J

July 12, 2022

Between

Daniel Kimani Kariuki

Applicant

and

Director of Public Prosecutions

Respondent

and

Sylvia Wamboi Karanja

Interested Party

Ruling

1. Daniel Kimani Kariuki, the Petitioner/Applicant, approached the court through a Notice of Motion dated 23rd May, 2022 seeking transfer of this matter back to Kiambu High Court for expeditious determination.

2. The application is premised on grounds that the matter was transferred from Kiambu High court to this court by the Presiding Judge after she recused herself for reason that she handled a commercial matter involving the same parties; That an additional judge has since been posted to the court; it is in the interest of justice that the orders be issued for expeditious disposal of the petition, and, the respondent will not suffer any prejudice if the matter is transferred back and heard in court 2 at Kiambu High Court.

3. The applicant swore an affidavit in support of the application where he deposed that Honorable Justice Rachael Ngetich has since been posted as an additional judge and it is in the interest of justice that the matter be transferred back.

4. The respondent did not oppose the application.

5. The application was canvassed through oral submissions. The applicant basically reiterated what was averred in the application and supporting affidavit. Ms. Ntabo, learned counsel for the respondent urged that no harm would be occasioned as the subject matter was in Kiambu.

6. Mr. Otwal, learned counsel for the Interested Party opposed to the application. He argued that the judge who was seized of the original matter transferred it to this jurisdiction, that this court has jurisdiction to hear the petition as filed and that there must be sufficient reason to satisfy the court that they are apprehensive that justice will not be given. That the fact of another court having been constituted is not enough.

7. Further that the petition was filed in the year 2021 and directions were given but the petitioner has been indolent in moving the court until the Interested Party filed her application to have the criminal file returned to Kiambu. The Interested Party relied on the case of Joseph Korir vs. Republic (2018) eKLR where it was stated that in considering such an application, the court should assess existence of reasonable apprehension of bias: and the case of Shilenje v R (1980) KLR 132 where the court laid down the test for transfer. It was also argued that there was delay in bringing the application.

8. In a rejoinder, the applicant reiterated that the Interested Party sought for transfer of the matter back to Kiambu and has taken the court in cycles. That he has written several letters to the Deputy Registrar to have the matter listed for hearing.

9. I have carefully considered submissions by all parties. It is apparent that the Interested Party filed an application dated 20th April, 2022 seeking an order to have this matter and the criminal case involving the parties in the lower court retransferred to Kiambu Court and as noted, she acknowledged in the affidavit and grounds upon which the application was premised that the High Court at Kiambu has an additional judge.

10. Her advocate has not given any reason for departing from his client’s earlier position before this court. Furthermore, there is no allegation that the new judge lacks jurisdiction to determine the matter.

11. Generally, the High Court has power to transfer a matter to another High court for determination if there is just cause. The right to a litigant’s access to justice can only be actualized if principles of natural justice are upheld. Accessibility should also be considered in terms of distance which depends on the ability of the litigant. In her application, the Interested Party pointed out that the main reason why the matter was transferred to Nairobi was because Hon. Lady Justice Kasango had recused herself but following creation of a second High Court, there is another Judge Hon. Lady Justice Rachael Ngetich who is independent and has not recused herself and can hear and determine the matter conclusively. That the transfer of the Petition would ensure justice is administered effectively to both parties.

12. In this instance, the two courts have concurrent jurisdiction in that they are both High courts with jurisdiction to determine the petition. The transfer is therefore viewed as a reallocation from one High court registry to another.In the case of Daniel Kimani Moseka v Japheth Arthur Mwangi Kiurire [2012] eKLR the court held that there is only one High Court which sits at different locations. It was stated that:“Suffice it to say that I agree with the holding and reasoning of justice Waweru in Kenya Tea Development Agency Vs Thomas Mboya OguttuT/A Ms Oguttu Mboya & and Co. Advocates & another (Nairobi High court case No. 6/2004) (unreported). In that case, Justice Waweru said that there is only one High Court in Kenya which sits at various locations as the Chief justice may appoint. That High Court (established under section … of the Constitution) has a central office in Nairobi and various district registries. Machakos is one such registry. It is the same High Court that sits in Nairobi and all the various registries. It is not different High Courts. As such, a High Court judge may, in good faith, direct that a case be heard at a different registry If it would be more convenient for the parties or the court or for some other just cause. This is not “transfer” from one High Court to another High Court but a transfer from one registry to another. I am therefore of the opinion that, in an appropriate case, a High Court judge can invoke its inherent jurisdiction or the powers donated in order 47 rule 6 to transfer a case from one registry to another even if those registries are manned by different judges”.

13. In exercising its power to transfer the court acknowledges that it has jurisdiction, as argued by the Interested Party. The transfer is necessary for good order, convenience and delivery of justice. The alleged violations are stated to have occurred in Kiambu. The parties are also from that jurisdiction and it would be convenient to access the court.

14. The upshot of the above is that the application is meritorious, accordingly, I hereby direct that Misc. Application No. E231 (Formally Kiambu High Court Petition Number E022 of 2021) be and is hereby transferred to Kiambu High Court for hearing and determination.

15. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLYAT NAIROBI THIS 12TH DAY OF JULY, 2022. L. N. MUTENDEJUDGEIN THE PRESENCE OF:ApplicantMs. Otwal for Interested PartyMs. Adhiambo for the StateCourt Assistant – Mutai.