[2018] KEHC 7217 (KLR)
The court found that the application for transfer of Sotik Criminal Case No. 44 of 2014 had been overtaken by events because the trial magistrate in question had already been transferred and the case was set to be heard afresh (de novo) before a new magistrate. There were no specific stay orders or High Court...
Source-derived case information.
- Citation
- [2018] KEHC 7217 (KLR)
- Parties
- Applicant: Leah Chepkirui Barmalel; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bomet
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 12 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer of Criminal Case
- Outcome
- application dismissed
- Judges
- GO Shikwe
- Legal Topics
- Transfer of Criminal Cases, Right to Fair Trial, Delay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leah Chepkirui Barmalel
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer of Criminal Case
Legal Issues
- 1 Whether the Sotik Criminal Case No. 44 of 2014 should be transferred to a different court for hearing and determination.
- 2 Whether the applicant's right to a fair trial has been breached by the conduct of the trial magistrate.
Ratio Decidendi
The court found that the application for transfer of Sotik Criminal Case No. 44 of 2014 had been overtaken by events because the trial magistrate in question had already been transferred and the case was set to be heard afresh (de novo) before a new magistrate. There were no specific stay orders or High Court interventions barring the hearing. The applicant's concerns about delay and fairness were addressed by the change in trial magistrate and the procedural directions already taken. As such, the application lacked merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application for transfer is dismissed.
- The original file to be returned to Sotik Law Courts.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BOMET
MISC APPLICATION NO. 12 OF 2017
LEAH CHEPKIRUI BARMALEL......................APPLICANT
-VERSUS-
REPUBLIC.........................................................RESPONDENT
RULING
By way of a Notice of Motion application dated 10th November 2017 the applicant seeks the following orders:
1. That the court do order that Sotik Criminal Case No. 44 of 2014 be heard and determined in a different court.
2. That the court do order for the transfer of Sotik Criminal Case No. 44 of 2014 be transferred to Bomet Law Courts for hearing and determination.
3. That the court be pleased to issue such orders as many be fair and just to secure the applicants rights to a fair trial.
The grounds are that:-
(a) On the 23rd day of March 2016, the then trial magistrate ordered that the matter proceed for further hearing on 7th July 2016 but since then the matter has not proceeded.
(b) That the trial magistrate breached applicants fundamental rights by allowing counsel for the Accused to use delaying tactics by staying the matter without valid reasons given or any order from the High Court stopping the matter from proceeding
(c) That the applicant does not have any more trust in the trial court following the way it handled the matter for more than one year without good reason.
I have called for and perused Sotik PM’s Criminal Case No. 44 of 2014.
This is an old matter which ought to be given hearing on priority bases. It is alleged that there does exist an appeal against the ruling of the learned trial magistrate handling the matter at the time. An appeal by itself is not a bar to the hearing of a case unless there are specific orders on stay or the High Court has called for the file.
The applicant appears to have been uncomfortable with the way the matter was being handled by the trial magistrate.
That trial magistrate has since been transferred and directions taken under S.200 of the CPC whereupon the case was to be heard DE NOVO before another magistrate.
This application for transfer of the case has been overtaken by events. It is not merited and same is dismissed. The original file to be returned to Sotik Law Courts.
Mention before the In charge on 12/4/2018 for further directions.
Ruling delivered dated and signed in open court this 6/4/2018. Asimwe holding brief appellant Mr. Barasa for the Respondent
M. MUYA
JUDGE
6/4/2018