[2019] KEHC 9692 (KLR)
The court held that the applicant failed to provide specific facts or evidence demonstrating that his right to a fair hearing under Article 50 of the Constitution would be infringed by the trial proceeding at Kimilili Law Court. The mere allegation that the complainant and the owner of the vehicle are police...
Source-derived case information.
- Citation
- [2019] KEHC 9692 (KLR)
- Parties
- Applicant: Lemuso Chepkorom Naibei; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- ? 79 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Criminal Case
- Outcome
- application dismissed
- Judges
- SN Riechi
- Legal Topics
- Fair Trial Rights, Transfer of Proceedings, Traffic Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lemuso Chepkorom Naibei
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Criminal Case
Legal Issues
- 1 Whether the applicant has demonstrated that his right to a fair hearing under Article 50 of the Constitution has been violated or is threatened by the trial being conducted at Kimilili Law Court.
- 2 Whether the applicant has provided sufficient grounds for the transfer of the traffic case from Kimilili Court to Bungoma Chief Magistrate's Court.
Ratio Decidendi
The court held that the applicant failed to provide specific facts or evidence demonstrating that his right to a fair hearing under Article 50 of the Constitution would be infringed by the trial proceeding at Kimilili Law Court. The mere allegation that the complainant and the owner of the vehicle are police officers and friends with Judicial Staff at Kimilili Court was deemed insufficient to establish a real likelihood of bias or unfairness. The court emphasized that generalities and unsubstantiated claims cannot form the basis for transferring a criminal case. Consequently, the application for transfer was dismissed, and the court directed that the traffic case proceed for hearing and...
Court Disposition
application dismissed
Orders
- The application for transfer of Kimilili Resident Magistrate’s Court Traffic Case Number 160 of 2018 to Bungoma Chief Magistrate’s Court is dismissed.
- Kimilili Traffic Case Number 160 of 2018 shall proceed for hearing and determination at Kimilili Court.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
TRAFFIC MISC. APPLICATION NO.79 OF 2018
LEMUSO CHEPKOROM NAIBEI...................APPLICANT
VERSUS
REPUBLIC......................................................RESPONDENT
RULING
The appellant LEMUSO CHEPKOROM NAIBEI filed this application brought under Article 50(1) of the Constitution and Section 81 of the Criminal Procedure Code seeking;
1. That Kimilili Resident Magistrate’s Court traffic Case Number 160 of 2018 be withdrawn from the said Court and be transferred to the Chief Magistrate’s Court at Bungoma for hearing and final disposal.
The grounds of the application are that;
1. This suit is subject to a traffic offence dispute where the applicant is seeking to defend himself from the charges imputed on him.
2. That it is not possible for the applicant to list the case herein for hearing and final disposal before any Court at the Kimilili Law Court due to his lack of faith in the Judicial Staff thus there being need to transfer this matter to the Chief Magistrate’s Court Bungoma for hearing and final disposal.
The application is supported by the supporting affidavit of the applicant sworn on 26. 9.2018 reiterating the grounds of the application.
Mr. Oimbo for State filed grounds of opposition stating;
1. That the applicant has not demonstrated how he will not receive a fair hearing.
2. That the applicant has not proven the allegation that the Complainant and the owner of the vehicle in question are police Officers from Kimilili Police Station and friends of Judicial Staff in Kimilili Court.
The main issue in this application is whether the applicant has demonstrated that his rights to fair hearing under Article 50 of the Constitution have been violation or threatened to be violated for this Court to grant the prayers sought.
The rights under Article 50 relate to fair hearing. Article 50(1) provides;
“Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a Court or, if appropriate, another independent and impartial tribunal or body.”
Fair hearing denotes the concept of presumption of innocent until the contrary is proved; be informed of the charge, adequate time and facilitation to prepare defence prompt disposal of cases, choice of advocate and being present during the hearing.
In this application the applicant is seeking transfer of the traffic case from Kimilili Court to one other Court because the complainant owner of the vehicle involved are police Officers at Kimilili Police Station and therefore friends of Judicial Staff. In an application such as this the applicant must not use generalities on basis of his application. He must prove specific facts pointing to infringement of his rights.
The only complaint which forms the basis of this application is that the complainant is a Police Officer within Kimilili and may be friends with Judicial Officers. He has not shown how the fact that the complainant is a Police Officer in Kimilili will infringe his rights for fair trial enshrined under Article 50.
I therefore find no basis to grant the prayers sought and dismiss this application and direct that the Kimilili traffic 160/2018 do proceed for hearing and determination in Kimilili Court.
Dated and Deliveredat Bungoma this 20th day of February, 2019
S.N. RIECHI
JUDGE