[2019] KEHC 730 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NANYUKI

MISC. CRIMINAL APPLICATION NO 33 OF 2019

(In the Matter of Nanyuki CM Criminal Case No 47 of 2017)

MARTIN KIMATHI MUTUMA......................................................APPLICANT

VERSUS

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

R U L I N G

1. The Applicant herein, MARTIN KIMATHI MUTUMA, is the accused in Nanyuki CM Criminal Case No 47 of 2017 where he is facing the main charge of robbery with violencecontrary to section 296(2) of the Penal Code. By an application filed in this court on 16/07/2019 the Applicant has sought transfer of his trial to another court. The Republic opposes the application.

2. I have read the affidavits sworn in support of and opposition to the application, and also the Applicant’s lengthy written submissions. I have also considered the submissions of the learned counsel for the Respondent. Finally, I have also perused the record of the trial court.

3. The Applicant’s trial started on 12/06/2017 before the Chief Magistrate, Hon L. Mutai. On 13/03/2018 the Applicant applied for his case to be taken before another magistrate upon the ground that the Chief Magistrate had in the recent past handled another criminal case involving him. The Chief Magistrate readily acceded to the Applicant’s request, and she assigned the case to another learned magistrate.

4. Upon his rights under section 200 of the Criminal Procedure Code being explained to him, the Applicant elected to have his trial start afresh before the new trial court. This was on 29/03/2018. But on 23/08/2018 the Applicant told the trial court that he wanted the case to continue from where it had reached with the previous trial magistrate. On 09/11/2018 however, the Applicant stated that he wanted his case to start afresh before the new trial court. In response to an application for adjournment by the prosecution, he opposed the same, and added that if the court was inclined to grant adjournment, it ought to be the last adjournment. He also sought a near hearing date. He then stated that if he is given a date in 2019, he would ask that his case be transferred to another court. The trial court reserved ruling on the matter of transfer. On 12/11/2018 ruling was delivered, apparently refusing the request for transfer of the trial to another court. I have not seen the ruling, but a subordinate court would ordinarily not have jurisdiction to transfer a criminal case from itself to another court.

5. On 13/02/2019 the trial of the Applicant started afresh before Hon Njeri Thuku, PM and has been on-going before her. As already seen, on 16/07/2019 the Applicant applied to this court for transfer of his trial to another subordinate court. The grounds for his application as they appear in his affidavits and submissions are –

i) That he is not getting a fair trial as is his constitutional right under Article 50(2) of the Constitution of Kenya, 2010.

ii) That the trial court is not judiciously exercising its powers of adjournment under sections 205and 283of the Criminal Procedure Code to his detriment.

iii) That the trial court has denied him sufficient time to cross-examine prosecution witnesses.

iv) That the trial court has refused to grant him early, preferential trial dates.

v) That the court has refused to summon a senior police officer so that he can question him regarding a report he wrote to court regarding the Applicant’s complaint that he had been assaulted while in custody by a police officer.

vi) That the trial court denied the Applicant’s request for a visit to the scene of the alleged crime.

vii) That the trial court denied his request for return of his two mobile phones taken by the police at the time of his arrest.

viii) That the trial court denied the Applicant free bond.

ix) That the trial court does not record his complaints or applications.

6. The position of the Republic is that the Applicant’s trial has been handled within the law and in strict observance of his rights, and that the application for transfer of the trial is meant to delay the trial, frustrate the complainant and defeat the ends of justice. The Republic has further pointed out that in any case the prosecution case in the trial is just about to be concluded, the last witness (investigating officer) having testified in–chief and only waiting to be cross-examined by the Applicant.

7. Section 81(1) (a) and (e)(ii) of the Criminal Procedure Code provides -

“81. (1) Whenever it is made to appear to the High Court -

(a) that a fair and impartial trial cannot be had in any criminal court subordinate thereto; or

…...

......

(e) that such an order is expedient for the ends of justice or is required by any provision of this Code,

it may order –

(i) ......

(ii) that a particular criminal case or class of cases be transferred from a criminal court subordinate to its authority to any other criminal court of equal or superior jurisdiction;

(iii) ……’’

I will now examine the Applicant’s complaints.

Adjournments

8. The record of the trial court shows that the Applicant has made numerous applications in the course of his trial which have tended to delay the trial. I hasten to add, though, that there have been many applications for adjournment by the prosecution. The trial courts always considered those applications in light of the Applicant’s objections and allowed them for reasons that are on record. I find no merit in this complaint.

Sufficient Time to Cross-examine.

9. The record of the trial court shows that the Applicant cross-examined the witnesses fairly extensively. There is nothing to indicate that any issue was left hanging because the Applicant did not have enough time to ask all appropriate questions that he may have wanted to ask. Without the evidence of an independent observer who may have been in court, it is really the word of the Applicant against the record of the trial court. I prefer to go with the record. I do not find any merit in this complainant.

Early Preferential Trial Dates

10. I have seen the Applicant’s repeated requests for early preferential trial dates. For a crowded court diary, and this court is aware of how terribly busy the lower courts in Nanyuki are, an accused person would have to give very compelling reasons why his case should take the trial place of another, possibly older case. I find no such compelling reason given by the Applicant. There is no merit in this complaint.

Summoning of Senior Police Officer

11. The Applicant complained to the trial court that he had been assaulted by a police officer while in custody. The court took the matter seriously and directed that a report be filed by the police regarding the complaint. Such report was filed; it stated that there was no evidence of any assault upon the Applicant. The trial court acted correctly in not permitting parallel proceedings that would merely have detracted everyone from the main trial. I find no merit in this complaint.

Visit to Scene of Crime

12. Whether or not to visit a scene of crime is a matter for the discretion of the trial court. It is that court that is best placed to decide if such visit would add value and be in the best interests of justice. The court’s exercise of that discretion may be best challenged during appeal, if any. I find no merit in this complaint.

Return of Mobile Phones.

13. The issue of the Applicant’s mobile phones has taken up quite a bit of the trial court’s time, and a police officer was once summoned and appeared before the court over the issue. It appears that the stand of the police is that the phones were returned to the Applicant and that he signed for them. The Applicant denied this. The issue is still live before the trial court which is waiting for sworn and documentary evidence from the police of the return of the phones to the Applicant. Let that issue, which in reality ought not to impact upon the Applicant’s trial, be resolved there!

Free Bond

14. The Applicant informed this court that he applied to this court separately on the issue of bail. This complaint shall therefore be considered in that other application.

Record of Complaints and Applications

15. The record of the trial court is replete with numerous complaints and applications by the Applicant. I cannot possibly see what the court may have failed to record. In any event, the Applicant has not stated what other complaints and applications he may have made that the court failed to record. I find no merit in this complaint.

16. Upon the material now before this court, I do not find that a fair and impartial trial of the Applicant before the trial court cannot be had, or that transfer of his trial to another court is expedient for the ends of justice. There is no merit in his application. His this trial is at the tail end. It should be allowed to be concluded in the court now trying him. His application is dismissed. It is so ordered.

DATED AND SIGNED AT NANYUKI THIS 4TH DAY OF DECEMBER 2019

H P G WAWERU

JUDGE

DELIVERED AT NANYUKI THIS 5TH DAY OF DECEMBER 2019