[2012] KEHC 389 (KLR)
The court found that the orders transferring the case to another court and for a trial de novo were made without proper jurisdiction, as the original trial magistrate was only temporarily unavailable due to maternity leave and had since resumed duty. The interests of justice, particularly considering the complainant...
Source-derived case information.
- Citation
- [2012] KEHC 389 (KLR)
- Parties
- Applicant: Ndavi Kyenze; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Revision Case 578 of 2012
- Procedural Posture
- Criminal Revision / Order on Revision
- Outcome
- Orders vacated; case to proceed before original magistrate to conclusion.
- Judges
- GMA Dulu
- Legal Topics
- Revision Jurisdiction, Transfer of Cases, Trial De Novo, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ndavi Kyenze
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Order on Revision
Legal Issues
- 1 Whether the orders transferring the case to another court and for a trial de novo were proper in the circumstances.
- 2 Whether the initial trial magistrate should resume and conclude the hearing of the case.
Ratio Decidendi
The court found that the orders transferring the case to another court and for a trial de novo were made without proper jurisdiction, as the original trial magistrate was only temporarily unavailable due to maternity leave and had since resumed duty. The interests of justice, particularly considering the complainant is a minor and the accused would not be prejudiced, require that the original magistrate, Hon. Simiyu, resume and conclude the hearing. The court vacated the previous orders and directed the case to proceed before Hon. Simiyu to finality.
Court Disposition
Orders vacated; case to proceed before original magistrate to conclusion.
Orders
- The order directing the case to be heard by Court 7 is vacated.
- The order transferring the case to Mavoko Law Courts is vacated.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
High Court at Machakos
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NDAVI KYENZE…………..……………………………..APPLICANT
VERSUS
REPUBLIC………………………………………..….RESPONDENT
ORDER ON REVISION
Apparently this case was heard by Hon. Simiyu, RM until the close of prosecution case. The hearing of the defence then was scheduled for 13th August, 2012. All this time the accused was in custody. On the 13th August, 2012, it transpired that Hon. Simiyu had proceeded on maternity leave and was due to resume duties in late November, 2012. As the accused felt that the case will take too long to conclude it was to wait the resumption of duty by Hon. Simiyu, he caused the case to be placed for mention before Court 1 on 27th August, 2012. The accused elected to have the case proceed before another court. Thereafter, the case was allocated to Court 7 for further hearing. However, this was not to be as the proceedings could not easily be typed. In the meantime, the accused attended the court 5 times pending the typing of the proceedings. On 26th October, 2012 the accused requested the court to start the case de novo which the learned magistrate conceded to. However, on 8th November, 2012 the magistrate transferred the case to Mavoko Law Courts for hearing. After going through the file, the court at Mavoko sent it back and requested that in the interest of justice, the initial trial magistrate should conclude the case.
Due to the above circumstances, the file was placed before me for an order or revision. The reason the case was in the first place re-allocated to another court was because the trial magistrate had gone on a long maternity leave. She has since resumed duty. The complainant is a minor. Since Hon. Simiyu is now in turn no prejudice will be occasioned to the accused if she was to proceed and hear the case to its conclusion. I would therefore vacate the order directing that the case be heard by court 7 and the order transferring the case to Mavoko Law Courts which in my view was made without jurisdiction. Instead I direct that the Hon Simiyu resumes to the hearing o the case to finality.
DATEDat MACHAKOSthis 30THday ofNOVEMBER, 2012.
ASIKE-MAKHANDIA
JUDGE
DATED, SIGNEDand DELIVERED at MACHAKOSthis 30THday of NOVEMBER, 2012.
GEORGE DULU
JUDGE