Ochieng & 2 others v Republic (Miscellaneous Criminal Application E131 of 2025) [2026] KEHC 8008 (KLR) (21 May 2026) (Ruling)

Ochieng & 2 others v Republic (Miscellaneous Criminal Application E131 of 2025) [2026] KEHC 8008 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEHC 8008 (KLR) Republic of Kenya In the High Court at Homa Bay Miscellaneous Criminal Application E131 of 2025 OA Sewe, J May 21, 2026 Between Bill Clinton Ochieng 1st Applicant Cynthia Adhiambo Onyango 2nd Applicant Phelix Otieno 3rd Applicant and Republic Respondent Ruling 1.The notice of motion dated 5th December 2025 was filed by the three applicants pursuant to the provisions of articles 47, 48, 50, 159(1), 160(1) and 165(1), (6) and (7) of the Constitution of Kenya as well as section 81 of the Criminal Procedure Code, cap 75 of the Laws of Kenya. They prayed for the following orders:(a)Spent.(b)That there be a stay of proceedings in Criminal Case No. 1067 of 2025 currently before the Chief Magistrate’s Court at Kibera Law Courts pending the hearing and determination of the application. (spent)(c)That in the alternative, the court be pleased to transfer Criminal Case No. 1067 of 2025 from Kibera Chief Magistrate’s Court to Homa Bay Chief Magistrate’s Court for determination.(d)That the costs of the application be provided for. 2.The application is premised on the grounds that the applicants are finding it expensive to attend the hearings and mentions in Nairobi, yet a similar court of competent jurisdiction is available in the County of Homa Bay. They contended that the orders sought will be to the best interest of the witnesses as well because they are working at Rachuonyo Sub-County Hospital within Homa Bay County and will ensure access to justice for purposes of article 48 of the Constitution. 3.The application was supported by the affidavit of the 1st applicant, sworn on behalf of all the applicants on 5th December 2025 in which they deposed that they are finding it quite strenuous to attend court sessions in Nairobi. They averred that for each trip they have had to spend Kshs. 5,000/= by way of travelling expenses. 4.The application was opposed by the respondent. To that end, the respondent relied on the replying affidavit sworn by Ms. Brenda Oduor, an Advocate of the High Court of Kenya and a Prosecution Counsel stationed at the Office of the Director of Public Prosecutions, Homa Bay. The respondent averred that the application does not meet the threshold for transfer under section 81 of the Criminal Procedure Code and is therefore misconceived and an abuse of the process of the court. 5.The respondent further averred that the mere allegation that the cause of action arose in a different jurisdiction and high travelling expenses are not, in themselves, sufficient grounds for transfer of a criminal case. According to the respondent, the applicants failed to demonstrate any exceptional circumstances or any real likelihood of bias or prejudice by the current trial court to warrant transfer. The respondent further deposed that for purposes of effective case management and administrative convenience, all the related matters were instituted in Nairobi where the majority of the witnesses are based. Hence, a transfer would occasion unnecessary delay, logistical difficulties and prejudice to the prosecution witnesses. The respondent urged the court to find that it is the public interest that the matter proceeds to conclusion before the current court. 6.Lastly, the respondent averred that the application is merely intended to delay the expeditious disposal of the subject case; and is therefore an affront to article 50(2)(e) of the Constitution on the right to have a trial concluded without unreasonable delay. 7.The application was urged on the 20th January 2026 by Mr. Ongoso, learned counsel for the applicants. He reiterated the averment that the applicants come from Rachuonyo Sub-County and were arrested and arraigned before the Chief Magistrates Court in Kibera, Nairobi, for no good reason and yet there are courts of competent jurisdiction within the County of Homa Bay. He prayed that the application be allowed and the orders sought granted. 8.The respondent opted for and was granted leave to file written submissions. Accordingly, the respondent relied on the written submissions dated 17th February 2026. For determination, the respondent proposed one issue, namely, whether the applicants have satisfied the threshold for transfer of the subject criminal case from Kibera Chief Magistrate’s Court to Homa Bay Chief Magistrate’s Court. According to the respondent, the applicants were under obligation to prove that:(a)A fair and impartial trial cannot be held in the Kibera Court;(b)There is reasonable apprehension of bias or prejudice;(c)The transfer is expedient for the ends of justice. 9.It was the submission of the respondent that the applicants utterly failed to demonstrate that their application satisfied the aforementioned criteria. Counsel for the respondent reiterated the assertion that the investigations conducted into the subject case revealed a complex medical fraud involving 24 healthcare facilities in Rachuonyo East Sub-County with losses amounting to Kshs. 47,708,820/=; and that out of the affected facilities, nine related matters are currently pending before the Kibera and Milimani Law Courts. Hence it was the respondent’s submission that transferring the case at this stage would occasion unnecessary delay, logistical challenges and prejudice to the prosecution witnesses. Hence, the respondent prayed for the dismissal of the application in the public interest. 10.I have given careful consideration to the application as well as the affidavits filed in respect thereof by the parties. I have also considered the oral and written submissions made herein by learned counsel. The issue for determination is whether sufficient cause has been shown by the applicants for transfer. In this regard, section 71 of the Criminal Procedure Code provides that:“Subject to the provisions of section 69, and to the powers of transfer conferred by sections 79 and 81, every offence shall ordinarily be tried by a court within the local limits of whose jurisdiction it was committed, or within the local limits of whose jurisdiction the accused was apprehended, or is in custody on a charge for the offence, or has appeared in answer to a summons lawfully issued charging the offence.” 11.Likewise, section 72 of the Criminal Procedure Code is explicit that:“When a person is accused of the commission of an offence by reason of anything which has been done or of any consequence which has ensued, the offence may be tried by a court within the local limits of whose jurisdiction the thing has been done or the consequence has ensued.” 12.It is manifest, therefore, that given the circumstances in which the subject offence is alleged to have been committed, the case ought to have been filed at the Magistrate’s Court at Homa Bay or Oyugis; for the offence is alleged to have occurred in Rachuonyo, which is also where the applicants were arrested at. Instead, the applicants were arraigned before the Chief Magistrate’s Court at Kibera in Nairobi. 13.The application for transfer was therefore brought under section 81(1) of the Criminal Procedure Code, which is the provision that gives the High Court the power to transfer criminal cases from one subordinate court to another. It provides as follows:(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(b)that some question of law of unusual difficulty is likely to arise; or(c)that a view of the place in or near which any offence has been committed may be required for the satisfactory trial of the offence; or(d)that an order under this section will tend to the general convenience of the parties or witnesses; 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)that an offence be tried by a court not empowered under the preceding sections of this Part but in other respects competent to try the offence;(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)that an accused person be committed for trial to itself. 14.It is therefore trite that, while the High Court has the discretion to transfer a criminal case from one magistrate to another, that discretion can only be invoked in situations where there is sufficient evidence to warrant such transfer. It was not the contention of the applicants that a fair and impartial trial cannot be had at the Kibera Chief Magistrate’s Court or that some question of law of unusual difficulty is likely to arise; or even that a view of the place in or near which the offence was committed may be required for the satisfactory trial of the offence. 15.Accordingly, the instant application can only be considered from the prism of sub-sections (1)(d) and (e) of section 81 of the Criminal Procedure Code. The applicants complained that it is expensive for them to travel to Nairobi for their trial and therefore contended that a transfer will tend to their general convenience as well as the convenience of the prosecution witnesses. However, the respondent rebutted that assertion by averring that the fraud did not yield just one criminal case. At paragraphs 5, 6, 7 and 8 of the replying affidavit the respondent averred that the investigations conducted into the subject case revealed a complex fraud involving 24 healthcare facilities in Rachuonyo East Sub-County with losses amounting to Kshs. 47,708,820/=. 16.Further to the foregoing, the respondent averred that out of the affected facilities, nine related matters are currently pending before the Kibera and Milimani Law Courts. Hence it was the respondent’s submission that transferring the case at this stage would occasion unnecessary delay, logistical challenges and prejudice to the prosecution witnesses. This assertion was not rebutted by the applicants and therefore does go to show that the public interest would be in favour of proceeding with the trial in Nairobi. 17.More importantly, the High Court (Organization and Administration) Act, No. 27 of 2015, provides in section 25 thereof that:The court shall exercise its jurisdiction in accordance with the rules of practice and procedure prescribed by written law. 18.It is to be recalled that the purpose of the Act, as set out in the preamble thereto, is to:“…give effect to article 165 (1)(a) and (b) of the Constitution; to provide for the organization and administration of the High Court of Kenya and for connected purposes.” 19.Accordingly, for purposes of article 165(3) and (6) of the Constitution, section 12(3) of the High Court (Organization and Administration) Act provides that:“The filing of appeals, bail applications, and references from the subordinate courts, tribunals and other bodies or authorities within the regions designated by the Chief Justice under the Rules, shall be made at the High Court station with the corresponding supervisory jurisdiction.” 20.That provision presupposes that an application of this nature ought to have been filed at the High Court at Kibera or Milimani Law Courts. No justification was given by the applicants why they opted to file the application in this court instead. 21.In the result, I find no merit in the application for transfer. It is hereby dismissed accordingly.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 21ST DAY OF MAY, 2026.………………………HON. OLGA SEWEJUDGE