[2023] KEHC 17855 (KLR)
The court declined to grant the orders sought by the applicant because there was no evidence of compliance with the mandatory procedural requirement under section 81(4) of the Criminal Procedure Code, which requires written notice to the Director of Public Prosecutions and a 24-hour period before the application can...
Source-derived case information.
- Citation
- [2023] KEHC 17855 (KLR)
- Parties
- Appellant: Ezekiel Onunga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Case E194 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Interlocutory Application for Transfer of Criminal Case
- Outcome
- Application for transfer of criminal case not granted; matter to be mentioned for directions after lower court proceedings are availed.
- Judges
- DR Kavedza
- Legal Topics
- Transfer of Criminal Cases, Change of Venue, Procedural Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ezekiel Onunga
Appellant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Interlocutory Application for Transfer of Criminal Case
Legal Issues
- 1 Whether the High Court should order the transfer of Criminal Case No. 1273 of 2018 from Makadara Law Courts to Milimani Law Courts or another court.
- 2 Whether the applicant complied with the mandatory notice requirements under section 81(4) of the Criminal Procedure Code.
Ratio Decidendi
The court declined to grant the orders sought by the applicant because there was no evidence of compliance with the mandatory procedural requirement under section 81(4) of the Criminal Procedure Code, which requires written notice to the Director of Public Prosecutions and a 24-hour period before the application can be heard on its merits. The absence of such compliance precluded the court from granting the transfer or certifying the matter as urgent. The court instead directed that the lower court proceedings be typed and certified for further directions at a later date.
Court Disposition
Application for transfer of criminal case not granted; matter to be mentioned for directions after lower court proceedings are availed.
Orders
- The application is not certified urgent.
- Lower court proceedings to be typed, certified, and availed to this court on or before 14/6/2023.
Full Case Text
Judgment text and source record
18 paragraphs
Onunga v Republic (Miscellaneous Criminal Case E194 of 2023) [2023] KEHC 17855 (KLR) (Crim) (29 May 2023) (Ruling)
Neutral citation: [2023] KEHC 17855 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)
Criminal
Miscellaneous Criminal Case E194 of 2023
DR Kavedza, J
May 29, 2023
Between
Ezekiel Onunga
Appellant
and
Republic
Respondent
Ruling
1. The applicant Ezekiel Onunga filed a notice of motion application under section 81 of the Criminal Procedure Code (CPC). The application is supported by the affidavit of Ezekiel Onunga equally dated May 15, 2023 seeking orders inter alia that:a.This matter be certified urgent and service be dispensed with in the first instance.b.The court be pleased to order that Criminal Case No. 1273 of 2018 at the Makadara Law Courts be transferred to Milimani Law Courts or in any other Court that this court will deem fit to allocate the same.
2. The powers of the High Court to order change of venue of a criminal trial is provided for under section 81 of the CPC. Furthermore, section 81(4) provides that an accused person making such an application shall give to the Director of Public Prosecutions (DPP) notice in writing of the application, together with a copy of the grounds on which it is made, and no order shall be made on the merits of the application unless at least twenty-four (24) hours have elapsed between the giving of the notice and the hearing of the application. I have not seen any evidence of compliance with the said provisions of the law, therefore, the orders sought cannot be granted ex parte.Having so stated, I proceed to issue the following orders: -a.That the application is not certified urgent.b.That the lower court proceedings to be typed, certified and availed to this court on or before 14/6/2023. c.That the matter be mentioned on 21/6/2023 for directions.
RULING READ AND DELIVERED IN ABSENCE OF BOTH PARTIES THIS 29TH DAY OF MAY 2023. D. KAVEDZAJUDGE