[2018] KEHC 251 (KLR)
The court held that the mere recusal of a prosecutor or a single magistrate, without good cause, does not justify the transfer of a criminal case to another court. There are multiple competent courts and prosecutors at Thika Law Courts capable of handling the matter. The prolonged delay in commencing the hearing,...
Source-derived case information.
- Citation
- [2018] KEHC 251 (KLR)
- Parties
- Applicant: Paul Kinuthia; Applicant: James Kararu Kingori; Applicant: Simon Adulan Makato; Respondent: ODPP
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 333 of 2018
- Procedural Posture
- Criminal Revision / Directions on Revision
- Outcome
- Case remitted to Chief Magistrate's Court Thika for expeditious hearing.
- Judges
- CW Meoli
- Legal Topics
- Recusal of Judicial Officers, Transfer of Criminal Cases, Custody and Pretrial Detention
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Kinuthia
Applicant
James Kararu Kingori
Applicant
Simon Adulan Makato
Applicant
ODPP
Respondent
Procedural Posture
Criminal Revision / Directions on Revision
Legal Issues
- 1 Whether the recusal of a prosecutor and a magistrate constitutes sufficient grounds for transfer of a criminal case to another court.
- 2 Whether the accused persons' continued custody without commencement of trial justifies expedited proceedings.
Ratio Decidendi
The court held that the mere recusal of a prosecutor or a single magistrate, without good cause, does not justify the transfer of a criminal case to another court. There are multiple competent courts and prosecutors at Thika Law Courts capable of handling the matter. The prolonged delay in commencing the hearing, with the accused persons remaining in custody for over two years, necessitates expeditious proceedings. The court directed that the file be returned to the Chief Magistrate's Court at Thika for prompt fixing of hearing dates, emphasizing the need to avoid further delay and ensure the accused are produced for trial.
Court Disposition
Case remitted to Chief Magistrate's Court Thika for expeditious hearing.
Orders
- The subject file is to be returned to the Chief Magistrate’s Court Thika.
- The matter is to be placed before the Chief Magistrate on 30th May, 2018 for fixing of early hearing dates.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KIAMBU
CRIMINAL REVISION 333 OF 2018
(Being a revision in respect of orders by Murigi, Chief Magistrate in Thika Criminal Case No. 6625 of 2015)
PAUL KINUTHIA...................................1ST APPLICANT
JAMES KARARU KINGORI...............2ND APPLICANT
SIMON ADULAN MAKATO................3RD APPLICANT
VS.
ODPP........................................................... RESPONDENT
DIRECTIONS ON REVISION
1. On 10th May 2018, the Chief Magistrate sitting at Thika referred Thika Criminal case No. 6625/15 to this court for directions. The order was precipitated by a successful request by the court prosecutor to recuse himself from conducting the prosecution. The request was based on undisclosed “personal reasons”.
2. The record shows that the accused persons were arraigned in court on 22/12/15, charged with the offence of Robbery with violence contrary to section 296(2) of the Penal Code. Since then, several hearing dates have come and gone; the hearing has not started. Meanwhile the accused have remained in custody.
3. Hon. Omodho Senior Resident Magistrate who was seized of the matter on the last hearing date, the 15th March, 2018, recused himself on that date, citing “serious threats” to his security and the accused’s conduct in court. On the same date, the matter was placed before Hon. Murigi Chief Magistrate who made the order to refer the case to this court for directions.
4. I have perused the record of the lower court file and in particular the proceedings of the 15th March, 2018. On the face of it, only one magistrate and prosecutor have recused themselves from handling the subject matter. The accused persons objected to the referral of the case to this court, stating that the complainant hails from Kiambu. It would seem that the Accused understood the referral this to mean a transfer, and were apprehensive about their case proceeding in Kiambu.
5. In my view, the recusal of the prosecutor without any good grounds being stated is not enough reason for the transfer of the case to another court, as I presume to be the implied request by Hon. Chief Magistrate. Ditto for the recusal of one trial magistrate. There are several courts at Thika Law Courts including the Chief Magistrate’s which are competent to handle the case herein, and should. This matter has pended for two years. The accused persons are in custody. I see no reason why a different prosecutor and court at Thika Law Courts other than the ones who have recused themselves cannot proceed to hear the matter to conclusion.
6. I therefore direct that the subject file be returned to the Chief Magistrate’s court Thika, and placed before the Chief Magistrate on 30th May, 2018 for fixing of early hearing dates. The matter is to be expedited in light of previous delay. For this purpose, a production order is issued for the production of the three accused persons currently held at the G.K Prison Nyeri.
Delivered and signed at Kiambu this 22nd Day of May, 2018.
..............
C. Meoli
JUDGE