[2010] KEHC 2358 (KLR)
The court found that the interests of justice, convenience of witnesses, and the accused, as well as the presence of a competent magistrate at Busia, justified the transfer of the case back to Busia. The court noted that the case had been delayed due to the transfer of the trial magistrate and that starting the case...
Source-derived case information.
- Citation
- [2010] KEHC 2358 (KLR)
- Parties
- Applicant: Ramadhan Salim Shaban; Applicant: Robert Ogare; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 17 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer of Criminal Case
- Outcome
- application allowed
- Legal Topics
- Transfer of Criminal Cases, Venue of Trial, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ramadhan Salim Shaban
Applicant
Robert Ogare
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer of Criminal Case
Legal Issues
- 1 Whether Bungoma CM Criminal Case No.405 of 2009 should be transferred to Busia SPM Court for hearing and determination.
- 2 Whether the transfer would serve the interests of justice and convenience for witnesses and accused persons.
Ratio Decidendi
The court found that the interests of justice, convenience of witnesses, and the accused, as well as the presence of a competent magistrate at Busia, justified the transfer of the case back to Busia. The court noted that the case had been delayed due to the transfer of the trial magistrate and that starting the case afresh in Bungoma would cause further delay. The court emphasized that it is generally preferable for cases to be heard in the locality where the alleged offence occurred, both for convenience and to facilitate the attendance of witnesses. The court also considered the applicants' difficulties in accessing documents and the 1st applicant's health condition. Given these...
Court Disposition
application allowed
Orders
- Bungoma CM Criminal Case No.405 of 2009 is transferred to Busia SPM Court forthwith.
- The case to be heard by a magistrate of competent jurisdiction other than Mr. E. Obaga Senior Principal Magistrate.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
Miscellaneous Application 17 of 2010
RAMADHAN SALIM SHABAN...............................APPLICANTS
ROBERT OGARE.....................................................APPLICANTS VS REPUBLIC...............................................................RESPONDENT
RULING.
This is a ruling on an application for transfer of Bungoma CM Criminal Case No.405 of 2009 to Busia.The Applicants are the accused persons in that case.The case originated from Busia Court.It was transferred to Bungoma Court by Mr. E. Obaga SPM, Busia for the reason that being the only magistrate who was competent to hear the case in the station he was hearing yet another case of similar nature facing the accused persons.The reasons given in the application are that it will be more convenient to have witnesses who are all from Busia to testify at Busia court.The Appellants allege that they have been unable to access documents in the hands of the Busia Police including witness statements and charge sheets due to the distance involved.The case was transferred without the consent of the Applicants.The 1st Applicant said he is sickly being HIV positive and needs help from his relatives who are living in Busia.
The state opposed the application on grounds that a Bungoma court hearing the matter can still visit the scene of crime at Busia if need be and that witnesses will be summoned to come to Bungoma.The State Counsel, Mr. Ogoti submitted that Mr. Obaga has another case before him and is the only competent magistrate who can hear the case.
I have perused the lower court file and find that the case was transferred to Bungoma CM court in 2009. It was heard by one Sogomo G. Senior Resident Magistrate who later went on transfer.The succeeding court ordered that the case starts afresh.The case is yet to commence being heard as we stand.
It is always in the interests of justice that a case is heard and disposed of in a court situated in the area that the incident leading to the case took place.This is economical in way of cost and time and convenient to both the accused persons and the prosecution.The application have several other ground in their affidavit which I agree make sense in the endeavour to have this case transferred. This is a case which has delayed due to the transfer of the trial magistrate and in view of the order to start it “de novo” more time is likely to be spent in the fresh hearing at Bungoma as opposed to Busia where the witnesses are living.
I have been reliably informed that Busia now has another magistrate other than Mr. Obaga who has jurisdiction to hear the case.He is a Senior Resident magistrate by rank.For the foregoing reasons and for the need for expeditious disposal of this case, I hereby allow the application.I therefore order that Bungoma CM Criminal Case No.405 of 2009 be and is hereby transferred to Busia SPM Courtforthwith.To be heard by a magistrate of competent jurisdiction other than Mr. E. Obaga Senior Principal Magistrate.
The Applicants shall be remanded at Busia G. K. Prison pending the disposal of the case.
F. N. MUCHEMI
JUDGE
Ruling dated and delivered in open court in the presence of the Applicants and the State Counsel Mrs leting on the 17thday of June, 2010.
F. N. MUCHEMI
JUDGE