[2016] KEHC 1888 (KLR)
The court found that, as a matter of law, the trial should ordinarily take place in the High Court at Kitui, where the alleged offence occurred, in accordance with Section 78(1) of the Criminal Procedure Code. However, given the State's objection and the need for a clear record and opportunity for both parties to...
Source-derived case information.
- Citation
- [2016] KEHC 1888 (KLR)
- Parties
- Applicant: Republic; Respondent: Gilbert Maina & 2 Others
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 35 of 2016
- Procedural Posture
- Criminal Case / Preliminary Objection Prior to Plea
- Outcome
- Preliminary objection noted; plea deferred pending formal application on venue.
- Judges
- DO Ogembo
- Legal Topics
- Territorial Jurisdiction, Venue of Trial, Preliminary Objection
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Gilbert Maina & 2 Others
Respondent
Procedural Posture
Criminal Case / Preliminary Objection Prior to Plea
Legal Issues
- 1 Whether the High Court at Machakos has jurisdiction to take plea and try the accused or if the matter should be transferred to Kitui High Court where the alleged offence occurred.
- 2 Whether the plea should be deferred pending determination of the proper venue for trial.
Ratio Decidendi
The court found that, as a matter of law, the trial should ordinarily take place in the High Court at Kitui, where the alleged offence occurred, in accordance with Section 78(1) of the Criminal Procedure Code. However, given the State's objection and the need for a clear record and opportunity for both parties to present their arguments, the court directed that the defence file a formal application objecting to plea in Machakos. This would allow the State to respond formally and the court to make a considered determination on the proper venue for plea and trial. The plea was therefore deferred pending the filing and determination of the formal application.
Court Disposition
Preliminary objection noted; plea deferred pending formal application on venue.
Orders
- Defence to file a formal application objecting to plea being taken in Machakos.
- State to respond to the formal application.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL CASE NO. 35 OF 2016
REPUBLIC………………………………………….…………………….....PROSECUTOR
VERSUS
GILBERT MAINA & 2 OTHERS……………………………………………….ACCUSEDS
RULING OF THE COURT
This matter was coming up for plea when the defence raised a Preliminary Objection stating that the plea be deferred and that the file be transferred to High Court in Kitui because that is where the alleged offence took place.
The defence team led by Messers Cliff Ombeta, Mushokiand Mbugua submitted that it is a matter of law that plea has to be taken in the High Court with jurisdiction, and that is the Kitui High Court.
They Cited Section 78(1) of Criminal Procedure Code which states that the trial would be conducted where the cause of action arose.
M/S Rono andMr. Machogu for the State objected to that Preliminary Objection. The state team submitted that the accused person is a police officer in Kitui and that the matter is being investigated by police officers both in Machakos and in Nairobi and that there is a strong likelihood that if the trial is conducted in Kitui the accused will interfere with the police investigations.
I have carefully considered the Preliminary Objection raised by the defence team. I agree with the defence team that under the law the trial should indeed take place in Kitui High Court. However, due to objection by the state which also appears on the face of the record to make sense, I order and direct that the defence files a formal application objecting to plea in Machakos.
This will give the state an opportunity to clearly respond and state why they think the plea should be taken, and trial conducted, in Machakos and not Kitui High Court.
Orders accordingly.
DATED, SIGNED AND DELIVERED THIS 4TH DAY OF OCTOBER, 2016
E.K.O. OGOLA
JUDGE
In the presence of;
Mr. Machogu for State
Mr. Mbugua and Kengata for accused
Court Assistant – Mr. Munyao