[2006] KEHC 2671 (KLR)
The court held that while the magistrate's application of legal principles was not seriously faulted, the accused persons' categorical assertion that they would not receive justice in the current court, supported by sound reasons (even if not evidenced), was sufficient to warrant a transfer. The court emphasized...
Source-derived case information.
- Citation
- [2006] KEHC 2671 (KLR)
- Parties
- Applicant: Republic; Respondent: Peter Musyoki Mwinsa; Respondent: Julius Munyoka Musyoka alias Munyoki Mbuli
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 7 of 2006
- Procedural Posture
- Criminal Revision / Ruling on Application for Transfer of Case
- Outcome
- Application for transfer of criminal cases allowed.
- Legal Topics
- Transfer of Criminal Cases, Fair Trial Rights, Judicial Bias
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Peter Musyoki Mwinsa
Respondent
Julius Munyoka Musyoka alias Munyoki Mbuli
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Transfer of Case
Legal Issues
- 1 Whether the accused persons have demonstrated sufficient grounds for transfer of their criminal cases to another court.
- 2 Whether the perception of bias or lack of confidence in the trial court by the accused warrants transfer of the case.
Ratio Decidendi
The court held that while the magistrate's application of legal principles was not seriously faulted, the accused persons' categorical assertion that they would not receive justice in the current court, supported by sound reasons (even if not evidenced), was sufficient to warrant a transfer. The court emphasized that it is not necessary for the accused to prove the reasons; it is enough if the allegations might be true and could create a perception of unfairness. Accordingly, to preserve the appearance and reality of justice, the cases were ordered transferred to another magistrate with jurisdiction.
Court Disposition
Application for transfer of criminal cases allowed.
Orders
- Mwingi SRM Cr. Case No. 463 of 2006 and 308 of 2006 are transferred to Machakos for hearing and final determination.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Criminal Revision 7 of 2006
REPUBLIC……………………...................………………………PROSECUTOR
VERSUS
PETER MUSYOKI MWINSA
JULIUS MUNYOKA MUSYOKA ALIAS…..MUNYOKI MBULI…….ACCUSED
I have examined the proceedings in the above quoted files including the ruling by the Senior Resident Magistrate dated 30/9/2005. The Principles that the Honourable Magistrate applies to come to the decision in the ruling are not to be seriously faulted. However the accused have categorically asserted that they do not think they will receive Justice in the said court. They mentioned sound reasons although they have not given evidence to support those reasons. In my view they do not have to prove the reasons. It is enough to prove the reasons. It is enough if what they allege might be true.
For example if they now be forced to be tried by the said court, it will not be seen to be fair. But this practice of accused
deciding to wish cases transferred when there has been advanced hearing and without clear reasons, will not in future be accepted.
For the above reasons the cases should be transferred to be heard and be determined by another magistrate with jurisdiction.
ORDER
Mwingi SRM Cr. Case No. 463 of 2006, 308 for 2006 are hereby transferred to Machakos for hearing and final determination.
D.A. Onyancha
JUDGE
4/4/06