[2015] KEHC 2747 (KLR)
The court found that although the offence and witnesses are connected to Athi River, now under the jurisdiction of Mavoko Law Courts, the application for transfer was only made in respect of one accused person despite there being two accused persons in the charge sheet. There was no explanation for this selective...
Source-derived case information.
- Citation
- [2015] KEHC 2747 (KLR)
- Parties
- Applicant: Republic; Respondent: Wilson Mbithi Munguti
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application Case19 of 2013
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application to Transfer Criminal Case
- Outcome
- application dismissed with costs
- Judges
- BT Jaden
- Legal Topics
- Transfer of Criminal Cases, Jurisdiction of Magistrates Courts, Access to Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Wilson Mbithi Munguti
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application to Transfer Criminal Case
Legal Issues
- 1 Whether the criminal case should be transferred from Machakos Law Courts to Mavoko Law Courts for hearing and determination.
- 2 Whether the application for transfer is justified when only one accused is the subject of the application despite there being two accused persons.
- 3 Whether the transfer would serve the interests of justice and convenience for the parties and witnesses.
Ratio Decidendi
The court found that although the offence and witnesses are connected to Athi River, now under the jurisdiction of Mavoko Law Courts, the application for transfer was only made in respect of one accused person despite there being two accused persons in the charge sheet. There was no explanation for this selective application, and no evidence was provided to show how access to justice would be enhanced by transferring only one accused's case. The court held that the application lacked merit and dismissed it with costs.
Court Disposition
application dismissed with costs
Orders
- The application to transfer Machakos CMC Cr. 869/2011 to Mavoko Principal Magistrate’s Court is dismissed with costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL MISC. APPLICATION CASE NO. 19 OF 2013
REPUBLIC ……........………………………………………… APPLICANT
AND
WILSON MBITHI MUNGUTI …….………………………… RESPONDENT
R U L I N G
The application dated 4/2/2013 seeks orders that Machakos CMC Cr. 869/2011 be transferred to the Mavoko Principal Magistrate’s Court for hearing and determination.
It is stated in the affidavit in support of the application that the offence was committed in Athi River which previously fell under the jurisdiction of Machakos Law Courts. That Athi River currently falls under the jurisdiction of Mavoko Law Courts. That all the witnesses reside within Athi River Municipality and the continued prosecution of this case at the Machakos Law Courts has subjected the witnesses to untold hardship. That the transfer of this case to Mavoko Law Courts will be convenient to all the parties. It is further deponed that the Respondent has no other pending cases at Mavoko Law Courts.
The application is opposed. The Respondent has stated in his replying affidavit that a similar application was made before the trial court and the same was rejected. That there was no appeal or review sought by the prosecutor. That there is no application to transfer the case against his co-accused. The Respondent read malice in the application for transfer.
The application was canvassed by way of written submissions which I have duly considered.
It is not in dispute that the alleged offence took place in Athi River and that the witnesses also come from Athi River within the jurisdiction of Mavoko Law Courts. This case was filed at the Chief Magistrate’s Court, Machakos before Mavoko Law Courts became operational. The devolution of the court is supposed to ease access to justice. However, there is no explanation why the prosecution would apply for the transfer of the Respondent’s case only when the charge sheet annexed to the affidavit in support clearly reflects that there are two accused persons, that is the Respondent and one Josphat Mwenda John. It is not clear from the application how there will be easier access to justice since the application is in respect of only one accused person. In the circumstances I find the application has no merits and dismiss it with costs.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakosthis 17th day of March2015.
………………………………………
B. THURANIRA JADEN
JUDGE