https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11209

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU CRIMINAL DIVISION CRIMINAL REVISION NO. E012 OF 2026 REPUBLIC ....................................................................................... APPLICANT WILSON OCHOLA ASORO ...................................................... RESPONDENT - VERSUS - R U L I N G O N R E V I S I O N 1. Sections 362 and 364 of the Criminal Procedure Code provides: - “362. The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court. 364. (1) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may— Page 1 of 5 (a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence; (b) in the case of any other order other than an order of acquittal, alter or reverse the order. ....” 2. There is no special procedure by which this jurisdiction is to be invoked. It may be invoked by the Court itself suo motto, or by way of letter or even application by any of the parties, the accused, the prosecution or any Interested Party. All that matters is that this Court, the High Court, is notified of an alleged irregularity or illegality in a criminal proceeding before a trial court. 3. By a Motion on Notice dated 29/5/2026, the Prosecutor of Winam Law Courts applied for this Court to call for the original file of the trial court in Winam SPMCCR Case No. E275 of 2023 – Republic vs Wilson Ochola Asoro Winam for purposes of ascertaining the correctness, legality of the proceedings of 26/5/2026. That the matter had 2 days 26th and 27th May, 2026 for hearing but unfortunately, the latter date was gazetted as a public holiday to mark Eid- Ul-Adha. 4. I have called for the original court record and considered the same. In the matter, Wilson Ochola Asoro was arraigned before the Senior Principal Magistrate’s Page 2 of 5 Court, Winam on 31/7/2023 with the offence of obtaining money by false pretences contrary to section 313 of the Penal Code. 5. It was alleged that on the diverse dates between 12th day of July, 2020 and 21st day of September 2022 at Chiga area in Kisumu East Sub-County in Kisumu County within Nyanza Region with intent to defraud, he obtained Kshs.2,517,332/- (Two Million, Five Hundred and Seventeen Thousand, Three Hundred and Thirty Two Shillings only) from one George Otieno Apella by falsely pretending that he was in a position to lease him several parcels of land for sugarcane farming, a fact he knew was false. 6. He denied the charge and the prosecution was to parade 3 witnesses. 2 witnesses testified by 15/7/2024. The matter was severally adjourned. Early in the year, the Hon. Ogal, PM, was transferred and Hon. Nyigei SPM took over. On 6/5/2026, directions under section 200 of the Criminal Procedure Code were given that the matter proceed from where it had reached. The Court then fixed the matter for further hearing on 26th and 27th May, 2026. 7. When the matter came up for further hearing on 26/5/2026, the Prosecutor told the Court that he had no witness. That he had been informed that PC Tula, the Investigations Officer had been transferred to Kisii. On that ground, the prosecutor sought an adjournment that was opposed by the defence. After considering that the matter was of 2023 and that the last witness testified on 15/7/2024, the Court declined to adjourn the matter and closed the prosecution Page 3 of 5 case. That is the decision this Court is being asked to consider its regularity, irregularity, legality or illegality and set the same aside as the case may be. 8. Firstly, whether to grant an adjournment or not is in the discretion of the trial court. Such a discretion is however, not to be exercised capriciously. The Court has to consider the circumstances of each case. In Mbogo vs Shah (1968) EA, the Court of Appeal held that an appellate court will not normally interfere with a trial court’s unfettered judicial discretion unless the decision is clearly wrong, is based on a misdirection, or fails to consider relevant factors. 9. In the present case, the trial court considered that the case was very old, a 2023 case, that for all that period only 2 witnesses had testified; that the last witness had testified nearly over two years ago, July, 2024. 10.Secondly, the circumstances under which the adjournment was sought militated against the granting of the adjournment. The Court was neither told when PC Tula was transferred to Kisii nor when the prosecutor learnt of that information and what he had done to ameliorate the situation. Further, the next day on which the case was fixed for hearing, fell on a holiday meaning that the adjournment would have been for a very long time. 11.Article 159 of the Constitution of Kenya provides that justice should not be delayed. Further, under Article 50 of the Constitution, one of the rights of an accused person is fair hearing. This includes the right “to have the trial begin and conclude without un reasonable delay” under Sub-Article 2(e). In the Page 4 of 5 circumstances of this case, to allow the sought for adjournment would have amounted to condoning unreasonable delay of the case. 12.Accordingly, I find that the proceedings and order of 25/6/2026 were lawful, legal and regular. I decline to review the same. It is so ordered. DATED and DELIVERED at Kisumu this 24th day of July, 2026. A. MABEYA, FCI Arb JUDGE Page 5 of 5