[2004] KEHC 1729 (KLR)
The court found that the applicants failed to meet any of the statutory criteria under Section 81 of the Criminal Procedure Code for the transfer of a criminal case. Specifically, they did not disclose the nature of the offence or provide sufficient particulars of the case before the trial court. The mere...
Source-derived case information.
- Citation
- [2004] KEHC 1729 (KLR)
- Parties
- Applicant: Reuben S. Ndara; Applicant: Benard B’ Sigowo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- ? 13 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- motion dismissed
- Judges
- JK Sergon
- Legal Topics
- Transfer of Criminal Cases, Judicial Discretion, Venue of Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Reuben S. Ndara
Applicant
Benard B’ Sigowo
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the applicants have established sufficient grounds for the transfer of the criminal case from Sirisia Resident Magistrate’s court to the Principal Magistrate’s court at Bungoma.
- 2 Whether the inconvenience to the applicants justifies the exercise of the court's discretion under Section 81 of the Criminal Procedure Code.
Ratio Decidendi
The court found that the applicants failed to meet any of the statutory criteria under Section 81 of the Criminal Procedure Code for the transfer of a criminal case. Specifically, they did not disclose the nature of the offence or provide sufficient particulars of the case before the trial court. The mere inconvenience to the applicants, without more, was not considered adequate justification for the exercise of the court's discretionary power. As a result, the motion was found to be incompetent and unmeritorious, leading to its dismissal.
Court Disposition
motion dismissed
Orders
- The motion is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
HIGH COURT AT BUNGOMA
misc appl 13 of 04
REUBEN S. NDARA ……………. APPLICANTS
VS
REPUBLIC ……………. RESPONDENT
R U L I N G
Benard B’ Sigowo and Reuben Ndara, the applicants herein took out a motion pursuant to Section 81 (3) and (4) of the criminal procedure code and prayed to this court to inter alia withdraw and transfer Sirisia Resident Magistrate’s Criminal case No. 546 of 2003 from Sirisia Resident Magistrate’s court to the Principal Magistrate’s court at Bungoma. The motion is supported by the affidavit sworn by Benard B’Sigowo dated 28th April 2004.
When the motion came up for interpartes hearing the applicants’ advocate only raised one ground in support. His main argument is that the offence is said to have taken place at Mt. Elgon District where there is no court and that the most accessible court is Bungoma and not Sirisia. He argued that the applicants would be inconvenienced if the case is heard at Sirisia.
The learned Senior state counsel opposed the motion by stating that the applicants had disclosed no sufficient reason. He further submitted that the applicants had not disclosed the full particulars of the case they seek to have withdrawn and transferred to Bungoma. The applicants essentially are seeking to benefit from this court’s discretionary powers donated by Section 81 of the criminal procedure code. However this section sets the conditions which must exist to enable this court freely exercise the discretion as follows:
(a) If a fair and impartial trial cannot be heard or
(b) If a question of law of unusual difficulty is likely to arise or
(c) If a view of the place in or near which any offence has been committed may be required for the satisfactory trial of the offence or
(d) That an order under this section will tend to the general convenience of the parties or witnesses or
(e) That such an order is expedient for the ends of justice. A cursory look at the motion reveals that none of the above criteria has been met. The applicants have not set out the nature of the offence facing them before the Resident Magistrate’s court, Sirisia. The failure to lay down the basic foundation of the criminal case before the trial court renders the whole motion incompetent and unmeritorious.
The upshot therefore is that this motion must fail. It is dismissed with not order as to costs.
DATED AND DELIVERED THIS 30th DAY OF July 2004
J.K. SERGON
JUDGE