[2004] KEHC 516 (KLR)
The court found that the applicant failed to provide any specific evidence or averment of bias on the part of the magistrate. The applicant had the opportunity to cross-examine all witnesses and did not raise any complaints during the hearing. The application for transfer was only made after the prosecution closed...
Source-derived case information.
- Citation
- [2004] KEHC 516 (KLR)
- Parties
- Applicant: Silas Omwami; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 18 of 2004
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Transfer of Criminal Case
- Outcome
- application dismissed
- Judges
- K Bauni
- Legal Topics
- Transfer of Criminal Cases, Judicial Bias, Right to Fair Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Silas Omwami
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Transfer of Criminal Case
Legal Issues
- 1 Whether the applicant has demonstrated sufficient grounds for transfer of the criminal case from Oyugis Court to Kisii Chief Magistrate's Court.
- 2 Whether adverse rulings against the applicant constitute evidence of judicial bias warranting transfer.
Ratio Decidendi
The court found that the applicant failed to provide any specific evidence or averment of bias on the part of the magistrate. The applicant had the opportunity to cross-examine all witnesses and did not raise any complaints during the hearing. The application for transfer was only made after the prosecution closed its case and the applicant was put on his defence. The mere fact that the court made rulings against the applicant, including in a trial-within-a-trial, does not amount to bias or justify transfer. The court emphasized that transfer of a case requires demonstration of specific reasons showing the magistrate will not be impartial, which was not shown in this application....
Court Disposition
application dismissed
Orders
- The application for transfer of Oyugis Criminal Case No.46 of 2003 to Kisii Chief Magistrate's Court is dismissed.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL MISC.APPL.NO. 18 OF 2004
(From original conviction and sentence of the Senior Resident Magistrate’s Court at Oyugis in Criminal Case No.46 of 2003
SILAS OMWAMI ………………………………………………… APPLICANT.
VERSUS
REPUBLIC ………………………………………………….. RESPONDENT
RULING
The applicant seeks court to order transfer of OYUGIS CRIMINAL CASE NO.46 OF 2003 from that court to Kisii Chief Magistrate’s Court for trial. He deponed and submitted that he would not get justice before the Oyugis Court as he was not allowed to cross examine witnesses and that the court made rulings in favour of the prosecution.
I have considered the application and have the opportunity to go through the lower courts proceedings. I find the application has no merit. There is no specific averment that the magistrate will be biased against the applicant. No reason was cited why he would act so. So far ten witnesses have given evidence. Prosecution closed their case and court ruled that applicant has a case to answer. During the hearing it is clear that he examined all the witnesses. He never raised any complaints. It is only after he was put on his defence he asked for the case to be transferred to another court. He told the court that the ruling in trial-within-a trial was not in his favour. He applied for the case to be taken to another court.
He did not allege any reason for the magistrate to be biased. He did not even as him to disqualify himself. The magistrate did the proper thing to advice him to make application for transfer in the High Court.
The fact that the ruling in trial within a trial was not in his favour is no good reason to have the matter transferred. If at the close of the case the court rules against him due to the ruling in the trial within a trial the applicant then can appeal and canvass any reasons he feels the admission of the statement was not proper. The high court cannot order transfer of a case on an application every time a magistrate rules against an accused person. It must be shown that for some specific reason the magistrate will not be impartial. That has not been shown in the present application and the same is therefore dismissed.
KABURU BAUNI
JUDGE