[2006] KEHC 363 (KLR)
The court found that the applicant failed to provide sufficient grounds to justify the transfer of the case. The mere fact that the magistrate had previously heard part of the evidence in an earlier, withdrawn case involving the same offence and parties did not, in itself, establish a reasonable apprehension of bias...
Source-derived case information.
- Citation
- [2006] KEHC 363 (KLR)
- Parties
- Applicant: Simeon Robi Marwa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 108 of 2005
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Transfer of Criminal Case
- Outcome
- application dismissed
- Legal Topics
- Transfer of Criminal Cases, Judicial Bias, Recusal of Judicial Officer
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simeon Robi Marwa
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 the transfer of the criminal case from the current magistrate's court.
- 2 Whether prior partial hearing by the magistrate constitutes a reasonable apprehension of bias.
Ratio Decidendi
The court found that the applicant failed to provide sufficient grounds to justify the transfer of the case. The mere fact that the magistrate had previously heard part of the evidence in an earlier, withdrawn case involving the same offence and parties did not, in itself, establish a reasonable apprehension of bias or partiality. The court noted that only one witness had completed testimony before the withdrawal, and the second witness had not finished giving evidence. The judge was satisfied that the magistrate was capable of remaining impartial and would not be influenced by the previous proceedings. Accordingly, the application for transfer was found to be without merit and was rejected.
Court Disposition
application dismissed
Orders
- The application for transfer of Migori PM Cr. C. No. 524 of 2005 is rejected.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA OF KISII
Crim Misc Appli 108 of 2005
SIMEON ROBI MARWA ………………......………………. APPLICANT
VERSUS
REPUBLIC ……..…………………………….…………. RESPONDENT
(From original Migori PM’s Court Criminal Case No. 524 of 2005)
RULING:
The applicant is the second accused person in Migori PM Cr. C. No. 524 of 2005 where they are charged with forgery. He seeks to have the case transferred from Migori court to any other subordinate court with jurisdiction for hearing and disposal.
It was deponed by the applicant and retaliated in submission by Mr. Soire that the applicant was initially charged of the same offence vide Migori PMCCr. No. 777 of 2004. The hearing started before Mr. E. Awino PM and two witnesses gave evidence. The prosecution then withdrew the case under s.87 (a) CPC. Applicant was re-arrested and charged again jointly with Esther Bosibori Minyonga who is now the first accused person. The said Bosibori was the second witness who had testified before Mr. Awino. The hearing of the new case is set to be heard by the same Magistrate.
It was submitted that the magistrate having heard part of the evidence would not be partial if he were to hear the case all over again.
The application was opposed by the learned Senior State Counsel.
I have considered the application. Indeed Mr. Awino the Principal Magistrate heard two witnesses. However a part from this there is no other reason given by the applicant as to why he fears the magistrate will be biased. I think his fear is misplaced. The fact that the magistrate heard the evidence of two witnesses alone would not lead to his being impartial. Infact from the proceedings on record he heard only one witness fully. The second witness never finished giving her evidence before the prosecution withdrew the case. I believe the magistrate is well level headed not to let previous evidence influence his decision.
In the circumstances I find no merit in the application and reject it.
Dated 7th March 2006.
KABURU BAUNI
JUDGE
CC – Mobisa
Mr. Soire for Applicant
Mr. Kemo for Respondent