[2007] KEHC 118 (KLR)
The High Court found that there was no good reason proven to justify the cancellation of the applicants. bond, particularly as the alleged threats against witnesses did not prejudice the prosecution since the witnesses had already given evidence. Accordingly, the order of the Trial Magistrate canceling the bond was...
Source-derived case information.
- Citation
- [2007] KEHC 118 (KLR)
- Parties
- Appellant: Stephen Muriithi Wangera; Appellant: Kennedy Murimi Mwaniki; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- ? 52 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Revision of Bond Cancellation and Transfer of Trial
- Outcome
- Application for revision of bond cancellation allowed; application for transfer of trial dismissed.
- Legal Topics
- Bond Cancellation, Transfer of Criminal Case, Judicial Bias, Fair Trial Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Muriithi Wangera
Appellant
Kennedy Murimi Mwaniki
Appellant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Revision of Bond Cancellation and Transfer of Trial
Legal Issues
- 1 Whether the order canceling the applicants. bond should be revised and the bond reinstated.
- 2 Whether the trial should be transferred to another court on grounds of alleged bias by the Trial Magistrate.
Ratio Decidendi
The High Court found that there was no good reason proven to justify the cancellation of the applicants. bond, particularly as the alleged threats against witnesses did not prejudice the prosecution since the witnesses had already given evidence. Accordingly, the order of the Trial Magistrate canceling the bond was set aside and the bond reinstated. On the issue of transfer, the court held that there was no evidence of bias on the part of the Trial Magistrate; the mere act of canceling the bond did not demonstrate bias, and the applicants had not executed the bond required under section 81 of the Criminal Procedure Code to support a transfer. Therefore, the application for transfer was...
Court Disposition
Application for revision of bond cancellation allowed; application for transfer of trial dismissed.
Orders
- Order of the Trial Magistrate canceling the applicants. bond is set aside.
- Applicants. bond is reinstated forthwith.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
HIGH COURT AT EMBU
MISC CRIM APPLI 52 OF 2007
STEPHEN MURIITHI WANGERA…………………………..1ST APPELLANT
KENNEDY MURIMI MWANIKI………………………………2ND APPELLANT
VERSUS
REPUBLIC………………………....……………..………………RESPONDENT
RULING
The applicants have made two applications the first being the revision of the order canceling their bond. The state counsel has conceded this application and on the reasons advanced by counsel for the applicants, I agree with the state counsel that there is no good reason proven to cancel the bond. The allegation of threats against witnesses do not prejudice prosecution case because the witnesses have already given evidence.
I therefore set aside the order of the Trial Magistrate and order that the bond of the applicants be reinstated forthwith.
J. N. KHAMINWA
JUDGE
The other prayer made is that the trial should be transferred to another court because the Trial Magistrate has shown bias in this matter by canceling the bond against the applicants. The provisions of the transfer of a criminal case by the High Court are contained under section 81 CPC 1 (a) is applicable here. Whenever it is made to appear to the High Court that a fair and impartial trial cannot be heard in any criminal court subordinate thereto the court may order that the case be transferred to another court or that the accused be committed for trial to itself.
In case an accused person makes such an application he shall sign bond with or without sureties conditioned that he will if convicted pay the costs of the prosecutor.
In this case the court has heard submissions of applicants counsel and of the state counsel. The court finds no facts to make it think that the Trial Magistrate shall not be able to give the applicants impartial trial. The fact that she did cancel the bond in the circumstances of this case is no evidence that she was biased against the appellants. It could be that she misdirected herself but there is no bias proved against her.
In the circumstances it does not appear to me that the applicants shall not get impartial trial in her court. Also the applicants have not executed bond as contemplated under section 81 CPC I do not see any reason to order transfer. The criminal case shall remain in the hands of Ojoo Ag. Senior Resident Magistrate at Baricho Court. It is so ordered.
Dated this 2nd July, 2007.
J. N. KHAMINWA
JUDGE