[2007] KEHC 996 (KLR)
The High Court found that the cancellation of the appellants. bond was not justified, as the alleged threats against witnesses did not prejudice the prosecution, given that the witnesses had already testified. Consequently, the order canceling the bond was set aside and the bond reinstated. Regarding the request to...
Source-derived case information.
- Citation
- [2007] KEHC 996 (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
- Criminal Appeal / Ruling on Interlocutory Applications
- Outcome
- Application for revision of bond cancellation allowed; application for transfer of trial dismissed.
- Legal Topics
- Bond Cancellation, Transfer of Criminal Case, Judicial Bias, Revision of Magistrate Orders
- 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
Stephen Muriithi Wangera
Appellant
Kennedy Murimi Mwaniki
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Interlocutory Applications
Legal Issues
- 1 Whether the order canceling the appellants. 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 the cancellation of the appellants. bond was not justified, as the alleged threats against witnesses did not prejudice the prosecution, given that the witnesses had already testified. Consequently, the order canceling the bond was set aside and the bond reinstated. Regarding the request to transfer the trial to another court, the court held that there was no evidence of bias on the part of the Trial Magistrate. The mere act of canceling the bond, even if a misdirection, did not amount to bias. Furthermore, the applicants had not executed the bond required under section 81 of the Criminal Procedure Code for transfer applications. Therefore, the application for...
Court Disposition
Application for revision of bond cancellation allowed; application for transfer of trial dismissed.
Orders
- The order of the Trial Magistrate canceling the bond is set aside.
- The bond of the applicants is reinstated forthwith.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Misc Crim Appeal 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