https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8747

Tonui & another v Republic & another (Criminal Application E032 of 2025) [2026] KEHC 8747 (KLR) (23 June 2026) (Ruling) Neutral citation: [2026] KEHC 8747 (KLR) Republic of Kenya In the High Court at Bomet Criminal Application E032 of 2025 JK Ng'arng'ar, J June 23, 2026 Between Edwin Kipngeno Tonui 1st Applicant Sharon Chepkoech 2nd Applicant and Republic Respondent and In Charge ODPP Kericho County Interested Party Ruling 1.Through the Notice of Motion Application dated 24th October 2025, the Applicants sought the following orders: -i.Spent.ii.Spent.iii.Spent.iv.That this Honourable Court be pleased to transfer the entire proceedings in Republic vs Edwin Kipngeno Tonui & Sharon Chepkoech in Sotik Principal Magistrate’s Court Criminal Case Number E928/24 to the Kericho Chief Magistrate’s Court.v.That in the alternative to IV above, this Honourable Court be pleased to call for the lower court proceedings in Republic vs Edwin Kipngeno Tonui & Sharon Chepkoech in Sotik Principal Magistrate’s Court Criminal Case Number E928/24 and quash all the charges preferred against the Applicants.vi.That costs of this Application and the entire suit be provided.vii.Any other or further relief that this Honourable Court shall deem fit to grant. 2.The Application was brought under Articles 50 and 164 of the Constitution of Kenya, sections 67, 71, 72, 76, 78, 79 and 81 of the Criminal Procedure Code and section 146 (4) of the Evidence Act. It was premised on the grounds on the face of the Application and further by the Supporting Affidavit sworn by Edwin Kipngeno Tonui on 24th October 2025. The Applicants’ case 3.The Applicants stated that they were arrested on 6th September 2024 at Litein in Bureti Sub-County within Kericho County. That upon their arrest, they were arraigned in Kericho Chief Magistrate’s Court on 19th September 2024 and the file was returned due to insufficient evidence. The Applicants further stated that Kericho county was within the geographical jurisdiction of Kericho Law Courts and not Sotik Law Courts. 4.It was the Applicants’ case that upon their arrest, they were allowed police bail by the OCS Litein Police Station and bonded to appear before Kericho Law Courts. It was the Applicants’ further case that when they attended court on 19th September 2024, they were informed by the Interested Party that their charges had not been registered as the complainant was not the registered owner of the disputed property. That despite the refusal to register their charges, the OCS Litein Police Station refused to discharge them and issued them with a fresh cash bail. 5.The Applicants stated that they presented themselves before court on 24th September 2024 and their charges had not been registered again. That the complainant forum shopped and presented the file before ODPP Sotik who proceeded to register the charge sheet. The Applicants further stated that the Respondent did not make the requisite Application to have this case properly transferred from Kericho Law Court to Sotik Law Court as per the provisions of sections 71, 72, 78 and 81 of the Criminal Procedure Code. 6.As at the time of writing this Ruling, the Respondent had neither replied to the Application nor filed its written submissions as directed by this court. The Application therefore stood unopposed. 7.I have gone through the Notice of Motion Application dated 24th October 2025 and the only issue I have sieved for my determination was whether the said Application had merit. 8.It was the Applicants’ case that they were arrested in Litein within Kericho County and were presented before Kericho Law courts to answer to the charge of malicious damage to property contrary to section 339 (1) of the Penal Code. They further stated that their charge sheet was not registered in Kericho Law Court but was registered in Sotik Law Courts illegally. They sought to have their criminal matter transferred back to Kericho Law Courts. 9.As I have earlier stated, the Application was unopposed which meant that the Applicants’ assertions stood unchallenged. The Applicants produced receipts which indicated that they had been admitted to bail while at Litein Police Station. They also produced a Charge Sheet which indicated that they had been produced before the Chief Magistrate’s Court at Kericho. 10.The Applicants stated that they were arrested within Kericho County and the cause of action arose within the same county and not Bomet County. On this issue, section 71 of the Criminal Procedure Code provides: -Subject to the provisions of section 69, and to the powers of transfer conferred by sections 79 and 81, every offence shall ordinarily be tried by a court within the local limits of whose jurisdiction it was committed, or within the local limits of whose jurisdiction the accused was apprehended, or is in custody on a charge for the offence, or has appeared in answer to a summons lawfully issued charging the offence. 11.Section 72 of the Criminal Procedure Code provides: -When a person is accused of the commission of an offence by reason of anything which has been done or of any consequence which has ensued, the offence may be tried by a court within the local limits of whose jurisdiction the thing has been done or the consequence has ensued. 12.Section 78 (1) of the Criminal Procedure Code provides: -If upon the hearing of a complaint it appears that the cause of complaint arose outside the limits of the jurisdiction of the court before which the complaint has been brought, the court may, on being satisfied that it has no jurisdiction, direct the case to be transferred to the court having jurisdiction where the cause of complaint arose. 13.Section 81 of the Criminal Procedure Code provides: -(1)Whenever it is made to appear to the High Court—(a)that a fair and impartial trial cannot be had in any criminal court subordinate thereto; or(b)that some question of law of unusual difficulty is likely to arise; or(c)that 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 or is required by any provision of this Code,it may order—i.that an offence be tried by a court not empowered under the preceding sections of this Part but in other respects competent to try the offence;ii.that a particular criminal case or class of cases be transferred from a criminal court subordinate to its authority to any other criminal court of equal or superior jurisdiction;(iii)that an accused person be committed for trial to itself.(2)The High Court may act on the report of the lower court, or on the application of a party interested, or on its own initiative.(3)Every application for the exercise of the power conferred by this section shall be made by motion, which shall, except when the applicant is the Director of Public Prosecutions, be supported by affidavit.(4)An accused person making any such application shall give to the Director of Public Prosecutions notice in writing of the application, together with a copy of the grounds on which it is made, and no order shall be made on the merits of the application unless at least twenty-four hours have elapsed between the giving of notice and the hearing of the application.(5)When an accused person makes any such application, the High Court may direct him to execute a bond, with or without sureties, conditioned that he will, if convicted, pay the costs of the prosecutor. 14.From the above provisions of the law, it is clear that this court has the power to transfer cases within subordinate courts if it is satisfied, as in the present case, that the cause of action arose in a different geographical or territorial region. In this case, I am satisfied that the cause of action arose within Kericho County and the transfer of the criminal case from Kericho Law Courts to Sotik Law Courts was not only irregular but illegal. 15.In the final analysis, it is my finding that the Application has merit. The case, Republic vs Edwin Kipngeno Tonui & Sharon Chepkoech in Sotik Principal Magistrate’s Court Criminal Case Number E928/24 is hereby transferred from Sotik Law Courts to Kericho Law Courts. There will be no orders as to costs. 16.File is closed. RULING DELIVERED, DATED AND SIGNED THIS 23RD DAY OF JUNE, 2026.........................................HON. JULIUS K. NG’ARNG’ARJUDGERuling delivered in the presence of;Siele/Susan – Court AssistantsMs Koech for the StateMorate for Applicant