[2023] KEHC 1989 (KLR)
The court found that since the applicant and one witness had already testified in the Makadara Chief Magistrates Court, there was no necessity for them to travel again to Nairobi for the remainder of the trial. For the remaining two witnesses, the court held that their travel expenses could be reimbursed upon...
Source-derived case information.
- Citation
- [2023] KEHC 1989 (KLR)
- Parties
- Applicant: Naran Premji Vekaria T/A Ukunda Mpya Hardware Shop; Respondent: Inspector General of the National Police Service; Respondent: Director Of Public Prosecutions; Interested Party: Hirani Bhupendra Nathalal
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E205 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application to Transfer Criminal Case
- Outcome
- application dismissed
- Judges
- A. Ong’injo
- Legal Topics
- Transfer of Criminal Cases, Jurisdiction of Courts, Virtual Hearings, Witness Management
- 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
Naran Premji Vekaria T/A Ukunda Mpya Hardware Shop
Applicant
Inspector General of the National Police Service
Respondent
Director Of Public Prosecutions
Respondent
Hirani Bhupendra Nathalal
Interested Party
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application to Transfer Criminal Case
Legal Issues
- 1 Whether the High Court should transfer Makadara Chief Magistrates Court CR Case No 1095 of 2020 to Mombasa Chief Magistrate Court on grounds of convenience and justice.
- 2 Whether the applicant and witnesses would suffer injustice or hardship if the trial continues in Nairobi.
- 3 Whether arrangements for virtual testimony or reimbursement of travel expenses are sufficient alternatives to transfer.
Ratio Decidendi
The court found that since the applicant and one witness had already testified in the Makadara Chief Magistrates Court, there was no necessity for them to travel again to Nairobi for the remainder of the trial. For the remaining two witnesses, the court held that their travel expenses could be reimbursed upon application by the prosecuting counsel, or alternatively, arrangements could be made for their testimonies to be taken virtually. The court concluded that the grounds advanced by the applicant did not warrant the transfer of the case from Nairobi to Mombasa, and that the interests of justice could be met through the available alternatives. Accordingly, the application for transfer...
Court Disposition
application dismissed
Orders
- The application to transfer Makadara Chief Magistrates Court CR Case No 1095 of 2020 to Mombasa Chief Magistrate Court is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
Vekaria t/a Ukunda Mpya Hardware Shop v Inspector General of the National Police Service & another; Nathalal (Interested Party) (Miscellaneous Criminal Application E205 of 2022) [2023] KEHC 1989 (KLR) (2 February 2023) (Ruling)
Neutral citation: [2023] KEHC 1989 (KLR)
Republic of Kenya
In the High Court at Mombasa
Miscellaneous Criminal Application E205 of 2022
A. Ong’injo, J
February 2, 2023
Between
Naran Premji Vekaria T/A Ukunda Mpya Hardware Shop
Applicant
and
Inspector General of the National Police Service
1st Respondent
Director Of Public Prosecutions
2nd Respondent
and
Hirani Bhupendra Nathalal
Interested Party
Ruling
1. By an Application dated September 5, 2022, the Applicant sort that Makadara Chief Magistrates Court CR Case No 1095 of 2020 be transferred to Mombasa Chief Magistrate Court for hearing and determination for reasons that the cause of action arose in Ukunda within Coast Region and that he was the Complainant.
2. The Application is supported by the Affidavit of the Applicant sworn on September 5, 2022.
3. This Court ordered that each should be provided with certified copies of the proceedings in Makadara CR Case 1095 of 2020 and it was established that so far the Applicant and other witnessed had already testified. This Application was opposed by the replying affidavit of the interested parties sworn on December 5, 2022. The interested party averred that the application is being used to deceive the court and that the applicant has come to court with unclean hands as they fail to disclose that they had already testified. The interested parties also averred that the application and orders has not been served on the trial court in Makadara and that the applicants have not explained why they want the matter to be heard in Mombasa if the cause of action arose in Ukunda.
4. The respondents did not file a response opposing the application but on February 7, 2023 Mr Ngiri for the 2nd respondents submitted that he had confirmed that the applicant and other witness had already testified in the trial in Makadara Court. He was of the view that the Applicant would attend the court virtually to save on transport costs.
5. Directions were taken that the application was to be canvassed by way of written submissions and it is only the applicants to file submissions on February 14, 2023 to the effect that the investigating officers be based in Nairobi had not had a chance to see the premises or the place where the offence was committed and that the employee and other witnesses were not interviewed. That because of the distance the complainant arrive in Nairobi and took the witness stand without a pre=trial conference with the prosecuting counsel and a such it is clear that an injustice is being occassed and shall be occasioned due to the distance . It was further submitted that the remaining witnesses will have to incur expenses if they are to go to Nariobi for trial and the 2 witneses whose statements were not taken may not get the opportunity to testify.
6. Mr Magolo Advocate for the Applicant argued that offence committed in Ukunda and that the High Court in Mombasa has the jurisdiction to transfer the matter from Nairobi. He said that distance had made it difficult for consultation between the applicant and the offence of the dpp as well as the dcio in Nairobi and as a result there is no witnesses expected from the bank yet cheques are issued. That if the transfer is not allowed the end result is a mockery to justice. He said that the suspects should be acquitted only after a proper free and fair trial.
7. This court has considered that the application seeking that the trial in Makadara CR Case 1095 of 2010 be transferred to Mombasa Chief Magistrate Court on account that Applicant and witnesses have to travel to Nairobi for the matter and that is very expensive and find that the Appliant and 1 witness having testified it will not be necessary for them to travel again to Nairobi during the hearing of the case against the interested party. The remaining 2 witnesses should have their travelling expenses reimbursed by the court on application of the prosecuting counsel and in the alternative arrangements can be made for their testimonies to be taken virtually. The application is therefore dismissed with no orders as to costs. Deputy Registrar to serve this order on the trial Magistrate in Makadara.
DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 2ND DAY OF FEBRUARY 2023. HON LADY JUSTICE A ONG’INJOJUDGEIn the presence of:-Ogwel- Court AssistantAppellant – Present in personMr Ngiri for State - PresentMr Paul holding brief for Mr Magolo Advocate for ApplicantMr Nyamu for the interested parties - PresentHon Lady Justice A Ong’injoJudge