BACKGROUND
1. Before this Court is the Notice of Motion application dated 14th January 2026 brought under certificate of urgency seeking, inter alia, orders that this Court calls for and examines the record in Shanzu Criminal Case No. 95 of 2016, Republic v Abdulrahman Kimani Kabilia, for purposes of satisfying itself as to the correctness, legality and propriety of the ruling delivered on 25th September 2025 and the subsequent proceedings founded thereon.
2. The applicant further seeks orders staying the proceedings before the trial court and such other orders as may be necessary to safeguard his right to a fair trial under Article 50 of the Constitution.
3. The application is supported by the affidavit of the applicant, sworn on 14th January 2026. The applicant depones that he was charged in Shanzu Criminal Case No. 95 of 2016 and that only part of the prosecution case had been heard before the original trial magistrate, Hon. Y.A. Shikanda, was transferred. The matter was subsequently taken over by Hon. A. Mwicigi who, on 25th September 2025, delivered a ruling finding that the accused persons had a case to answer and placing them on their defence.
4. The applicant contends that the ruling was not supported by the evidence on record and that material procedural irregularities occurred during the conduct of the proceedings.
5. The respondent opposed the application through Grounds of Opposition dated 13th February 2026. Learned Prosecution Counsel, Mr. Sirima, submitted that the applicant had failed to demonstrate any illegality, impropriety or irregularity warranting the exercise of this Court's revisionary jurisdiction. Counsel maintained that the trial court properly found that a prima facie case had been established.
ANALYSIS AND DETERMINATION
6. The High Court's revisionary jurisdiction is anchored in sections 362 and 364 of the Criminal Procedure Code. Section 362 empowers the Court to call for and examine the record of any criminal proceedings before a subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of the proceedings.
7. In Martin Mavuti Kituyi v Republic , HCCR Revision No. 27 of 2013, the Court observed:
"Revision primarily serves to put right instances where a finding, sentence, order or proceedings of a lower court are tainted by incorrectness, impropriety, illegality or irregularity."
8. It is equally settled that the revisionary jurisdiction of the High Court is supervisory in nature and is intended to ensure that subordinate courts act within the confines of the law and that proceedings are conducted regularly and fairly. The Court is not concerned with substituting its view for that of the trial court on matters properly within the trial court's discretion, but rather with correcting patent errors, illegalities, improprieties and procedural irregularities apparent on the face of the record.
9. The Court has carefully examined the original trial court record. The record shows that the matter initially proceeded before Hon. Y.A. Shikanda. Following the transfer of the learned magistrate, the succeeding magistrate complied with section 200 of the Criminal Procedure Code by informing the accused persons of their rights. The record of 12th October 2024 indicates that the accused persons elected to proceed from where the matter had reached.
10. The Court notes, however, that compliance with section 200 of the Criminal Procedure Code does not relieve the succeeding court of its obligation to ensure that the proceedings remain fair and regular. In Ndegwa v Republic [1985] KLR 535, the Court of Appeal cautioned that section 200 should be invoked sparingly and with considerable care because an accused person may be prejudiced where a succeeding judicial officer determines a matter without having seen and heard all the witnesses testify.
11. Upon perusal of the proceedings, this Court notes an apparent irregularity concerning the evidence of PW2. The record reflects that PW2 was stood down during examination-in-chief and did not complete his testimony. Consequently, the accused persons were not afforded an opportunity to cross-examine that witness as contemplated under section 208 of the Criminal Procedure Code and Article 50(2)(k) of the Constitution.
12. Despite that state of the record, a ruling on a case to answer was subsequently delivered on 25th September 2025. A careful examination of that ruling further reveals references to evidence and witness testimony which do not appear to fully correspond with the proceedings as recorded. Without attributing blame or impropriety to the learned succeeding magistrate, this Court is satisfied that there exists an apparent inconsistency between portions of the recorded proceedings and the factual narrative relied upon in the ruling.
13. The concern before this Court is therefore not the merits of the finding that a prima facie case had been established. Rather, the issue is whether the proceedings leading to that determination were regular and whether the accused persons were accorded a full opportunity to challenge the prosecution's evidence before being called upon to answer the charge.
14. In the Court's considered view, where a witness's evidence remains incomplete and has not been subjected to cross-examination, and a ruling on a case to answer is thereafter rendered, a procedural irregularity arises that goes to the heart of the right to a fair trial. Such an irregularity falls squarely within the supervisory and revisionary jurisdiction of this Court under sections 362 and 364 of the Criminal Procedure Code.
15. The Court is satisfied that the irregularity identified is apparent from the record itself and is of such a nature as to occasion prejudice to the accused persons if left unaddressed. This is therefore a proper case for the exercise of this Court's revisionary jurisdiction.
16. Consequently, this Court finds that the proceedings culminating in the ruling delivered on 25th September 2025 were affected by a procedural irregularity sufficient to warrant intervention by way of revision.
ORDERS
17. Pursuant to sections 362 and 364 of the Criminal Procedure Code, the ruling delivered on 25th September 2025 placing the accused persons on their defence is hereby set aside.
18. The proceedings in Shanzu Criminal Case No. 95 of 2016 shall resume from the stage at which PW2 was stood down before the transfer of Hon. Y.A. Shikanda.
19. For the avoidance of any perception of prejudice and in the interests of the fair administration of justice, the matter shall thereafter proceed before a magistrate of competent jurisdiction other than the judicial officer who delivered the impugned ruling.
20. The Deputy Registrar shall forthwith transmit a copy of this ruling to the Chief Magistrate's Court at Shanzu for compliance and further directions.
21. It is so ordered.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 4TH DAY OF JUNE 2026.
Ruling delivered in open court and through the Microsoft Teams Online Platform.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the Presence of:
Mr. Paul Magolo for the Applicant
Mr. Sirima for the State
Ms. Bebora – Court Assistant
1. Before this Court is the Notice of Motion application dated 14th January 2026 brought under certificate of urgency seeking, inter alia, orders that this Court calls for and examines the record in Shanzu Criminal Case No. 95 of 2016, Republic v Abdulrahman Kimani Kabilia, for purposes of satisfying itself as to the correctness, legality and propriety of the ruling delivered on 25th September 2025 and the subsequent proceedings founded thereon.
2. The applicant further seeks orders staying the proceedings before the trial court and such other orders as may be necessary to safeguard his right to a fair trial under Article 50 of the Constitution.
3. The application is supported by the affidavit of the applicant, sworn on 14th January 2026. The applicant depones that he was charged in Shanzu Criminal Case No. 95 of 2016 and that only part of the prosecution case had been heard before the original trial magistrate, Hon. Y.A. Shikanda, was transferred. The matter was subsequently taken over by Hon. A. Mwicigi who, on 25th September 2025, delivered a ruling finding that the accused persons had a case to answer and placing them on their defence.
4. The applicant contends that the ruling was not supported by the evidence on record and that material procedural irregularities occurred during the conduct of the proceedings.
5. The respondent opposed the application through Grounds of Opposition dated 13th February 2026. Learned Prosecution Counsel, Mr. Sirima, submitted that the applicant had failed to demonstrate any illegality, impropriety or irregularity warranting the exercise of this Court's revisionary jurisdiction. Counsel maintained that the trial court properly found that a prima facie case had been established.
ANALYSIS AND DETERMINATION
6. The High Court's revisionary jurisdiction is anchored in sections 362 and 364 of the Criminal Procedure Code. Section 362 empowers the Court to call for and examine the record of any criminal proceedings before a subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of the proceedings.
7. In Martin Mavuti Kituyi v Republic , HCCR Revision No. 27 of 2013, the Court observed:
"Revision primarily serves to put right instances where a finding, sentence, order or proceedings of a lower court are tainted by incorrectness, impropriety, illegality or irregularity."
8. It is equally settled that the revisionary jurisdiction of the High Court is supervisory in nature and is intended to ensure that subordinate courts act within the confines of the law and that proceedings are conducted regularly and fairly. The Court is not concerned with substituting its view for that of the trial court on matters properly within the trial court's discretion, but rather with correcting patent errors, illegalities, improprieties and procedural irregularities apparent on the face of the record.
9. The Court has carefully examined the original trial court record. The record shows that the matter initially proceeded before Hon. Y.A. Shikanda. Following the transfer of the learned magistrate, the succeeding magistrate complied with section 200 of the Criminal Procedure Code by informing the accused persons of their rights. The record of 12th October 2024 indicates that the accused persons elected to proceed from where the matter had reached.
10. The Court notes, however, that compliance with section 200 of the Criminal Procedure Code does not relieve the succeeding court of its obligation to ensure that the proceedings remain fair and regular. In Ndegwa v Republic [1985] KLR 535, the Court of Appeal cautioned that section 200 should be invoked sparingly and with considerable care because an accused person may be prejudiced where a succeeding judicial officer determines a matter without having seen and heard all the witnesses testify.
11. Upon perusal of the proceedings, this Court notes an apparent irregularity concerning the evidence of PW2. The record reflects that PW2 was stood down during examination-in-chief and did not complete his testimony. Consequently, the accused persons were not afforded an opportunity to cross-examine that witness as contemplated under section 208 of the Criminal Procedure Code and Article 50(2)(k) of the Constitution.
12. Despite that state of the record, a ruling on a case to answer was subsequently delivered on 25th September 2025. A careful examination of that ruling further reveals references to evidence and witness testimony which do not appear to fully correspond with the proceedings as recorded. Without attributing blame or impropriety to the learned succeeding magistrate, this Court is satisfied that there exists an apparent inconsistency between portions of the recorded proceedings and the factual narrative relied upon in the ruling.
13. The concern before this Court is therefore not the merits of the finding that a prima facie case had been established. Rather, the issue is whether the proceedings leading to that determination were regular and whether the accused persons were accorded a full opportunity to challenge the prosecution's evidence before being called upon to answer the charge.
14. In the Court's considered view, where a witness's evidence remains incomplete and has not been subjected to cross-examination, and a ruling on a case to answer is thereafter rendered, a procedural irregularity arises that goes to the heart of the right to a fair trial. Such an irregularity falls squarely within the supervisory and revisionary jurisdiction of this Court under sections 362 and 364 of the Criminal Procedure Code.
15. The Court is satisfied that the irregularity identified is apparent from the record itself and is of such a nature as to occasion prejudice to the accused persons if left unaddressed. This is therefore a proper case for the exercise of this Court's revisionary jurisdiction.
16. Consequently, this Court finds that the proceedings culminating in the ruling delivered on 25th September 2025 were affected by a procedural irregularity sufficient to warrant intervention by way of revision.
ORDERS
17. Pursuant to sections 362 and 364 of the Criminal Procedure Code, the ruling delivered on 25th September 2025 placing the accused persons on their defence is hereby set aside.
18. The proceedings in Shanzu Criminal Case No. 95 of 2016 shall resume from the stage at which PW2 was stood down before the transfer of Hon. Y.A. Shikanda.
19. For the avoidance of any perception of prejudice and in the interests of the fair administration of justice, the matter shall thereafter proceed before a magistrate of competent jurisdiction other than the judicial officer who delivered the impugned ruling.
20. The Deputy Registrar shall forthwith transmit a copy of this ruling to the Chief Magistrate's Court at Shanzu for compliance and further directions.
21. It is so ordered.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 4TH DAY OF JUNE 2026.
Ruling delivered in open court and through the Microsoft Teams Online Platform.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the Presence of:
Mr. Paul Magolo for the Applicant
Mr. Sirima for the State
Ms. Bebora – Court Assistant