' The Applicant was charged, before the Magistrate’s Court, with the offence of defilement contrary to Section 8 (1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. The Applicant pleaded not guilty to the offence and the hearing commenced before the said court but after the complainant’s testimony, the trial court magistrate proceeded on transfer and the matter was re-allocated to another court. It is on the basis of the magistrate’s transfer that the Applicant requested the new magistrate to start the hearing de novo on the basis that he was apprehensive that he would a fair trial on account of bias by the said court.
The trial court declined to start the hearing de novo thereby precipitating the filing of the instant application in which the Applicant seeks the following orders: -
SPENT
THAT may this Court be pleased to transfer CR (S0) No. E060 of 2023 at the Magistrate’s Court at Nyamira to another competent court of the same jurisdiction as this Court may direct, since the magistrate’s court is biased.
That may this Court be pleased to find that I the Applicant was compelled, coerced and forced to stand trial process having told the court to give me time to find a legal representative.
THAT leave be granted for the Application to be heard on a priority basis.
THAT any other relief that the court will grant.
The Application is supported by the Applicant’s affidavit wherein he avers that the matter ought to be transferred to another court for the sake of fairness and justice because the trial court had violated his constitutional rights by subjecting him to a trial process without his consent; that the spirit of decongesting the prison was not honoured by the court; that the court should be pleased to review his bond terms and hence allow the transfer of the matter from the said court.
Mr. Chirchir, Learned Prosecution Counsel, filed a Replying Affidavit in which he vehemently opposed the Application and sought its dismissal on the grounds that the matter before the trial court was still pending hearing and determination. He averred that the trial court proceedings did not demonstrate any of the conditions set out in Section 81 of the Criminal Procedure Code to warrant the transfer of the Criminal matter from the current judicial officer to another court.
It was averred that the Applicant intends to delay the proceedings in the criminal case by insisting that the matter commences de novo when a Ruling was already made on 3 rd February 2025 that it proceeds from where it had reached. It was also averred that the Applicant’s contention that the trial court declined to review his bond terms was not true because the trial court had on 26 th February 2024 reviewed the same from Kshs. 300,000/= to Kshs. 150,000/=. He urged the court to dismiss the Application.
Issue(s) for Determination
The main issue for my determination in this Application is whether the Applicant has made out a case for the granting of the orders sought in the Application.
Analysis and Determination
Article 165 of the Constitution vests the High Court with supervisory and inherent jurisdiction thus: -
Article 165
(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial, or quasi-judicial function, but not over a superior court.
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.
Section 81 of the Criminal Procedure Code grants the High Court powers to transfer matters between subordinate courts. It also outlines the scenarios in which the court may exercise this jurisdiction as follows: -
81. Power of High Court to change venue
Whenever it is made to appear to the High Court—
that a fair and impartial trial cannot be had in any criminal court subordinate thereto; or
that some question of law of unusual difficulty is likely to arise; or
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
that an order under this section will tend to the general convenience of the parties or witnesses; or
that such an order is expedient for the ends of justice or is required by any provision of this Code,
it may order—
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;
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;
that an accused person be committed for trial to itself.
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.
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.
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.
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.
Article 50(1) of the Constitution guarantees the right to a fair trial, which includes trial before an impartial court.
Courts have consistently held that transfer of cases is a discretionary and exceptional remedy, to be exercised sparingly and only upon demonstration of real likelihood of bias or injustice. In Kariuki vs. R [1984] KLR 809 it was held that: -
“Mere allegation of bias without cogent evidence is not sufficient to warrant transfer.”
In Republic vs. Chief Magistrate’s Court at Mombasa, ex parte Ganijee & Another [2002] 2 KLR 703 it was held that: -
“The test is not subjective apprehension, but reasonable apprehension demonstrated by facts.”
In Abdi Ali Dere vs. Republic [2013] eKLR the court held that: -
“The power to transfer a case should be exercised cautiously and only in circumstances where it is shown that there is a likelihood of miscarriage of justice.”
In the present case, the Applicant raised the issues of trial court’s bias, denial of right to counsel and refusal to review bond terms as the main reasons for seeking to transfer the case to another court.
Black''s Law Dictionary, 8 th Edition at page 171 defines bias as follows: -
“Inclination; prejudice, …., judicial bias. A Judge''s bias toward one or more of the parties to a case over which the Judge presides. Judicial bias is usually insufficient to justify disqualifying a Judge from presiding over a case. To justify disqualification or recusal, the Judge''s bias usually must be personal or based on some extra judicial reason.”
Holly Stout (11 KBW) Stout, H. (2011). Bias. Judicial Review, 16(4), 458–482 discussed the subject of “bias’, and posited as follows: -
“… The test to be applied by a judge who recognizes a possible apparent bias is thus a “double real possibility” test; the question he/she must ask him/herself is whether or not there is a real possibility that fair-minded and informed observer might think that there was a real possibility of bias.”
In the present case, I find that the Applicant did not identify any specific act or conduct by the current trial magistrate that demonstrates bias. It is my view that the mere fact that the magistrate ruled the case should proceed from where it had reached does not, by itself, constitute bias. Judicial officers routinely make rulings which may displease a party but that alone is not evidence of prejudice. I am guided by the decision in Patrick Ndegwa Warungu vs. Republic, High Court at Milimani Criminal Application No. 440 of 2003 where it was held: -
“The principles upon which transfer may be granted has been crystallized in several authorities the leading one being SHILENJE v THE REPUBLIC [1980] KLR 132 which lays down the law that for the High Court to order a transfer there must be reasonable apprehension in the applicant’s or any right thinking person’s mind that a fair and impartial trial might not be had before the magistrate whether one takes the incidences individually or collectively. Concomitantly there must be something before the court to make it appear that it is expedient for the ends of justice that an order for transfer ought to be made.
I derive much help from Sir H.T. Trinsep and Sir John Wrodroffes i.e. the former’s commentary and Notes (14 th Edition) (1906) and the latter’s Criminal Procedure in Briston India (1926). The principles which come out clearly are that the High Court will always require some strong grounds for transferring a case from one judicial officer to another. The court has to consider whether there has been any real bias in the mind of the presiding judge and/or magistrate and also whether incidences have happened which might create in the mind of the accused a reasonable apprehension that he may not have a fair and impartial trial. Whether such apprehension is reasonable must be determined with reference to the mind of the court rather than the mind of the accused. On the evidence before me, in light of the provision of section 87 of the Criminal Procedure Code, I take the view that the withdrawal of the applicant’s bond on allegations of the complainant does not constitute enough reason to transfer the case bearing in mind the fact that the magistrate after the result of the investigation reinstated the applicant’s bond.” (Emphasis added).
On the right to Counsel, the Applicant contended that he was forced into trial without counsel. The record however shows that he requested for time to secure legal representation, but there is no evidence he was denied such opportunity. I find that while Article 50(2)(g) of the Constitution grants a litigant the right to choose counsel, failure to do so within reasonable time cannot stall proceedings indefinitely.
On the allegation that the trial court declined to review of bond terms, I note that the State produced evidence to show that the trial court had in fact reviewed the terms on 26th February 2024 from Kshs. 300,000/= to Kshs. 150,000/=. I therefore find that the Applicant’s claim on the issue of bond is not factual.
Turning to the issue of transfer under Section 81 CPC, I find that the Applicant has not shown that an impartial trial cannot be carried out before the current court. He has not demonstrated prejudice to his case or that the conditions under Section 81 of the CPC are met.
On the allegation of delay and abuse of process, I note that the record shows that the trial court had already ruled that the matter proceeds from where it had reached on 3rd February 2025. This application therefore appears to be aimed at delaying the proceedings contrary to the constitutional principle of expeditious trial under Article 50(2)(e) of the Constitution.
Conclusion and Orders
I find that the Applicant has not demonstrated any reasonable apprehension of bias or violation of fair trial rights to justify the transfer sought. It is my view that the conditions under Section 81 CPC have not been met.
Consequently, I make the following final orders: -
The Notice of Motion dated 20th May 2025 is dismissed.
The matter shall proceed before the trial magistrate as directed.
It is so ordered.
'
The trial court declined to start the hearing de novo thereby precipitating the filing of the instant application in which the Applicant seeks the following orders: -
SPENT
THAT may this Court be pleased to transfer CR (S0) No. E060 of 2023 at the Magistrate’s Court at Nyamira to another competent court of the same jurisdiction as this Court may direct, since the magistrate’s court is biased.
That may this Court be pleased to find that I the Applicant was compelled, coerced and forced to stand trial process having told the court to give me time to find a legal representative.
THAT leave be granted for the Application to be heard on a priority basis.
THAT any other relief that the court will grant.
The Application is supported by the Applicant’s affidavit wherein he avers that the matter ought to be transferred to another court for the sake of fairness and justice because the trial court had violated his constitutional rights by subjecting him to a trial process without his consent; that the spirit of decongesting the prison was not honoured by the court; that the court should be pleased to review his bond terms and hence allow the transfer of the matter from the said court.
Mr. Chirchir, Learned Prosecution Counsel, filed a Replying Affidavit in which he vehemently opposed the Application and sought its dismissal on the grounds that the matter before the trial court was still pending hearing and determination. He averred that the trial court proceedings did not demonstrate any of the conditions set out in Section 81 of the Criminal Procedure Code to warrant the transfer of the Criminal matter from the current judicial officer to another court.
It was averred that the Applicant intends to delay the proceedings in the criminal case by insisting that the matter commences de novo when a Ruling was already made on 3 rd February 2025 that it proceeds from where it had reached. It was also averred that the Applicant’s contention that the trial court declined to review his bond terms was not true because the trial court had on 26 th February 2024 reviewed the same from Kshs. 300,000/= to Kshs. 150,000/=. He urged the court to dismiss the Application.
Issue(s) for Determination
The main issue for my determination in this Application is whether the Applicant has made out a case for the granting of the orders sought in the Application.
Analysis and Determination
Article 165 of the Constitution vests the High Court with supervisory and inherent jurisdiction thus: -
Article 165
(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial, or quasi-judicial function, but not over a superior court.
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.
Section 81 of the Criminal Procedure Code grants the High Court powers to transfer matters between subordinate courts. It also outlines the scenarios in which the court may exercise this jurisdiction as follows: -
81. Power of High Court to change venue
Whenever it is made to appear to the High Court—
that a fair and impartial trial cannot be had in any criminal court subordinate thereto; or
that some question of law of unusual difficulty is likely to arise; or
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
that an order under this section will tend to the general convenience of the parties or witnesses; or
that such an order is expedient for the ends of justice or is required by any provision of this Code,
it may order—
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;
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;
that an accused person be committed for trial to itself.
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.
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.
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.
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.
Article 50(1) of the Constitution guarantees the right to a fair trial, which includes trial before an impartial court.
Courts have consistently held that transfer of cases is a discretionary and exceptional remedy, to be exercised sparingly and only upon demonstration of real likelihood of bias or injustice. In Kariuki vs. R [1984] KLR 809 it was held that: -
“Mere allegation of bias without cogent evidence is not sufficient to warrant transfer.”
In Republic vs. Chief Magistrate’s Court at Mombasa, ex parte Ganijee & Another [2002] 2 KLR 703 it was held that: -
“The test is not subjective apprehension, but reasonable apprehension demonstrated by facts.”
In Abdi Ali Dere vs. Republic [2013] eKLR the court held that: -
“The power to transfer a case should be exercised cautiously and only in circumstances where it is shown that there is a likelihood of miscarriage of justice.”
In the present case, the Applicant raised the issues of trial court’s bias, denial of right to counsel and refusal to review bond terms as the main reasons for seeking to transfer the case to another court.
Black''s Law Dictionary, 8 th Edition at page 171 defines bias as follows: -
“Inclination; prejudice, …., judicial bias. A Judge''s bias toward one or more of the parties to a case over which the Judge presides. Judicial bias is usually insufficient to justify disqualifying a Judge from presiding over a case. To justify disqualification or recusal, the Judge''s bias usually must be personal or based on some extra judicial reason.”
Holly Stout (11 KBW) Stout, H. (2011). Bias. Judicial Review, 16(4), 458–482 discussed the subject of “bias’, and posited as follows: -
“… The test to be applied by a judge who recognizes a possible apparent bias is thus a “double real possibility” test; the question he/she must ask him/herself is whether or not there is a real possibility that fair-minded and informed observer might think that there was a real possibility of bias.”
In the present case, I find that the Applicant did not identify any specific act or conduct by the current trial magistrate that demonstrates bias. It is my view that the mere fact that the magistrate ruled the case should proceed from where it had reached does not, by itself, constitute bias. Judicial officers routinely make rulings which may displease a party but that alone is not evidence of prejudice. I am guided by the decision in Patrick Ndegwa Warungu vs. Republic, High Court at Milimani Criminal Application No. 440 of 2003 where it was held: -
“The principles upon which transfer may be granted has been crystallized in several authorities the leading one being SHILENJE v THE REPUBLIC [1980] KLR 132 which lays down the law that for the High Court to order a transfer there must be reasonable apprehension in the applicant’s or any right thinking person’s mind that a fair and impartial trial might not be had before the magistrate whether one takes the incidences individually or collectively. Concomitantly there must be something before the court to make it appear that it is expedient for the ends of justice that an order for transfer ought to be made.
I derive much help from Sir H.T. Trinsep and Sir John Wrodroffes i.e. the former’s commentary and Notes (14 th Edition) (1906) and the latter’s Criminal Procedure in Briston India (1926). The principles which come out clearly are that the High Court will always require some strong grounds for transferring a case from one judicial officer to another. The court has to consider whether there has been any real bias in the mind of the presiding judge and/or magistrate and also whether incidences have happened which might create in the mind of the accused a reasonable apprehension that he may not have a fair and impartial trial. Whether such apprehension is reasonable must be determined with reference to the mind of the court rather than the mind of the accused. On the evidence before me, in light of the provision of section 87 of the Criminal Procedure Code, I take the view that the withdrawal of the applicant’s bond on allegations of the complainant does not constitute enough reason to transfer the case bearing in mind the fact that the magistrate after the result of the investigation reinstated the applicant’s bond.” (Emphasis added).
On the right to Counsel, the Applicant contended that he was forced into trial without counsel. The record however shows that he requested for time to secure legal representation, but there is no evidence he was denied such opportunity. I find that while Article 50(2)(g) of the Constitution grants a litigant the right to choose counsel, failure to do so within reasonable time cannot stall proceedings indefinitely.
On the allegation that the trial court declined to review of bond terms, I note that the State produced evidence to show that the trial court had in fact reviewed the terms on 26th February 2024 from Kshs. 300,000/= to Kshs. 150,000/=. I therefore find that the Applicant’s claim on the issue of bond is not factual.
Turning to the issue of transfer under Section 81 CPC, I find that the Applicant has not shown that an impartial trial cannot be carried out before the current court. He has not demonstrated prejudice to his case or that the conditions under Section 81 of the CPC are met.
On the allegation of delay and abuse of process, I note that the record shows that the trial court had already ruled that the matter proceeds from where it had reached on 3rd February 2025. This application therefore appears to be aimed at delaying the proceedings contrary to the constitutional principle of expeditious trial under Article 50(2)(e) of the Constitution.
Conclusion and Orders
I find that the Applicant has not demonstrated any reasonable apprehension of bias or violation of fair trial rights to justify the transfer sought. It is my view that the conditions under Section 81 CPC have not been met.
Consequently, I make the following final orders: -
The Notice of Motion dated 20th May 2025 is dismissed.
The matter shall proceed before the trial magistrate as directed.
It is so ordered.
'