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JudgmentArison Hamisi VS The Republic3 min read

Arison Hamisi VS The Republic

High Court at Voi High Court · · George. Dulu


  1. This is an application by way of Chamber Summons filed under Section 81 of the Criminal Procedure Code (Cap.75) in which the applicant seeks orders that this court allows, the transfer of Criminal Case No. E033 of 2021 (Wundanyi) currently pending before the Magistrate to be heard and determined by any other Magistrate this court may decide citing fair trail and interests of justice requirements in line with Section 78, 79 and 81, as well as Section 379 of the Criminal Procedure Code (Cap.75) and also retrial of the case.
  2. The application was filed with an affidavit sworn on 27th February 2023 by the applicant Harrison Hamisi presently in custody at Wundanyi Main Prison.  I note that in both the application and the Supporting Affidavit, no grounds or complaints upon which the application is based are pleaded.
  3. The application was canvassed through written submissions and in this regard, I have perused and considered the submissions filed by the applicant as well as the submissions filed by the Director of Public Prosecutions.
  4. I was also availed and perused and considered the typed proceedings in Wundanyi Sexual Offence Case No. E033 of 2021 and noted that, by 23rd February 2023 six (6) witnesses had testified.
  5. However, later on 2nd March 2023 when the prosecution requested for an adjournment of the case, the accused person, who is the applicant herein, stated as follows:-

“The prosecution is lying, the report I have as late as yesterday is that all the witnesses, PW1 and PW2 and the Chief are all in court.  I have no faith with the prosecutor and I will not proceed with her.”

  1. Having perused and considered the written submissions on both sides, I observe that the applicant emphasized that the trial Magistrate was treating him in a harsh manner and that he did not know the whereabouts of the co-accused who was released from custody in unclear circumstances by giving Kshs. 50,000/= to Madam Damaris at Bura Police Station.
  2. On their part, the Director of Public Prosecutions submitted in opposition to the application that the applicant had not satisfied the legal requirements to justify this court exercise its discretion to transfer the case to another Magistrate under Section 81 of the Criminal Procedure Code (jCap.75).
  3. In my view, the request to transfer the case herein from Wundanyi court is not merited and has to be dismissed.
  4. The first reason is that, though the applicant has cited Article 50 of the Constitution on the requirements of fair hearing, in my view transferring the case to another Magistrate will further delay the hearing, which will not be consonant with the principle of expeditious hearing and disposal of cases, which is one of the important elements of the principle of fair hearing.
  5. Secondly, the case before the trial court has already substantially progressed in its hearing, and transferring it to another Magistrate who will have to consider the applicant’s already indicated request of recall of witnesses, will further complicate the case as witnesses might not be available to testify again.  It should be emphasized here that fair hearing is meant to protect all parties involved in a trial, and not one person alone.  Thus in a criminal case, both the prosecution and the defence are equally entitled to a fair hearing.  Thus recalling witnesses has to be viewed in that light.
  6. The third, and more important reason why this application will fail is that at the trial, the applicant complained about the prosecutor.  However, in the present application and submissions herein, he has changed tune and is complaining about the trial Magistrate, and a police woman at Bura Police Station.  This means, in my view, that he is not honest or candid and merely wants to delay the conclusion of this part heard case, which has already delayed now for more than a year because of this application.
  7. I thus find no merits in the application for transfer of the case and dismiss the same.  I order return of the trial court file forthwith, and direct that the trial herein before the Magistrate’s court be expedited, heard and finalized.

Dated, signed and delivered this 10th day of June, 2024 in open court at Voi.

In the presence of:-

Alfred/Trizah – Court Assistants

Applicant

Mr. Sirima for State

    Arison Hamisi VS The Republic Arison Hamisi VS The Republic