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1. The notice of motion dated 4/7/2025 was brought under Sections 362, 364, 365, 367 of the Criminal Procedure Code, Articles 25(c), 50, 159 and 165(6) of the Constitution of Kenya, 2010 and all other enabling provisions of the law.
2. The applicant was seeking the following orders :
i. THAT the Honourable Court be pleased to review and /or set aside the ruling of Honourable G. Olimo issued on the 4th day of June, 2025 and make appropriate directions allowing the recall of the said witnesses for further cross examination.
ii. THAT this Honourable Court be pleased to issue orders staying further proceedings in Chief Magistrate’s Court at Mombasa Sexual Offences Case No. E079 of 2024 - Republic versus David Nyambu before Honourable G. Olimo pending hearing and determination of this Application.
3. I called for and examined the subject of Mombasa SO E079/2024. To begin with the Application has an error as there is no order that was given on 4/6/2025 denying any adjournment. On that date the Advocate was present and several witnesses including the doctor testified and they were cross examined by the doctor.
4. The court nevertheless went through the entire record and notes that the orders complained about issued on 5/3/2025. That is the day Mr. Muteti appeared and stated that he had been appointed a few minutes ago and he need to go through the documents. He sought an adjournment.
5. The prosecution objected to the said application for any adjournment pointing at that on 14/08/2024, 9/09/2024 the hearing dates had not been fixed on account of the absence of the advocate. The accused person had been given two other chances .On 18/09/2024 ,eventually, the hearing dates were fixed in the presence of Mr. Malombo Appey. The said Advocate however did not appear at the subsequent hearing.
6. The trial court took all these into account having noted that the Applicant had be given all 5 chances to get an advocate and the minor who was a school going child had missed school on the said date.
7. Having looked at the record, I have noted that the accused person was out on bond all this time and the prosecution had even raised concerns about witlessness’s interference as the accused person was seen with the minor.
8. The applicant submitted that this is not a children’s matter. The Complainant is shown to be 13 years. Surely, If a 13 years old is not a child who is?
9. The court agree with the applicant that they have a right to legal representation but such rights should not be abused or exploited to delay or derail justice. All interests including those of the survivor must be considered. The child was vulnerable and being recalled may traumatize her.
10. I note that The court had gone ahead and explained to the accused person the” no adjournment policy” and even supplied him a printed copy of the same before the dates were fixed. He was given ample opportunity to put his house in order and prepare for the hearing well in advance,
11. I find that there is no breach, illegality. Irregularity or impropriety on record warranting a review. The trial court should be commended.
12. Accordingly, the Application is dismissed.
13. The trial record to be returned to the lower court and the hearing to go on.
14. It is so ordered
Dated, signed and delivered in Open Court/online through MS TEAMS,
this 22nd day of October 2025
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: -
MS HABIBA FOR THE APPLICANT
MR NGIRI FOR THE STATE
BEBORA COURT ASSISTANT
HON. LADY JUSTICE W. K. MICHENI
JUDGE
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1. The notice of motion dated 4/7/2025 was brought under Sections 362, 364, 365, 367 of the Criminal Procedure Code, Articles 25(c), 50, 159 and 165(6) of the Constitution of Kenya, 2010 and all other enabling provisions of the law.
2. The applicant was seeking the following orders :
i. THAT the Honourable Court be pleased to review and /or set aside the ruling of Honourable G. Olimo issued on the 4th day of June, 2025 and make appropriate directions allowing the recall of the said witnesses for further cross examination.
ii. THAT this Honourable Court be pleased to issue orders staying further proceedings in Chief Magistrate’s Court at Mombasa Sexual Offences Case No. E079 of 2024 - Republic versus David Nyambu before Honourable G. Olimo pending hearing and determination of this Application.
3. I called for and examined the subject of Mombasa SO E079/2024. To begin with the Application has an error as there is no order that was given on 4/6/2025 denying any adjournment. On that date the Advocate was present and several witnesses including the doctor testified and they were cross examined by the doctor.
4. The court nevertheless went through the entire record and notes that the orders complained about issued on 5/3/2025. That is the day Mr. Muteti appeared and stated that he had been appointed a few minutes ago and he need to go through the documents. He sought an adjournment.
5. The prosecution objected to the said application for any adjournment pointing at that on 14/08/2024, 9/09/2024 the hearing dates had not been fixed on account of the absence of the advocate. The accused person had been given two other chances .On 18/09/2024 ,eventually, the hearing dates were fixed in the presence of Mr. Malombo Appey. The said Advocate however did not appear at the subsequent hearing.
6. The trial court took all these into account having noted that the Applicant had be given all 5 chances to get an advocate and the minor who was a school going child had missed school on the said date.
7. Having looked at the record, I have noted that the accused person was out on bond all this time and the prosecution had even raised concerns about witlessness’s interference as the accused person was seen with the minor.
8. The applicant submitted that this is not a children’s matter. The Complainant is shown to be 13 years. Surely, If a 13 years old is not a child who is?
9. The court agree with the applicant that they have a right to legal representation but such rights should not be abused or exploited to delay or derail justice. All interests including those of the survivor must be considered. The child was vulnerable and being recalled may traumatize her.
10. I note that The court had gone ahead and explained to the accused person the” no adjournment policy” and even supplied him a printed copy of the same before the dates were fixed. He was given ample opportunity to put his house in order and prepare for the hearing well in advance,
11. I find that there is no breach, illegality. Irregularity or impropriety on record warranting a review. The trial court should be commended.
12. Accordingly, the Application is dismissed.
13. The trial record to be returned to the lower court and the hearing to go on.
14. It is so ordered
Dated, signed and delivered in Open Court/online through MS TEAMS,
this 22nd day of October 2025
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: -
MS HABIBA FOR THE APPLICANT
MR NGIRI FOR THE STATE
BEBORA COURT ASSISTANT
HON. LADY JUSTICE W. K. MICHENI
JUDGE
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