INTRODUCTION
1. The applicant in this is the 1 st accused in Milimani Chief Magistrate’s Court Criminal Case Number E1137 of 2023.
2. The applicant made an application for recusal dated 21 st October 2025 before the Learned Honorable Magistrate who in a Ruling delivered on 23 rd October 2025 declined to recuse herself from the matter prompting the instant Revision.
3. The Notice of Motion seeks the following ORDERS;-
a). This Criminal Revision application be certified as urgent, and directions on its urgent disposal be issued (spent).
b). Pending the hearing and determination of the instant Motion, there be a stay of the proceedings, and any further proceedings in Nairobi MCCR/E1137/2023 (Republic vs. Davis Chelogoi & Andrew Kirungu), until further Order of this Honourable Court
c). This Honourable Court in exercise of its revisionary powers pursuant to Sections 362 and 364 of the Criminal Procedure Code be pleased to call up for review of the Ruling and Orders dated 23rd October 2025 by the Hon. Dolphinia Alego dismissing the Applicant's/1st Accused Person's Recusal Motion dated 21st October, 2025 in Nairobi MCCR/E1137/2023 (R vs. Davis Chelogoi & Andrew Kirungu), with a view to satisfying itself as to the correctness, legality, and/or propriety of the said Ruling and Orders in the stated Case.
d). Upon the grant of prayer 2 herein, this Honourable Court be pleased to review, vacate and set aside in toto the order dated 23rd October 2025 by the Hon. Dolphina Alego dismissing the Applicant's/1st Accused Person's Recusal Motion dated 21st October, 2025 in Nairobi MCCR/E1137/2023 (R vs. Davis Chelogoi & Andrew Kirungu), and consequent thereupon to order that the trial in the said Criminal proceedings proceed forthwith to their logical conclusion before any other Court of competent jurisdiction in Nairobi Chief Magistrates Court, with the exclusion of the Hon. Dolphina Alego CM.
e). This Honourable Court be pleased to issue any such further order(s) as it
expedient to meet the ends of justice.
f). The costs of the application herein be provided for.
APPLICANTS CASE
4. The application is based on the grounds and submissions by the applicant as hereunder;-
A . Jurisdictional bases of the High Court's intervention herein sought in Review
i) Article 50(1) of the Kenyan Constitution declares the Applicant's Constitutional right to have his Criminal case Nairobi MCCR/E1137/2023 (R vs. DAVIS CHELOGOI & ANDREW KIRUNGU), as an Accused person in the cited Nairobi Chief Magistrates Criminal Court Case resolved by the application of law, and decided in a fair, impartial and public hearing before the Court or, if appropriate, another independent and impartial tribunal or body.
ii). The Applicant as the 1ST Accused in the Criminal proceedings complains that the Hon. Chief Magistrate adjudicating on the Applicant's Criminal trial has been biased and openly partial in not recording the proceedings of his defence trial, thereby gravely prejudicing him.
iii). Further, Article 50(1) of the Constitution of Kenya, is cross-cutting, and applies equally to Accused Persons such as the Applicant herein.
iv). Article 165(6) and (7) of the Constitution of Kenya both confer upon this Honourable Court supervisory jurisdiction over subordinate Courts such as the Chief Magistrates' Court at Nairobi in the instant Case and over any person, body or authority exercising a judicial or quasi-judicial function, (but not over a superior court).
V). Additionally, the object of, and pursuant to Article 165(6), the High Court may call for the record of any proceedings before any court or person, body of authority referred to in the said Article 165(6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice, as herein sought by the Applicant.
vi). In turn, Section 362 of the Criminal Procedure Code provides that the High Court may call for and examine the record of any criminal proceedings before any 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 any proceedings of any such subordinate court.
vii). Additionally, Section 364 of the Criminal Procedure Code empowers the High Court on revision as sought herein, in the case of the subject proceedings in the Nairobi subordinate court, the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may, in the case of any other order other than an order of acquittal, alter or reverse the order.
viii). In the result, the duty of this Honourable Court is to satisfy itself as 'to the correctness, legality, or propriety of any finding, sentence or order recorded or passed' as was made by the Hon. Dolphina Alego on 23rd October, 2025 summarily dismissing the Applicant's/1st Accused Person's Recusal Motion dated 21st October, 2025 in NAIROBI
MCCR/E1137/2023 (R vs. DAVIS CHELOGOI & ANDREW KIRUNGU), without any directions thereon, room for service of the same on the Prosecution and the 1st Accused Person and rendered a Ruling without hearing the Applicant/1st Accused Person at all.
ix). Section 367 of the Criminal Procedure Code in turn provides that when a case is revised by the High Court it shall certify its decision or order to the Court by which the sentence or order so revised was recorded or passed, and the Court to which the decision or order is so certified shall thereupon make such orders as are conformable to the decision so certified, and, if necessary, the record shall be amended in accordance therewith.
x). Section 81(1)(a) and (e) of the Criminal Procedure Code provides that 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; in consequence this Court is empowered to transfer the matter to another court of competent jurisdiction to hear and determine the matter. Xi). Section 81(3) of the Criminal Procedure Code demands the making of this Motion.
The foregoing constitutes the jurisdictional bases which the Applicant herein invokes in his instant Revision application.
B. Merits of the Applicant's Review Application, entitling the High Court to
Review the impugned Order made by the Hon. Dolphina Alego CM
xii). The Applicant's complaints informing the recusal of the Hon. Dolphina Alego from the further adjudication of NAIROBI MCCR/E1137/2023 (R vs. DAVIS CHELOGOI & ANDREW KIRUNGU) in which the Applicant is the 1st Accused Person informally expressed by the Applicant to the said Learned Magistrate conducting the trial on 16th October, 2025 whereupon he was directed to lodge a formal application.
xiii). Indeed, and in deference to the said Order, the Applicant formally lodged a Recusal Motion dated 21st October, 2025, and in expectation of a fair hearing, waited for Directions thereon from the Hon. Dolphina Alego on the manner of disposal of his said Motion on 23rd October, 2025 which was the return Mention date for the stated
NAIROBI MCCR/E1137/2023 (R vs. DAVIS CHELOGOI & ANDREW KIRUNGU).
xiv). Before the Applicant (being the 1st Accused) could even serve the stated recusal Motion dated 21st October, 2025 on the Director of Public Prosecutions, or even the 1st Accused (the named Interested Party herein) the Hon. Dolphina Alego shockingly proceeded on 23rd October 2025 to render the impugned Ruling, in which she summarily dismissed the Applicant's said recusal Motion without reading it, referencing it in her entire span of the Ruling; and worse, without affording the Applicant any hearing, or any form of hearing of whatever sort on his said recusal Motion, to the detriment and injury of the Applicant.
Xv). None of the Grounds (a) to (m) spelt out in the Applicant's recusal Motion before the Hon. Dolphina Alego were addressed, ruled upon, or canvassed in the summary dismissal of the Applicant's said Motion. These Grounds were elaborately pleaded in the
said Motion as:-
a) Failure to Properly Record Proceedings : The Learned Magistrate has, on multiple occasions, been interjected by counsel for the Accused Persons due to
her failure to properly and accurately record court proceedings.
The applicant submitted that a complete and accurate record of proceedings is fundamental to the administration of a fair trial, and the absence thereof significantly compromises the rights of the Accused under Article 50 of the Constitution.
b) According to the applicant, during the testimony and cross-examination of key witnesses particularly those whose evidence was exculpatory to the Accused - the Learned Magistrate exhibited a lack of diligence in recording proceedings. The applicant argued that such selective inattention compromises the integrity of the court record and suggest an unwillingness to capture evidence favourable to the Defence, violating the principle of impartiality enshrined in Rule 4(1)(a) of the Judicial Code of Conduct.
c) the applicant submitted that, the Investigating Officer irregularly produced documents purportedly authored by one Mr. Augustine Mbiria, who was deceased at the time. Despite defence objections that the prosecution had not produced any
death certificate or proof of authorship, the Learned Magistrate failed to record
the objection or issue a ruling. The documents were nevertheless admitted as
Exhibit 57, in contravention of Sections 64, 67, and 68 of the Evidence Act, and
in disregard of the duty to ensure evidentiary integrity. The omission
demonstrates procedural bias and a breach of the obligation to uphold
fairness and integrity.
d) the applicant went further to submit that throughout the proceedings the Learned Magistrate has consistently refused or neglected to record objections raised by the Defence and has often proceeded without delivering reasoned rulings. This recurrent omission portrays a deliberate effort to suppress the Defence's procedural record and violates Article
50(2)(c) on the equality of arms and Rule 3(4) of the Judicial Code, which
mandates Judicial officers to maintain complete and accurate court records.
e) Neglect During Critical Testimony : the applicant further submitted that despite repeated concerns raised by the Defence, the Learned Magistrate has demonstrated an apparent lack of interest in recording proceedings, particularly during the cross-examination and
examination of witnesses whose testimonies contain critical exculpatory
evidence. This failure is especially pronounced when Defence witnesses
testify. Such behavior, even if unintentional, gives rise to a reasonable
apprehension of bias, contravening Value 1 (independence) and Value 2
(impartiality) of the Bangalore Principles of Judicial Conduct and Rule 6(1)
of the Judicial Code.
f) Apparent Bias in Demeanour : This matter involves competing claims of
ownership over the same parcel of land-LR No. 18485 IR 232908 (held by the
1st Accused) and LR No. 18485 IR 64011 (held by the Complainant). In such
circumstances, the impartiality of the trial court is paramount. However,
the Defence has observed that the Learned Magistrate displays evident
attentiveness and diligence when the Complainant and his witnesses testify, yet
shows visible disinterest and casualness during the testimony of the Defence and their witnesses.
g) The selective recording of evidence and unequal treatment of witnesses
indicates that the Learned Magistrate may have formed a preconceived view on
the merits of the case. This perception of prejudgement offends Article 50(1) of
the Constitution, which guarantees an independent and impartial tribunal, and
violates the duty of open-minded adjudication under Rule 8(1) of the Judicial
Code.
h) Prejudgment of the Matter : The applicant went on to argue that this differential treatment suggests the court may have adopted a preconceived position on the matter. The selective recording of evidence compromises the integrity and completeness of the court record and appears calculated to produce a predetermined outcome favouring the Complainant.
i) Improper Intervention by the Court : according to the applicant, during trial, the Prosecution supplied voluminous document bundles to the Defence. However, certain documents containing exculpatory content were not produced by the Prosecution. When the Defence sought to produce these same documents-originally disclosed by the Prosecution-the Learned Magistrate, suo motu, raised an objection to their production, even though no such objection was raised by the Prosecution. This conduct gives the impression that the Learned Magistrate has improperly assumed the dual role of prosecutor and adjudicator, in a manner that undermines judicial neutrality.
j) Information Suggesting Prejudgment and External Pressure : the applicant further submitted that prior to the defence hearing, the 1st Accused was informed by a reliable private source that the Learned Magistrate had allegedly predetermined to convict the Accused persons, purportedly as a result of external pressure from third parties with vested interests in the matter. If true, this raises grave concerns as to whether the proceedings are being conducted with the judicial
independence required under the Constitution.
k) Conduct Surrounding Adjournment Request: The applicant went on to state that his concerns were further reinforced on 9th October 2025, when the defence sought an adjournment due to a personal emergency affecting Counsel for the 1st Accused being taken ill.
Notice of the emergency had been formally communicated to the Prosecution
and Counsel for the 2nd Accused via a letter dated 6th October 2025, duly filed
on the Court's digital platform. The letter further clarified that the next
scheduled hearing on 16th October 2025 could proceed as planned.
1) Prejudicial Direction by the Court : Despite this being the Defence's first
adjournment request, the Learned Magistrate unexpectedly directed that the 1st
Accused be stood down from cross-examination and that the 2nd Accused
proceed with examination-in-chief. The 2nd Accused raised a formal
objection, rightly pointing out that the altered sequence would prejudice
the Defence case and distort the record.
m) Raising of Extraneous Matters : further the applicant contended that although the Learned Magistrate reluctantly granted the adjournment, she proceeded to raise extraneous issues not introduced by any party. Her remarks and overall conduct during the session
reinforced the Defence's perception of a personal interest in the matter, further
undermining the requirement of impartiality.
n) the applicant further stated that on the material dates the Learned Magistrate expressly stated on record that she was "under pressure other quarters" in relation to the conduct of this matter. This extraordinary statement, made in open court, confirms that the Learned Magistrate is taking into account communications or instructions from undisclosed third parties who are not participation in these proceedings.
o) according to the applicant, upon perusal of the Court file, it is evident that no such correspondence or letter has been authored by counsel for the 1st Accused, counsel for the 2nd Accused, or by the Prosecution. The identity of the "other quarters" referred to by the Learned Magistrate remains unknown to the Accused.
p) Such a disclosure from the bench raises grave concern that the court's independence and impartiality have been compromised. If indeed the Learned Magistrate is under external pressure or influence, then she cannot fairly or freely determine this matter. This conduct contravenes Article 160(1) of the Constitution which guarantees judicial independence, as well as Rule 3(5) and Rule 4(1)(a) of the Judicial Code of conduct and Ethics (2016), which
prohibit judicial officers from allowing any person, authority, or institution to direct or control the exercise of judicial functions.
q) The applicant asserted that the statement from the Learned Magistrate further validates the 1st Accused's apprehension that the court has aligned itself with external interest hostile to the defence, thereby establishing a well reasoned ground for bias and justifying recusal in the interests of justice and public confidence in the judiciary.
r) Knowledge of Ongoing ELC Proceedings : The trial court is fully aware of the ongoing proceedings before the Environment and Land Court in ELC Case No.
E070 of 2023 - Davis Nathan Chelugoi v. Ashok Rupshi Shah & 4 Others, as
well as Civil Appeal No. E700 of 2024 - Ashok Rupshi Shah & Another v. Davis Nathan Chelugoi & 3 Others, where the central issue for determination is the ownership of the disputed property. The court is also aware of subsisting orders issued in those matters.
s) Disregard for Article 162 Jurisdictional Limits : the applicant submitted that in clear contravention of Article 162(2)(b) of the Constitution-which confers exclusive jurisdiction upon the Environment and Land Court to determine disputes relating to land-the
Learned Magistrate, in concert with the Prosecution, has proceeded to
adjudicate on the issue of ownership within these criminal proceedings.
t) Selective Reliance on Prior Judgments: it was further urged for the applicant that despite being aware that the ownership dispute is actively pending before the Environment and Land Court, the trial court has selectively relied on a judgment issued in ELC Case No. 312 of 2009, which favours the Complainant. Notably, the 1st Accused was not a party to that
case, and the judgment does not address or affect his title. The court has
simultaneously ignored more recent and directly relevant orders,
including those issued on 22nd April 2024 in ELC Case No. E070 of 2023,
which permit the 1st Accused to remain in lawful possession of the suit
property.
u) The applicant further contends that the Learned Magistrate has repeatedly prevented the Defence from cross examining witnesses, especially regarding documents supplied by the
Prosecution but allegedly are "before other courts". This position is legally incorrect and has curtailed the Defence's constitutional right to challenge the evidence presented against them under Article 50(2)(k), amounting to procedural unfairness and judicial overreach.
v) Usurping the Jurisdiction of the ELC : By effectively turning these criminal
proceedings into a parallel forum to adjudicate the question of ownership of LR
No. 18485 IR 64011 and LR No. 18485 IR 232908, the Learned Magistrate has
overstepped her jurisdiction. This is despite full knowledge that this issue is
squarely within the exclusive domain of the Environment and Land Court,
pursuant to Article 162(2)(b) of the Constitution.
vi). In the light of the foregoing, the applicant asserts that very weighty basis for recusal was not considered at all by the Learned Magistrate thus the Applicant has reasonable apprehension (and even any right thinking person would arrive at the same conclusion), that a fair and impartial trial will certainly not be had before the said Hon. Magistrate in her failure to record the evidence during the Defence hearing, and indeed her open bias by summarily dismissing the Applicant's recusal Motion without any hearing thereon, such as to make it appear that it is expedient for the ends of justice that an order for transfer ought to be made from her to a different Court of equal jurisdiction.
vii). The applicant further contends that the Prosecution as well as the 2 nd Accused did not file a single document in opposition of support of the Applicant's recusal Motion and indeed the Learned Magistrate in her impugned Ruling did not reference the Prosecution's take and/or position on the said recusal Motion.
viii). According to the applicant the very contents of the Learned Hon. Magistrate's impugned Ruling and Order dismissing the Applicant's Recusal Motion certainly confirms the court's unmitigated bias, and allusion to and reference to extraneous matters not pleaded at all by the Applicant or even averred in the least in his Supporting Deposition.
a) She stated in page 1, line 10 to 12 in the impugned Ruling thus:-
"A lot has been mentioned about my writings, my body language, the strolling of my person, the perversion of public knowledge of the particular case both in the newspapers and lately in parliament, the citations of the other legal cases in superior courts averred by counsel and his client."
The Applicant contends that in the entire span of his Supporting Affidavit sworn on 21st
October, 2025 never made any such allegations howsoever against the Learned Magistrate as attributed to the Applicant in the stated remarks, demonstrating her lack of impartiality and expressive of her bias attitude.
ix). According to the applicant in this instance, the drawing of extraneous sources of self-attack by the Learned Magistrate "in newspapers" without any single piece of evidence in support and turning to accuse the Applicant of such spurious allegations to deny him the recusal Motion was (with respect) capricious and expressive of bias against the Applicant. The applicant also denied the accusations of attempt to intimidate the trial court.
x). The Applicant submitted that his counsel did not in any respect bullying the Court by his subject recusal Motion and it is clear that the Learned Magistrate approached the Applicant's
Motion with a closed and predetermined mind.
xi. the applicant contends that from the stated remarks of the learned Honorable magistrate in her ruling, she cannot in the circumstances objectively, fairly and impartially determine the the trial.
5. The applicant went on to reproduce the following excerpt from the ruling as a demonstration of the magistrates apparent bias;-
"It is now in common knowledge [sic] that the tactics being used herein are what A1 us using to intimidate the court within and without. The Judiciary is totally independent arm of government [sic] as stipulated in the constitution."
[emphasis added]
6. The applicant denies ever engaging in the alleged "tactics" which the Learned Magistrate alleged was "common knowledge", and without any evidence of such attribution from any quarter, (not even the Prosecution), which is demonstrative of the Learned Magistrate's bias and lack of impartiality.
7. The applicant argued that by importing extraneous considerations into the matter before her, as penned in her impugned Ruling, the apprehensions of impartiality of the Learned Magistrate expressed by the Applicant have been amply demonstrated.
8. The applicant further stressed that the Learned Magistrate proceeded to drag in the Applicant's Counsel into her Ruling allegedly as part of the Applicant's recusal move against her, and accused the learned Counsel thus, without any evidence from the Prosecution, Accused 2 or any other person the learned honorable magistrate wrote:-
"In a nut shell the application is properly executed to intimidate. The Court will be
careful not to be annoyed with counsel or his client but express mentorship that
counsel should be above board and stable before penning and such allegations which literally are his self-lamentations.
We have read and seen our names being dragged in to the public gallery but
we choose the oath of office, the constitution, rule of law and above all God."
9. The Applicant's Learned Counsel argued that he was wrongly crucified as the author of a recusal application solely to intimidate the trial Magistrate which demonstrates that the no matter the merits of the Applicant's motion for recusal, the Learned Magistrate had closed her mind to the merits thereof and reduced it to an intimidatory move against her, which it never was.
10. The applicant took issue with the manner and style in which the learned honarable magistrate quoted authorities in her ruling as yet another ground for this court to revise her ruling. The applicants counsel posited that the portions of the decisions cited by the magistrate amounted to plagiarism for there was no proper referencing according to him.
11. The applicant summed up the submissions by stating that by referencing extraneous matters that had neither been pleaded by the Applicant nor stated by the Prosecution (or any other party before her) on matters unrelated to the trial before her while castigating the Applicant for lodging his recusal Motion, the Learned Magistrate sent an unequivocal signal that she was bitter with the Applicant in moving the Court to recuse itself, and hence she cannot and could not be objective at all in the trial.
12. In the foregoing circumstances, the applicant posits that the inevitable perception that the ends of justice will not be met by the Hon. Dolphina Alego continuing with the proceedings is incontestable and that the trial will not meet the test of a fair trial as envisaged under Article 50 of the Constitution.
13. The Applicant maintained that he moved the Subordinate Court in the manner prescribed by this Court in case of Joseph Odhiambo Omondi v Republic [2017] eKLR, (Mrima J) demonstrating to her the Applicant's real as opposed to fictional apprehension that the entire trial was unlikely to proceed in an impartial manner before her.
14. . In depriving the Applicant any form of audience before making her impugned findings on the Applicant's recusal Motion dated 21st October, clearly the subordinate Court acted on wrong principles in breach of the audi alteram partem rule and thereby arrived at an incorrect, illegal and wholly improper decision and order as impugned.
15. According to the applicant the discretion accorded to the Honourable Magistrate to deal with such a recusal Motion as the Applicant tendered before her must be weighed against the weightier consideration of just, impartial and constitutionally-envisaged rendition of justice in the public interest and especially to the Applicant. In his view the honorable magistrate failed to exercise her discretion judiciously.
16. The applicant urged this court on review to assess whether the Hon. Chief Magistrate's decision to summarily dismiss the Applicant's recusal Motion in the subsisting Criminal proceedings meets the expectations of, and/or conforms to Article 159(2) (b) of the Constitution of Kenya which mandates that justice is not only to be seen to be done, but that justice is actually done in the subject matter.
17. The applicant cited Section 364 of the Criminal Procedure Code which provides that;-
"(1) In the case of a proceeding in a subordinate court the record of which has
been called for or which has been reported for orders, or which otherwise comes
to its knowledge, the High Court may-
(a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;
(b) in the case of any other order other than an order of acquittal, alter or reverse the order."
18. The applicant submitted that no prejudice will be visited on the Respondent if the in Review orders sought herein are granted.
19. The applicant citing the Bangalore Principles urged the court to consider that judicial impartiality and neutrality is key in the administration of justice.
20. The applicant went further to argue that by rendering a verdict on 23rd October, 2025 on the Applicant's Motion dated 21st October, 2025, no Directions on the disposal of the said Motion were given nor did the Court consider that service of the said Motion on the Prosecution as well as the 2nd Accused Person was an integral imperative in the just determination of the said Motion.
21. Consequently, the Applicant's seeks to have the Revision sought herein ought to be granted by quashing the trial Courts' Ruling and orders dated 23rd October, 2025 and transfer the matter in the Subordinate Court to a different Court of concurrent jurisdiction.
22. The supporting affidavit by the applicant need not be reproduced here for it basically reiterates the submissions by the applicant as contained in the Notice of Motion.
RESPONDENT'S CASE
23. The respondent is opposed to the Revision application and in support of his position he filed a replying affidavit sworn by N o.80936 detective sergeant NICOLAUS OSURI OTIENO a police officer attached to the Directorate of Criminal Investigation.
24. The officer deponed that he is a police officer attached to the Directorate of Criminal Investigation, one of the investigating officers in Nairobi Chief Magistrate Court Criminal Case No. E1137 of 2023.
25. He had read, and where necessary, been explained to by the prosecution counsel on record the meaning and import of the application dated 30th October, 2025 and the affidavit in support thereof.
26. In response to the application, he opposed the same for and on behalf of the responden
27. The officer asserted that the Trial Magistrate expressly made reference to and
considered the Application for recusal in her ruling.
28. According to him the court duly addressed the issues raised therein, and correctly stated that it would not delve into the merits of the case as the same was still pending before trial.
29. Consequently, in his view the Applicant cannot validly contend that the Trial Court failed to consider all the grounds for recusal advanced in the Application.
30. The prosecution took the position that it did not suffer any prejudice by not filing a
response to, or being head on, the Application, as
[...truncated]
1. The applicant in this is the 1 st accused in Milimani Chief Magistrate’s Court Criminal Case Number E1137 of 2023.
2. The applicant made an application for recusal dated 21 st October 2025 before the Learned Honorable Magistrate who in a Ruling delivered on 23 rd October 2025 declined to recuse herself from the matter prompting the instant Revision.
3. The Notice of Motion seeks the following ORDERS;-
a). This Criminal Revision application be certified as urgent, and directions on its urgent disposal be issued (spent).
b). Pending the hearing and determination of the instant Motion, there be a stay of the proceedings, and any further proceedings in Nairobi MCCR/E1137/2023 (Republic vs. Davis Chelogoi & Andrew Kirungu), until further Order of this Honourable Court
c). This Honourable Court in exercise of its revisionary powers pursuant to Sections 362 and 364 of the Criminal Procedure Code be pleased to call up for review of the Ruling and Orders dated 23rd October 2025 by the Hon. Dolphinia Alego dismissing the Applicant's/1st Accused Person's Recusal Motion dated 21st October, 2025 in Nairobi MCCR/E1137/2023 (R vs. Davis Chelogoi & Andrew Kirungu), with a view to satisfying itself as to the correctness, legality, and/or propriety of the said Ruling and Orders in the stated Case.
d). Upon the grant of prayer 2 herein, this Honourable Court be pleased to review, vacate and set aside in toto the order dated 23rd October 2025 by the Hon. Dolphina Alego dismissing the Applicant's/1st Accused Person's Recusal Motion dated 21st October, 2025 in Nairobi MCCR/E1137/2023 (R vs. Davis Chelogoi & Andrew Kirungu), and consequent thereupon to order that the trial in the said Criminal proceedings proceed forthwith to their logical conclusion before any other Court of competent jurisdiction in Nairobi Chief Magistrates Court, with the exclusion of the Hon. Dolphina Alego CM.
e). This Honourable Court be pleased to issue any such further order(s) as it
expedient to meet the ends of justice.
f). The costs of the application herein be provided for.
APPLICANTS CASE
4. The application is based on the grounds and submissions by the applicant as hereunder;-
A . Jurisdictional bases of the High Court's intervention herein sought in Review
i) Article 50(1) of the Kenyan Constitution declares the Applicant's Constitutional right to have his Criminal case Nairobi MCCR/E1137/2023 (R vs. DAVIS CHELOGOI & ANDREW KIRUNGU), as an Accused person in the cited Nairobi Chief Magistrates Criminal Court Case resolved by the application of law, and decided in a fair, impartial and public hearing before the Court or, if appropriate, another independent and impartial tribunal or body.
ii). The Applicant as the 1ST Accused in the Criminal proceedings complains that the Hon. Chief Magistrate adjudicating on the Applicant's Criminal trial has been biased and openly partial in not recording the proceedings of his defence trial, thereby gravely prejudicing him.
iii). Further, Article 50(1) of the Constitution of Kenya, is cross-cutting, and applies equally to Accused Persons such as the Applicant herein.
iv). Article 165(6) and (7) of the Constitution of Kenya both confer upon this Honourable Court supervisory jurisdiction over subordinate Courts such as the Chief Magistrates' Court at Nairobi in the instant Case and over any person, body or authority exercising a judicial or quasi-judicial function, (but not over a superior court).
V). Additionally, the object of, and pursuant to Article 165(6), the High Court may call for the record of any proceedings before any court or person, body of authority referred to in the said Article 165(6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice, as herein sought by the Applicant.
vi). In turn, Section 362 of the Criminal Procedure Code provides that the High Court may call for and examine the record of any criminal proceedings before any 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 any proceedings of any such subordinate court.
vii). Additionally, Section 364 of the Criminal Procedure Code empowers the High Court on revision as sought herein, in the case of the subject proceedings in the Nairobi subordinate court, the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may, in the case of any other order other than an order of acquittal, alter or reverse the order.
viii). In the result, the duty of this Honourable Court is to satisfy itself as 'to the correctness, legality, or propriety of any finding, sentence or order recorded or passed' as was made by the Hon. Dolphina Alego on 23rd October, 2025 summarily dismissing the Applicant's/1st Accused Person's Recusal Motion dated 21st October, 2025 in NAIROBI
MCCR/E1137/2023 (R vs. DAVIS CHELOGOI & ANDREW KIRUNGU), without any directions thereon, room for service of the same on the Prosecution and the 1st Accused Person and rendered a Ruling without hearing the Applicant/1st Accused Person at all.
ix). Section 367 of the Criminal Procedure Code in turn provides that when a case is revised by the High Court it shall certify its decision or order to the Court by which the sentence or order so revised was recorded or passed, and the Court to which the decision or order is so certified shall thereupon make such orders as are conformable to the decision so certified, and, if necessary, the record shall be amended in accordance therewith.
x). Section 81(1)(a) and (e) of the Criminal Procedure Code provides that 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; in consequence this Court is empowered to transfer the matter to another court of competent jurisdiction to hear and determine the matter. Xi). Section 81(3) of the Criminal Procedure Code demands the making of this Motion.
The foregoing constitutes the jurisdictional bases which the Applicant herein invokes in his instant Revision application.
B. Merits of the Applicant's Review Application, entitling the High Court to
Review the impugned Order made by the Hon. Dolphina Alego CM
xii). The Applicant's complaints informing the recusal of the Hon. Dolphina Alego from the further adjudication of NAIROBI MCCR/E1137/2023 (R vs. DAVIS CHELOGOI & ANDREW KIRUNGU) in which the Applicant is the 1st Accused Person informally expressed by the Applicant to the said Learned Magistrate conducting the trial on 16th October, 2025 whereupon he was directed to lodge a formal application.
xiii). Indeed, and in deference to the said Order, the Applicant formally lodged a Recusal Motion dated 21st October, 2025, and in expectation of a fair hearing, waited for Directions thereon from the Hon. Dolphina Alego on the manner of disposal of his said Motion on 23rd October, 2025 which was the return Mention date for the stated
NAIROBI MCCR/E1137/2023 (R vs. DAVIS CHELOGOI & ANDREW KIRUNGU).
xiv). Before the Applicant (being the 1st Accused) could even serve the stated recusal Motion dated 21st October, 2025 on the Director of Public Prosecutions, or even the 1st Accused (the named Interested Party herein) the Hon. Dolphina Alego shockingly proceeded on 23rd October 2025 to render the impugned Ruling, in which she summarily dismissed the Applicant's said recusal Motion without reading it, referencing it in her entire span of the Ruling; and worse, without affording the Applicant any hearing, or any form of hearing of whatever sort on his said recusal Motion, to the detriment and injury of the Applicant.
Xv). None of the Grounds (a) to (m) spelt out in the Applicant's recusal Motion before the Hon. Dolphina Alego were addressed, ruled upon, or canvassed in the summary dismissal of the Applicant's said Motion. These Grounds were elaborately pleaded in the
said Motion as:-
a) Failure to Properly Record Proceedings : The Learned Magistrate has, on multiple occasions, been interjected by counsel for the Accused Persons due to
her failure to properly and accurately record court proceedings.
The applicant submitted that a complete and accurate record of proceedings is fundamental to the administration of a fair trial, and the absence thereof significantly compromises the rights of the Accused under Article 50 of the Constitution.
b) According to the applicant, during the testimony and cross-examination of key witnesses particularly those whose evidence was exculpatory to the Accused - the Learned Magistrate exhibited a lack of diligence in recording proceedings. The applicant argued that such selective inattention compromises the integrity of the court record and suggest an unwillingness to capture evidence favourable to the Defence, violating the principle of impartiality enshrined in Rule 4(1)(a) of the Judicial Code of Conduct.
c) the applicant submitted that, the Investigating Officer irregularly produced documents purportedly authored by one Mr. Augustine Mbiria, who was deceased at the time. Despite defence objections that the prosecution had not produced any
death certificate or proof of authorship, the Learned Magistrate failed to record
the objection or issue a ruling. The documents were nevertheless admitted as
Exhibit 57, in contravention of Sections 64, 67, and 68 of the Evidence Act, and
in disregard of the duty to ensure evidentiary integrity. The omission
demonstrates procedural bias and a breach of the obligation to uphold
fairness and integrity.
d) the applicant went further to submit that throughout the proceedings the Learned Magistrate has consistently refused or neglected to record objections raised by the Defence and has often proceeded without delivering reasoned rulings. This recurrent omission portrays a deliberate effort to suppress the Defence's procedural record and violates Article
50(2)(c) on the equality of arms and Rule 3(4) of the Judicial Code, which
mandates Judicial officers to maintain complete and accurate court records.
e) Neglect During Critical Testimony : the applicant further submitted that despite repeated concerns raised by the Defence, the Learned Magistrate has demonstrated an apparent lack of interest in recording proceedings, particularly during the cross-examination and
examination of witnesses whose testimonies contain critical exculpatory
evidence. This failure is especially pronounced when Defence witnesses
testify. Such behavior, even if unintentional, gives rise to a reasonable
apprehension of bias, contravening Value 1 (independence) and Value 2
(impartiality) of the Bangalore Principles of Judicial Conduct and Rule 6(1)
of the Judicial Code.
f) Apparent Bias in Demeanour : This matter involves competing claims of
ownership over the same parcel of land-LR No. 18485 IR 232908 (held by the
1st Accused) and LR No. 18485 IR 64011 (held by the Complainant). In such
circumstances, the impartiality of the trial court is paramount. However,
the Defence has observed that the Learned Magistrate displays evident
attentiveness and diligence when the Complainant and his witnesses testify, yet
shows visible disinterest and casualness during the testimony of the Defence and their witnesses.
g) The selective recording of evidence and unequal treatment of witnesses
indicates that the Learned Magistrate may have formed a preconceived view on
the merits of the case. This perception of prejudgement offends Article 50(1) of
the Constitution, which guarantees an independent and impartial tribunal, and
violates the duty of open-minded adjudication under Rule 8(1) of the Judicial
Code.
h) Prejudgment of the Matter : The applicant went on to argue that this differential treatment suggests the court may have adopted a preconceived position on the matter. The selective recording of evidence compromises the integrity and completeness of the court record and appears calculated to produce a predetermined outcome favouring the Complainant.
i) Improper Intervention by the Court : according to the applicant, during trial, the Prosecution supplied voluminous document bundles to the Defence. However, certain documents containing exculpatory content were not produced by the Prosecution. When the Defence sought to produce these same documents-originally disclosed by the Prosecution-the Learned Magistrate, suo motu, raised an objection to their production, even though no such objection was raised by the Prosecution. This conduct gives the impression that the Learned Magistrate has improperly assumed the dual role of prosecutor and adjudicator, in a manner that undermines judicial neutrality.
j) Information Suggesting Prejudgment and External Pressure : the applicant further submitted that prior to the defence hearing, the 1st Accused was informed by a reliable private source that the Learned Magistrate had allegedly predetermined to convict the Accused persons, purportedly as a result of external pressure from third parties with vested interests in the matter. If true, this raises grave concerns as to whether the proceedings are being conducted with the judicial
independence required under the Constitution.
k) Conduct Surrounding Adjournment Request: The applicant went on to state that his concerns were further reinforced on 9th October 2025, when the defence sought an adjournment due to a personal emergency affecting Counsel for the 1st Accused being taken ill.
Notice of the emergency had been formally communicated to the Prosecution
and Counsel for the 2nd Accused via a letter dated 6th October 2025, duly filed
on the Court's digital platform. The letter further clarified that the next
scheduled hearing on 16th October 2025 could proceed as planned.
1) Prejudicial Direction by the Court : Despite this being the Defence's first
adjournment request, the Learned Magistrate unexpectedly directed that the 1st
Accused be stood down from cross-examination and that the 2nd Accused
proceed with examination-in-chief. The 2nd Accused raised a formal
objection, rightly pointing out that the altered sequence would prejudice
the Defence case and distort the record.
m) Raising of Extraneous Matters : further the applicant contended that although the Learned Magistrate reluctantly granted the adjournment, she proceeded to raise extraneous issues not introduced by any party. Her remarks and overall conduct during the session
reinforced the Defence's perception of a personal interest in the matter, further
undermining the requirement of impartiality.
n) the applicant further stated that on the material dates the Learned Magistrate expressly stated on record that she was "under pressure other quarters" in relation to the conduct of this matter. This extraordinary statement, made in open court, confirms that the Learned Magistrate is taking into account communications or instructions from undisclosed third parties who are not participation in these proceedings.
o) according to the applicant, upon perusal of the Court file, it is evident that no such correspondence or letter has been authored by counsel for the 1st Accused, counsel for the 2nd Accused, or by the Prosecution. The identity of the "other quarters" referred to by the Learned Magistrate remains unknown to the Accused.
p) Such a disclosure from the bench raises grave concern that the court's independence and impartiality have been compromised. If indeed the Learned Magistrate is under external pressure or influence, then she cannot fairly or freely determine this matter. This conduct contravenes Article 160(1) of the Constitution which guarantees judicial independence, as well as Rule 3(5) and Rule 4(1)(a) of the Judicial Code of conduct and Ethics (2016), which
prohibit judicial officers from allowing any person, authority, or institution to direct or control the exercise of judicial functions.
q) The applicant asserted that the statement from the Learned Magistrate further validates the 1st Accused's apprehension that the court has aligned itself with external interest hostile to the defence, thereby establishing a well reasoned ground for bias and justifying recusal in the interests of justice and public confidence in the judiciary.
r) Knowledge of Ongoing ELC Proceedings : The trial court is fully aware of the ongoing proceedings before the Environment and Land Court in ELC Case No.
E070 of 2023 - Davis Nathan Chelugoi v. Ashok Rupshi Shah & 4 Others, as
well as Civil Appeal No. E700 of 2024 - Ashok Rupshi Shah & Another v. Davis Nathan Chelugoi & 3 Others, where the central issue for determination is the ownership of the disputed property. The court is also aware of subsisting orders issued in those matters.
s) Disregard for Article 162 Jurisdictional Limits : the applicant submitted that in clear contravention of Article 162(2)(b) of the Constitution-which confers exclusive jurisdiction upon the Environment and Land Court to determine disputes relating to land-the
Learned Magistrate, in concert with the Prosecution, has proceeded to
adjudicate on the issue of ownership within these criminal proceedings.
t) Selective Reliance on Prior Judgments: it was further urged for the applicant that despite being aware that the ownership dispute is actively pending before the Environment and Land Court, the trial court has selectively relied on a judgment issued in ELC Case No. 312 of 2009, which favours the Complainant. Notably, the 1st Accused was not a party to that
case, and the judgment does not address or affect his title. The court has
simultaneously ignored more recent and directly relevant orders,
including those issued on 22nd April 2024 in ELC Case No. E070 of 2023,
which permit the 1st Accused to remain in lawful possession of the suit
property.
u) The applicant further contends that the Learned Magistrate has repeatedly prevented the Defence from cross examining witnesses, especially regarding documents supplied by the
Prosecution but allegedly are "before other courts". This position is legally incorrect and has curtailed the Defence's constitutional right to challenge the evidence presented against them under Article 50(2)(k), amounting to procedural unfairness and judicial overreach.
v) Usurping the Jurisdiction of the ELC : By effectively turning these criminal
proceedings into a parallel forum to adjudicate the question of ownership of LR
No. 18485 IR 64011 and LR No. 18485 IR 232908, the Learned Magistrate has
overstepped her jurisdiction. This is despite full knowledge that this issue is
squarely within the exclusive domain of the Environment and Land Court,
pursuant to Article 162(2)(b) of the Constitution.
vi). In the light of the foregoing, the applicant asserts that very weighty basis for recusal was not considered at all by the Learned Magistrate thus the Applicant has reasonable apprehension (and even any right thinking person would arrive at the same conclusion), that a fair and impartial trial will certainly not be had before the said Hon. Magistrate in her failure to record the evidence during the Defence hearing, and indeed her open bias by summarily dismissing the Applicant's recusal Motion without any hearing thereon, such as to make it appear that it is expedient for the ends of justice that an order for transfer ought to be made from her to a different Court of equal jurisdiction.
vii). The applicant further contends that the Prosecution as well as the 2 nd Accused did not file a single document in opposition of support of the Applicant's recusal Motion and indeed the Learned Magistrate in her impugned Ruling did not reference the Prosecution's take and/or position on the said recusal Motion.
viii). According to the applicant the very contents of the Learned Hon. Magistrate's impugned Ruling and Order dismissing the Applicant's Recusal Motion certainly confirms the court's unmitigated bias, and allusion to and reference to extraneous matters not pleaded at all by the Applicant or even averred in the least in his Supporting Deposition.
a) She stated in page 1, line 10 to 12 in the impugned Ruling thus:-
"A lot has been mentioned about my writings, my body language, the strolling of my person, the perversion of public knowledge of the particular case both in the newspapers and lately in parliament, the citations of the other legal cases in superior courts averred by counsel and his client."
The Applicant contends that in the entire span of his Supporting Affidavit sworn on 21st
October, 2025 never made any such allegations howsoever against the Learned Magistrate as attributed to the Applicant in the stated remarks, demonstrating her lack of impartiality and expressive of her bias attitude.
ix). According to the applicant in this instance, the drawing of extraneous sources of self-attack by the Learned Magistrate "in newspapers" without any single piece of evidence in support and turning to accuse the Applicant of such spurious allegations to deny him the recusal Motion was (with respect) capricious and expressive of bias against the Applicant. The applicant also denied the accusations of attempt to intimidate the trial court.
x). The Applicant submitted that his counsel did not in any respect bullying the Court by his subject recusal Motion and it is clear that the Learned Magistrate approached the Applicant's
Motion with a closed and predetermined mind.
xi. the applicant contends that from the stated remarks of the learned Honorable magistrate in her ruling, she cannot in the circumstances objectively, fairly and impartially determine the the trial.
5. The applicant went on to reproduce the following excerpt from the ruling as a demonstration of the magistrates apparent bias;-
"It is now in common knowledge [sic] that the tactics being used herein are what A1 us using to intimidate the court within and without. The Judiciary is totally independent arm of government [sic] as stipulated in the constitution."
[emphasis added]
6. The applicant denies ever engaging in the alleged "tactics" which the Learned Magistrate alleged was "common knowledge", and without any evidence of such attribution from any quarter, (not even the Prosecution), which is demonstrative of the Learned Magistrate's bias and lack of impartiality.
7. The applicant argued that by importing extraneous considerations into the matter before her, as penned in her impugned Ruling, the apprehensions of impartiality of the Learned Magistrate expressed by the Applicant have been amply demonstrated.
8. The applicant further stressed that the Learned Magistrate proceeded to drag in the Applicant's Counsel into her Ruling allegedly as part of the Applicant's recusal move against her, and accused the learned Counsel thus, without any evidence from the Prosecution, Accused 2 or any other person the learned honorable magistrate wrote:-
"In a nut shell the application is properly executed to intimidate. The Court will be
careful not to be annoyed with counsel or his client but express mentorship that
counsel should be above board and stable before penning and such allegations which literally are his self-lamentations.
We have read and seen our names being dragged in to the public gallery but
we choose the oath of office, the constitution, rule of law and above all God."
9. The Applicant's Learned Counsel argued that he was wrongly crucified as the author of a recusal application solely to intimidate the trial Magistrate which demonstrates that the no matter the merits of the Applicant's motion for recusal, the Learned Magistrate had closed her mind to the merits thereof and reduced it to an intimidatory move against her, which it never was.
10. The applicant took issue with the manner and style in which the learned honarable magistrate quoted authorities in her ruling as yet another ground for this court to revise her ruling. The applicants counsel posited that the portions of the decisions cited by the magistrate amounted to plagiarism for there was no proper referencing according to him.
11. The applicant summed up the submissions by stating that by referencing extraneous matters that had neither been pleaded by the Applicant nor stated by the Prosecution (or any other party before her) on matters unrelated to the trial before her while castigating the Applicant for lodging his recusal Motion, the Learned Magistrate sent an unequivocal signal that she was bitter with the Applicant in moving the Court to recuse itself, and hence she cannot and could not be objective at all in the trial.
12. In the foregoing circumstances, the applicant posits that the inevitable perception that the ends of justice will not be met by the Hon. Dolphina Alego continuing with the proceedings is incontestable and that the trial will not meet the test of a fair trial as envisaged under Article 50 of the Constitution.
13. The Applicant maintained that he moved the Subordinate Court in the manner prescribed by this Court in case of Joseph Odhiambo Omondi v Republic [2017] eKLR, (Mrima J) demonstrating to her the Applicant's real as opposed to fictional apprehension that the entire trial was unlikely to proceed in an impartial manner before her.
14. . In depriving the Applicant any form of audience before making her impugned findings on the Applicant's recusal Motion dated 21st October, clearly the subordinate Court acted on wrong principles in breach of the audi alteram partem rule and thereby arrived at an incorrect, illegal and wholly improper decision and order as impugned.
15. According to the applicant the discretion accorded to the Honourable Magistrate to deal with such a recusal Motion as the Applicant tendered before her must be weighed against the weightier consideration of just, impartial and constitutionally-envisaged rendition of justice in the public interest and especially to the Applicant. In his view the honorable magistrate failed to exercise her discretion judiciously.
16. The applicant urged this court on review to assess whether the Hon. Chief Magistrate's decision to summarily dismiss the Applicant's recusal Motion in the subsisting Criminal proceedings meets the expectations of, and/or conforms to Article 159(2) (b) of the Constitution of Kenya which mandates that justice is not only to be seen to be done, but that justice is actually done in the subject matter.
17. The applicant cited Section 364 of the Criminal Procedure Code which provides that;-
"(1) In the case of a proceeding in a subordinate court the record of which has
been called for or which has been reported for orders, or which otherwise comes
to its knowledge, the High Court may-
(a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;
(b) in the case of any other order other than an order of acquittal, alter or reverse the order."
18. The applicant submitted that no prejudice will be visited on the Respondent if the in Review orders sought herein are granted.
19. The applicant citing the Bangalore Principles urged the court to consider that judicial impartiality and neutrality is key in the administration of justice.
20. The applicant went further to argue that by rendering a verdict on 23rd October, 2025 on the Applicant's Motion dated 21st October, 2025, no Directions on the disposal of the said Motion were given nor did the Court consider that service of the said Motion on the Prosecution as well as the 2nd Accused Person was an integral imperative in the just determination of the said Motion.
21. Consequently, the Applicant's seeks to have the Revision sought herein ought to be granted by quashing the trial Courts' Ruling and orders dated 23rd October, 2025 and transfer the matter in the Subordinate Court to a different Court of concurrent jurisdiction.
22. The supporting affidavit by the applicant need not be reproduced here for it basically reiterates the submissions by the applicant as contained in the Notice of Motion.
RESPONDENT'S CASE
23. The respondent is opposed to the Revision application and in support of his position he filed a replying affidavit sworn by N o.80936 detective sergeant NICOLAUS OSURI OTIENO a police officer attached to the Directorate of Criminal Investigation.
24. The officer deponed that he is a police officer attached to the Directorate of Criminal Investigation, one of the investigating officers in Nairobi Chief Magistrate Court Criminal Case No. E1137 of 2023.
25. He had read, and where necessary, been explained to by the prosecution counsel on record the meaning and import of the application dated 30th October, 2025 and the affidavit in support thereof.
26. In response to the application, he opposed the same for and on behalf of the responden
27. The officer asserted that the Trial Magistrate expressly made reference to and
considered the Application for recusal in her ruling.
28. According to him the court duly addressed the issues raised therein, and correctly stated that it would not delve into the merits of the case as the same was still pending before trial.
29. Consequently, in his view the Applicant cannot validly contend that the Trial Court failed to consider all the grounds for recusal advanced in the Application.
30. The prosecution took the position that it did not suffer any prejudice by not filing a
response to, or being head on, the Application, as
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