RULING
1. The Applicant, Dominic Oigara, is the accused person in Etago SPM Criminal Case No. E032 of 2024, where he is charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act.
2. By his Notice of Motion brought under sections 81 and 362 of the Criminal Procedure Code, the Applicant seeks, in substance, that the said criminal case be transferred from Etago Magistrate’s Court to another competent court; that this Court calls for the lower court file for revision; and that the Court finds that his right to a fair trial was violated on account of being made to proceed with the trial while sick.
3. The application is supported by the Applicant’s affidavit. He avers that the trial court is biased, that he was compelled to proceed with the hearing despite being unwell, and that he feels unsafe with the proceedings before the trial court.
4. The Respondent opposes the application through grounds of opposition. It contends that the application is frivolous, vexatious and an abuse of the court process; that it is intended to delay or frustrate the prosecution; that the Applicant is forum shopping; that the threshold for transfer has not been met; and that no bias has been demonstrated against the trial court.
5. The proceedings availed to this Court show that on 11th March 2025, the matter came up before Hon. V. M. Moguche, RM. The prosecution indicated that it had one witness. The Applicant, who was present, stated that he was ready. The court then directed the matter to proceed.
6. The record further shows that PW3 testified on that day and was cross-examined by the Applicant. There was no re-examination. When the prosecution sought an adjournment on the basis that the investigating officer and other police officers were yet to testify, the Applicant stated that he had no objection. The court allowed the adjournment and fixed the matter for further hearing on 8th April 2025, with a routine mention on 1st April 2025.
7. It is after adjournment was granted that the Applicant stated that he was unwell. The trial court recorded the complaint and directed that the Applicant be availed for treatment.
8. On 1st April 2025, the Applicant’s application was placed before the trial court. The Applicant complained that he had not been given adequate time to cross-examine witnesses and that his health was not good. The prosecution opposed the application and stated that the case was nearing conclusion, but also indicated that if the Applicant wished to recall any witness, the matter could be considered in accordance with the law. The trial court reserved its ruling for 8th April 2025. The record shows that the ruling was delivered on that date and the matter was fixed for further directions on 29th April 2025.
9. The issue for determination is whether the Applicant has established a proper basis for transfer of the criminal case or for this Court’s intervention in revision.
10. Section 81 of the Criminal Procedure Code empowers the High Court to transfer a criminal case where it is made to appear that a fair and impartial trial cannot be had before the subordinate court, or where transfer is otherwise expedient for the ends of justice.
11. The power to transfer a criminal case is discretionary, but the discretion must be exercised judicially. The Applicant must place before the Court cogent material showing a reasonable apprehension that he will not receive a fair and impartial trial. Mere suspicion, discomfort or dissatisfaction with the manner in which a trial court manages proceedings is not sufficient.
12. In John Brown Shilenje v Republic, Criminal Application No. 180 of 1980, the Court held that the test is whether there is reasonable apprehension in the mind of the applicant, or of a right-thinking person, that a fair trial may not be had before the magistrate. Mere allegations do not suffice; there must be reasonable grounds for the apprehension.
13. The Applicant’s allegation of bias is general. He has not identified any specific remark, ruling, conduct or circumstance from which bias may reasonably be inferred. The record placed before this Court instead shows that the Applicant was heard, was allowed to cross-examine PW3, raised no objection to adjournment, and when he stated that he was unwell, the trial court directed that he be availed for treatment.
14. The complaint that the case is being fast-tracked is not, by itself, evidence of bias. Criminal trials should proceed without unreasonable delay. That duty serves the interests of the accused person, the complainant, witnesses and the administration of justice.
15. On the complaint that the Applicant was made to proceed while sick, the record does not show that the Applicant raised a medical complaint before or during PW3’s testimony and that the trial court ignored it. In fact before hearing started on he material day he said he was ready to proceed . The complaint was recorded after the adjournment had been granted, and the court responded by directing that the Applicant be availed for treatment.
16. Section 362 of the Criminal Procedure Code empowers the High Court to call for and examine the record of subordinate court proceedings to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order, and as to the regularity of the proceedings.
17. Revisionary jurisdiction is not meant to interrupt ongoing criminal proceedings merely because an accused person is dissatisfied with the conduct of the trial. It is invoked where a specific illegality, impropriety, incorrectness or irregularity is demonstrated.
18. In this case, the Applicant has not demonstrated any illegality, impropriety or irregularity warranting revisionary intervention. His grievances are matters which the trial court has either addressed or can address in the ordinary conduct of the trial.
19. If the Applicant is medically indisposed at any stage of the proceedings, he remains at liberty to raise the issue before the trial court and, where necessary, support it with medical material. The trial court shall consider any such request on its merit, bearing in mind the Applicant’s right to a fair trial.
20. In the result, the Notice of Motion lacks merit and is dismissed. Etago SPM Criminal Case No. E032 of 2024 shall proceed before the trial court in accordance with the law.
21. Mention on 9.7.26 before the trial court for directions on further hearing .
22. Production order to issue for accused for that date .
T.A ODERA
JUDGE
25.6.26
DATED, SIGNED AND DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 25 TH DAY OF JUNE 2026 IN THE PRESENCE OF THE APPLICANT, MR KOIMA FOR THE STATE AND CA KICHIRCHIR
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1. The Applicant, Dominic Oigara, is the accused person in Etago SPM Criminal Case No. E032 of 2024, where he is charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act.
2. By his Notice of Motion brought under sections 81 and 362 of the Criminal Procedure Code, the Applicant seeks, in substance, that the said criminal case be transferred from Etago Magistrate’s Court to another competent court; that this Court calls for the lower court file for revision; and that the Court finds that his right to a fair trial was violated on account of being made to proceed with the trial while sick.
3. The application is supported by the Applicant’s affidavit. He avers that the trial court is biased, that he was compelled to proceed with the hearing despite being unwell, and that he feels unsafe with the proceedings before the trial court.
4. The Respondent opposes the application through grounds of opposition. It contends that the application is frivolous, vexatious and an abuse of the court process; that it is intended to delay or frustrate the prosecution; that the Applicant is forum shopping; that the threshold for transfer has not been met; and that no bias has been demonstrated against the trial court.
5. The proceedings availed to this Court show that on 11th March 2025, the matter came up before Hon. V. M. Moguche, RM. The prosecution indicated that it had one witness. The Applicant, who was present, stated that he was ready. The court then directed the matter to proceed.
6. The record further shows that PW3 testified on that day and was cross-examined by the Applicant. There was no re-examination. When the prosecution sought an adjournment on the basis that the investigating officer and other police officers were yet to testify, the Applicant stated that he had no objection. The court allowed the adjournment and fixed the matter for further hearing on 8th April 2025, with a routine mention on 1st April 2025.
7. It is after adjournment was granted that the Applicant stated that he was unwell. The trial court recorded the complaint and directed that the Applicant be availed for treatment.
8. On 1st April 2025, the Applicant’s application was placed before the trial court. The Applicant complained that he had not been given adequate time to cross-examine witnesses and that his health was not good. The prosecution opposed the application and stated that the case was nearing conclusion, but also indicated that if the Applicant wished to recall any witness, the matter could be considered in accordance with the law. The trial court reserved its ruling for 8th April 2025. The record shows that the ruling was delivered on that date and the matter was fixed for further directions on 29th April 2025.
9. The issue for determination is whether the Applicant has established a proper basis for transfer of the criminal case or for this Court’s intervention in revision.
10. Section 81 of the Criminal Procedure Code empowers the High Court to transfer a criminal case where it is made to appear that a fair and impartial trial cannot be had before the subordinate court, or where transfer is otherwise expedient for the ends of justice.
11. The power to transfer a criminal case is discretionary, but the discretion must be exercised judicially. The Applicant must place before the Court cogent material showing a reasonable apprehension that he will not receive a fair and impartial trial. Mere suspicion, discomfort or dissatisfaction with the manner in which a trial court manages proceedings is not sufficient.
12. In John Brown Shilenje v Republic, Criminal Application No. 180 of 1980, the Court held that the test is whether there is reasonable apprehension in the mind of the applicant, or of a right-thinking person, that a fair trial may not be had before the magistrate. Mere allegations do not suffice; there must be reasonable grounds for the apprehension.
13. The Applicant’s allegation of bias is general. He has not identified any specific remark, ruling, conduct or circumstance from which bias may reasonably be inferred. The record placed before this Court instead shows that the Applicant was heard, was allowed to cross-examine PW3, raised no objection to adjournment, and when he stated that he was unwell, the trial court directed that he be availed for treatment.
14. The complaint that the case is being fast-tracked is not, by itself, evidence of bias. Criminal trials should proceed without unreasonable delay. That duty serves the interests of the accused person, the complainant, witnesses and the administration of justice.
15. On the complaint that the Applicant was made to proceed while sick, the record does not show that the Applicant raised a medical complaint before or during PW3’s testimony and that the trial court ignored it. In fact before hearing started on he material day he said he was ready to proceed . The complaint was recorded after the adjournment had been granted, and the court responded by directing that the Applicant be availed for treatment.
16. Section 362 of the Criminal Procedure Code empowers the High Court to call for and examine the record of subordinate court proceedings to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order, and as to the regularity of the proceedings.
17. Revisionary jurisdiction is not meant to interrupt ongoing criminal proceedings merely because an accused person is dissatisfied with the conduct of the trial. It is invoked where a specific illegality, impropriety, incorrectness or irregularity is demonstrated.
18. In this case, the Applicant has not demonstrated any illegality, impropriety or irregularity warranting revisionary intervention. His grievances are matters which the trial court has either addressed or can address in the ordinary conduct of the trial.
19. If the Applicant is medically indisposed at any stage of the proceedings, he remains at liberty to raise the issue before the trial court and, where necessary, support it with medical material. The trial court shall consider any such request on its merit, bearing in mind the Applicant’s right to a fair trial.
20. In the result, the Notice of Motion lacks merit and is dismissed. Etago SPM Criminal Case No. E032 of 2024 shall proceed before the trial court in accordance with the law.
21. Mention on 9.7.26 before the trial court for directions on further hearing .
22. Production order to issue for accused for that date .
T.A ODERA
JUDGE
25.6.26
DATED, SIGNED AND DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 25 TH DAY OF JUNE 2026 IN THE PRESENCE OF THE APPLICANT, MR KOIMA FOR THE STATE AND CA KICHIRCHIR
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