'1. The Applicant seeks two substantive orders:
1) That KEROKA MCCR E546 of 2024 be transferred to another court on the ground that the said court has been compelling him to proceed with the hearing without his consent; and
2) That this Court reviews the bond terms previously granted to him.
2. The Respondent opposed the application, describing it as frivolous and intended to delay the conclusion of a matter that has already been pending for a considerable period.
Background
3. The record demonstrates that Applicant was initially arraigned before the Nyamira Law Courts, where the case progressed and eight (8) prosecution witnesses gave their testimony.
4. On 25th July 2024, the Applicant expressed that he had lost confidence in that court, and on the same date, the matter was ordered transferred to the Kisii Law Courts. Upon perusal of the trial file, however, there is no record or proceedings from the Kisii Law Courts showing that the case was ever listed, mentioned, or handled there.
5. The next entry in the file indicates that the Applicant appeared before the Keroka Law Courts on 15th August 2024, where one prosecution witness subsequently testified. The matter was thereafter fixed for further hearing on 30th October 2025, but the hearing did not proceed as scheduled following the calling of the file by this Court.
6. The present application now seeks yet another transfer of the case and review of the bond terms.
Issues for Determination
7. Having heard both the Applicant and the Respondent, the following issues arise for determination.
1) Whether the Applicant has established sufficient grounds to warrant transfer of KEROKA MCCR E546 of 2024 to another court; and
2) Whether the Applicant has demonstrated justification for review of the bond terms.
Analysis and Determination
(a) Transfer
8. The power of the High Court to transfer or change venue of a criminal case is derived from section 81(1) of the Criminal Procedure Code (Cap. 75, Laws of Kenya), which provides:
“Whenever it is made to appear to the High Court—
(a) that a fair and impartial trial cannot be had in any criminal court subordinate thereto; or
(b) that some question of law of unusual difficulty is likely to arise; or
(c) 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
(d) that an order under this section will tend to the general convenience of the parties or witnesses; or
(e) that such an order is expedient for the ends of justice or is required by any provision of this Code, it may order
(i) 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;
(ii) 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; or
(iii) that an accused person be committed for trial to itself.”
9. The Court of Appeal, in the leading case of Maina wa Kinyatti v Republic [1984] KECA 22 (KLR), interpreted this provision and held:
“The power of transfer of criminal cases is to be exercised with great caution and only when it is shown clearly that a fair and impartial trial cannot be had in the court seized of the matter.”
10. The Court further stated that the proper test is whether there exists a reasonable apprehension, grounded on objective facts and not on mere suspicion, that the accused may not receive a fair and impartial trial.
11. In the present case, the Applicant’s allegation that the Keroka Court has been compelling him to proceed with the hearing without his consent is unsubstantiated. There is no material before this Court to demonstrate any form of bias, coercion, or unfair treatment by the trial magistrate.
12. It is also evident that this is not the first time the Applicant has sought transfer of the matter. The case was initially moved from Nyamira Magistrate’s Court at the instance of the Applicant.
13. In view of this history, the Court is persuaded that the present application is not motivated by any genuine apprehension of injustice, but is rather a deliberate attempt to delay the trial and to tire both the Court and the witnesses, most of whom have already testified. Such conduct constitutes an abuse of the process of the court and undermines the constitutional obligation of expeditious justice under Article 159(2)(b) of the Constitution.
14. The Court further observes that allowing such repetitive and unsupported transfer requests would not only undermine judicial economy but would also expose witnesses to unnecessary inconvenience, fatigue, and delay, contrary to the broader interests of justice.
15. The prayer for transfer therefore fails.
(b) Review of Bond Terms
16. The right to bond is anchored in Article 49(1)(h) of the Constitution of Kenya, 2010, which guarantees that:
“An arrested person has the right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.”
17. In a persuasive decision of the High Court in Republic v Danson Mgunya & Another [2010] KEHC 4116 (KLR), the Court held that while the right to bond is constitutional, its terms may be varied only upon proof of changed circumstances or where the existing terms are shown to be unduly harsh or unreasonable.
18. In the instant case, the Applicant has not disclosed the bond terms currently in force, nor provided any evidence of hardship or changed circumstance to justify variation. His plea for review is unsupported by material evidence and amounts to a bare request. There being no factual or legal foundation, this Court finds no basis to interfere with the discretion already exercised by the trial court.
Disposition
19. Upon consideration of the record, the applicable law, and the oral submissions, I make the following orders:
1) The Applicant’s undated Notice of Motion is devoid of merit and it is dismissed in its entirety.
2) The criminal case shall proceed before the Keroka Law Courts, which is competent to hear and determine the matter.
3) The existing bond terms shall remain in force unless reviewed by the trial court.
4) The trial court file shall be remitted back to Keroka Law Courts without delay
5) The trial court is directed to accord the case expeditious hearing and determination taking into account the existing court’s caseload.
6) This matter having been finalized, the file is closed
Appearances
Court Assistant - Hilda
Applicant - Present in person
Respondent - Mr. Chirchir
'
1) That KEROKA MCCR E546 of 2024 be transferred to another court on the ground that the said court has been compelling him to proceed with the hearing without his consent; and
2) That this Court reviews the bond terms previously granted to him.
2. The Respondent opposed the application, describing it as frivolous and intended to delay the conclusion of a matter that has already been pending for a considerable period.
Background
3. The record demonstrates that Applicant was initially arraigned before the Nyamira Law Courts, where the case progressed and eight (8) prosecution witnesses gave their testimony.
4. On 25th July 2024, the Applicant expressed that he had lost confidence in that court, and on the same date, the matter was ordered transferred to the Kisii Law Courts. Upon perusal of the trial file, however, there is no record or proceedings from the Kisii Law Courts showing that the case was ever listed, mentioned, or handled there.
5. The next entry in the file indicates that the Applicant appeared before the Keroka Law Courts on 15th August 2024, where one prosecution witness subsequently testified. The matter was thereafter fixed for further hearing on 30th October 2025, but the hearing did not proceed as scheduled following the calling of the file by this Court.
6. The present application now seeks yet another transfer of the case and review of the bond terms.
Issues for Determination
7. Having heard both the Applicant and the Respondent, the following issues arise for determination.
1) Whether the Applicant has established sufficient grounds to warrant transfer of KEROKA MCCR E546 of 2024 to another court; and
2) Whether the Applicant has demonstrated justification for review of the bond terms.
Analysis and Determination
(a) Transfer
8. The power of the High Court to transfer or change venue of a criminal case is derived from section 81(1) of the Criminal Procedure Code (Cap. 75, Laws of Kenya), which provides:
“Whenever it is made to appear to the High Court—
(a) that a fair and impartial trial cannot be had in any criminal court subordinate thereto; or
(b) that some question of law of unusual difficulty is likely to arise; or
(c) 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
(d) that an order under this section will tend to the general convenience of the parties or witnesses; or
(e) that such an order is expedient for the ends of justice or is required by any provision of this Code, it may order
(i) 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;
(ii) 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; or
(iii) that an accused person be committed for trial to itself.”
9. The Court of Appeal, in the leading case of Maina wa Kinyatti v Republic [1984] KECA 22 (KLR), interpreted this provision and held:
“The power of transfer of criminal cases is to be exercised with great caution and only when it is shown clearly that a fair and impartial trial cannot be had in the court seized of the matter.”
10. The Court further stated that the proper test is whether there exists a reasonable apprehension, grounded on objective facts and not on mere suspicion, that the accused may not receive a fair and impartial trial.
11. In the present case, the Applicant’s allegation that the Keroka Court has been compelling him to proceed with the hearing without his consent is unsubstantiated. There is no material before this Court to demonstrate any form of bias, coercion, or unfair treatment by the trial magistrate.
12. It is also evident that this is not the first time the Applicant has sought transfer of the matter. The case was initially moved from Nyamira Magistrate’s Court at the instance of the Applicant.
13. In view of this history, the Court is persuaded that the present application is not motivated by any genuine apprehension of injustice, but is rather a deliberate attempt to delay the trial and to tire both the Court and the witnesses, most of whom have already testified. Such conduct constitutes an abuse of the process of the court and undermines the constitutional obligation of expeditious justice under Article 159(2)(b) of the Constitution.
14. The Court further observes that allowing such repetitive and unsupported transfer requests would not only undermine judicial economy but would also expose witnesses to unnecessary inconvenience, fatigue, and delay, contrary to the broader interests of justice.
15. The prayer for transfer therefore fails.
(b) Review of Bond Terms
16. The right to bond is anchored in Article 49(1)(h) of the Constitution of Kenya, 2010, which guarantees that:
“An arrested person has the right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.”
17. In a persuasive decision of the High Court in Republic v Danson Mgunya & Another [2010] KEHC 4116 (KLR), the Court held that while the right to bond is constitutional, its terms may be varied only upon proof of changed circumstances or where the existing terms are shown to be unduly harsh or unreasonable.
18. In the instant case, the Applicant has not disclosed the bond terms currently in force, nor provided any evidence of hardship or changed circumstance to justify variation. His plea for review is unsupported by material evidence and amounts to a bare request. There being no factual or legal foundation, this Court finds no basis to interfere with the discretion already exercised by the trial court.
Disposition
19. Upon consideration of the record, the applicable law, and the oral submissions, I make the following orders:
1) The Applicant’s undated Notice of Motion is devoid of merit and it is dismissed in its entirety.
2) The criminal case shall proceed before the Keroka Law Courts, which is competent to hear and determine the matter.
3) The existing bond terms shall remain in force unless reviewed by the trial court.
4) The trial court file shall be remitted back to Keroka Law Courts without delay
5) The trial court is directed to accord the case expeditious hearing and determination taking into account the existing court’s caseload.
6) This matter having been finalized, the file is closed
Appearances
Court Assistant - Hilda
Applicant - Present in person
Respondent - Mr. Chirchir
'