I. INTRODUCTION
1. Before this Court is a Notice of Motion brought by the Applicant seeking the transfer of Kaloleni MCCR Case No. E189 of 2025 from the Kaloleni Law Courts to the Chief Magistrate's Court at Malindi. The Applicant additionally requests that the proceedings conducted thus far before the trial court be set aside, and that the criminal trial commence de novo before a different magistrate.
2. The application is substantively premised on Section 81 of the Criminal Procedure Code (Cap 75) and Article 50 of the Constitution of Kenya, 2010 , which guarantees every accused person the fundamental right to a fair and impartial trial.
II. THE APPLICANT’S CASE
3. The Applicant is the accused person in Kaloleni MCCR No. E189 of 2025 , where he stands charged with offensive conduct contrary to Section 94(1) of the Penal Code . The prosecution closed its case, and the trial court subsequently placed the Applicant on his defence.
4. The core of this application rests on a deep-seated and asserted apprehension of bias. The Applicant states that he served as a key prosecution witness in Malindi EACC Case No. 2 of 2016 . In that anti-corruption matter, he testified directly against a senior member of the administrative staff, the Court Administrator at the Kaloleni Law Courts. That testimony culminated in the conviction and subsequent interdiction of the said court official from the Judiciary.
5. Crucially, the Applicant points out that, the trial magistrate who presided over his current criminal matter and placed him on his defence, served as the Head of Station at Kaloleni Law Courts during the period when the anti-corruption investigations and testimonies occurred.
6. Through his advocate, the Applicant contends that the entire institutional environment at Kaloleni Law Courts has become hostile toward him. He believes he has been collectively marked as an "enemy" of the station.
7. He claims this hostility manifested during the trial through undocumented physical complaints, unresolved reports of assaults, and a general lack of standard judicial protections from local duty bearers. Consequently, he maintains that no internal re-allocation of the file to another magistrate within the Kaloleni station can cure his reasonable apprehension of bias.
III. THE RESPONDENT’S CASE
7. The Respondent highlighted their duty to ensure that justice is not only done but is manifestly seen to be done. While maintaining that judicial officers are bound by their oath of office to administer justice without fear or favour, the state ultimately left the determination of the institutional transfer to the sound discretion of this Court.
IV. ISSUES FOR DETERMINATION
8. Having considered the pleadings, submissions, and documentation annexed to the application, this Court identifies two primary issues for determination:
a) Whether the Applicant has demonstrated a reasonable apprehension, on a balance of probabilities, that he will not receive a fair and impartial trial at Kaloleni Law Courts.
b) Whether it is expedient for the ends of justice to order a transfer of the file and a order for trial de novo .
V. THE LAW AND ANALYSIS
9. Section 81(1)(a) of the Criminal Procedure Code empowers the High Court to transfer a criminal case from a subordinate court to another court of competent jurisdiction whenever it appears that a fair and impartial trial cannot be accorded. This statutory framework aligns with Article 50(2) of the Constitution, which secures the right to a fair hearing as an absolute, non-derogable standard.
10. The threshold for granting an application for transfer has been firmly established in Kenyan jurisprudence across decades. In the foundational Court of Appeal case of Kinyatti v Republic (1984) KECA 78 (KLR) , Kneller JA, Chesoni, and Nyarangi Ag JJA laid down the definitive test:
"In deciding whether or not to transfer a case from one Court to another, the test is, whether the appellant had made out a clear case by discharging on the balance of probabilities the burden of showing that the apprehension in his mind that he may not have a fair and impartial trial is of a reasonable character."
11. This threshold ensures that the court does not act on the casual, whimsical, or hypersensitive whims of an accused person. As noted in Charles Koigi & 2 Others v Republic and modernised in Jamock Kamakya Mbuvi v Republic (2020) KEHC 1003 (KLR ) , the core metric is the reasonableness of the accused person's fear.
12. To understand who a "reasonable person" is within this context, this Court turns to the timeless and expressive analysis of Kuloba J. in J Kudwoli & Another v Eureka Educational and Training Consultants & 2 Others (1993) KEHC 131 (KLR) :
"A reasonable man is really a cool, level-headed and collected man who acts and reacts in appropriate perspective... He is simply a fair-minded person, and not one with a morbid or unduly suspicious mind... The test of reasonableness which guides and directs the court... requires invoking ordinary intelligence."
13. Applying this standard to the present facts, can a fair-minded person of ordinary intelligence look at the Applicant’s situation and conclude that his fear of bias is reasonable? This Court answers that question in the affirmative.
14. The Applicant did not just testify in an ordinary case; he testified against an administrative pillar of the very station where he is now being tried. His testimony directly disrupted the career and standing of a high-ranking colleague within that courthouse environment. Human experience dictate that such a scenario can easily breed systemic institutional friction. The fact that the trial magistrate was the Head of Station during these contentious events provides a clear, objective nexus for an ordinary observer to doubt whether the trial could proceed entirely unclouded by institutional history.
15. Justice must be pristine. It must remain above the reach of whispers and institutional biases. Even if the learned trial magistrate is entirely capable of separating past administrative history from her current judicial duties, the appearance of potential bias remains overwhelmingly heavy.
16. Where the public or an accused person has an objectively grounded basis to question the neutrality of a court station, the integrity of the judicial process demands immediate intervention.
VI. DISPOSITION
16. In the upshot, this Court finds that the Applicant has discharged his burden on a balance of probabilities. It is highly expedient for the ends of justice that this matter be removed from the environment of Kaloleni Law Courts.
17. To guarantee a flawless and transparent delivery of justice, the proceedings conducted under Kaloleni MCCR No. E189 of 2025 must be vacated entirely so that the new trial court can evaluate the evidence with fresh, uninfluenced eyes.
18. Accordingly, I make the following orders:
a) The application for the transfer of this matter is hereby allowed.
b) The proceedings already conducted in Kaloleni MCCR Case No. E189 of 2025 are hereby set aside in their entirety.
c) The case file shall be transferred forthwith from the Kaloleni Law Courts to the Chief Magistrate's Court at Malindi, with the physical transfer to be completed no later than 29 th September 2026.
d) The matter shall be mentioned before the Deputy Registrar on 1 st October 2026 for directions on the commencement of the trial de novo before a Magistrate of competent jurisdiction.
e) No orders as to Costs.
f) This file is hereby marked as closed.
19. Orders accordingly.
DATED AND DELIVERED AT MALINDI THIS …22 nd .DAY OF SEPTEMBER, 2026.
C.AKAIGWA
JUDGE
1. Before this Court is a Notice of Motion brought by the Applicant seeking the transfer of Kaloleni MCCR Case No. E189 of 2025 from the Kaloleni Law Courts to the Chief Magistrate's Court at Malindi. The Applicant additionally requests that the proceedings conducted thus far before the trial court be set aside, and that the criminal trial commence de novo before a different magistrate.
2. The application is substantively premised on Section 81 of the Criminal Procedure Code (Cap 75) and Article 50 of the Constitution of Kenya, 2010 , which guarantees every accused person the fundamental right to a fair and impartial trial.
II. THE APPLICANT’S CASE
3. The Applicant is the accused person in Kaloleni MCCR No. E189 of 2025 , where he stands charged with offensive conduct contrary to Section 94(1) of the Penal Code . The prosecution closed its case, and the trial court subsequently placed the Applicant on his defence.
4. The core of this application rests on a deep-seated and asserted apprehension of bias. The Applicant states that he served as a key prosecution witness in Malindi EACC Case No. 2 of 2016 . In that anti-corruption matter, he testified directly against a senior member of the administrative staff, the Court Administrator at the Kaloleni Law Courts. That testimony culminated in the conviction and subsequent interdiction of the said court official from the Judiciary.
5. Crucially, the Applicant points out that, the trial magistrate who presided over his current criminal matter and placed him on his defence, served as the Head of Station at Kaloleni Law Courts during the period when the anti-corruption investigations and testimonies occurred.
6. Through his advocate, the Applicant contends that the entire institutional environment at Kaloleni Law Courts has become hostile toward him. He believes he has been collectively marked as an "enemy" of the station.
7. He claims this hostility manifested during the trial through undocumented physical complaints, unresolved reports of assaults, and a general lack of standard judicial protections from local duty bearers. Consequently, he maintains that no internal re-allocation of the file to another magistrate within the Kaloleni station can cure his reasonable apprehension of bias.
III. THE RESPONDENT’S CASE
7. The Respondent highlighted their duty to ensure that justice is not only done but is manifestly seen to be done. While maintaining that judicial officers are bound by their oath of office to administer justice without fear or favour, the state ultimately left the determination of the institutional transfer to the sound discretion of this Court.
IV. ISSUES FOR DETERMINATION
8. Having considered the pleadings, submissions, and documentation annexed to the application, this Court identifies two primary issues for determination:
a) Whether the Applicant has demonstrated a reasonable apprehension, on a balance of probabilities, that he will not receive a fair and impartial trial at Kaloleni Law Courts.
b) Whether it is expedient for the ends of justice to order a transfer of the file and a order for trial de novo .
V. THE LAW AND ANALYSIS
9. Section 81(1)(a) of the Criminal Procedure Code empowers the High Court to transfer a criminal case from a subordinate court to another court of competent jurisdiction whenever it appears that a fair and impartial trial cannot be accorded. This statutory framework aligns with Article 50(2) of the Constitution, which secures the right to a fair hearing as an absolute, non-derogable standard.
10. The threshold for granting an application for transfer has been firmly established in Kenyan jurisprudence across decades. In the foundational Court of Appeal case of Kinyatti v Republic (1984) KECA 78 (KLR) , Kneller JA, Chesoni, and Nyarangi Ag JJA laid down the definitive test:
"In deciding whether or not to transfer a case from one Court to another, the test is, whether the appellant had made out a clear case by discharging on the balance of probabilities the burden of showing that the apprehension in his mind that he may not have a fair and impartial trial is of a reasonable character."
11. This threshold ensures that the court does not act on the casual, whimsical, or hypersensitive whims of an accused person. As noted in Charles Koigi & 2 Others v Republic and modernised in Jamock Kamakya Mbuvi v Republic (2020) KEHC 1003 (KLR ) , the core metric is the reasonableness of the accused person's fear.
12. To understand who a "reasonable person" is within this context, this Court turns to the timeless and expressive analysis of Kuloba J. in J Kudwoli & Another v Eureka Educational and Training Consultants & 2 Others (1993) KEHC 131 (KLR) :
"A reasonable man is really a cool, level-headed and collected man who acts and reacts in appropriate perspective... He is simply a fair-minded person, and not one with a morbid or unduly suspicious mind... The test of reasonableness which guides and directs the court... requires invoking ordinary intelligence."
13. Applying this standard to the present facts, can a fair-minded person of ordinary intelligence look at the Applicant’s situation and conclude that his fear of bias is reasonable? This Court answers that question in the affirmative.
14. The Applicant did not just testify in an ordinary case; he testified against an administrative pillar of the very station where he is now being tried. His testimony directly disrupted the career and standing of a high-ranking colleague within that courthouse environment. Human experience dictate that such a scenario can easily breed systemic institutional friction. The fact that the trial magistrate was the Head of Station during these contentious events provides a clear, objective nexus for an ordinary observer to doubt whether the trial could proceed entirely unclouded by institutional history.
15. Justice must be pristine. It must remain above the reach of whispers and institutional biases. Even if the learned trial magistrate is entirely capable of separating past administrative history from her current judicial duties, the appearance of potential bias remains overwhelmingly heavy.
16. Where the public or an accused person has an objectively grounded basis to question the neutrality of a court station, the integrity of the judicial process demands immediate intervention.
VI. DISPOSITION
16. In the upshot, this Court finds that the Applicant has discharged his burden on a balance of probabilities. It is highly expedient for the ends of justice that this matter be removed from the environment of Kaloleni Law Courts.
17. To guarantee a flawless and transparent delivery of justice, the proceedings conducted under Kaloleni MCCR No. E189 of 2025 must be vacated entirely so that the new trial court can evaluate the evidence with fresh, uninfluenced eyes.
18. Accordingly, I make the following orders:
a) The application for the transfer of this matter is hereby allowed.
b) The proceedings already conducted in Kaloleni MCCR Case No. E189 of 2025 are hereby set aside in their entirety.
c) The case file shall be transferred forthwith from the Kaloleni Law Courts to the Chief Magistrate's Court at Malindi, with the physical transfer to be completed no later than 29 th September 2026.
d) The matter shall be mentioned before the Deputy Registrar on 1 st October 2026 for directions on the commencement of the trial de novo before a Magistrate of competent jurisdiction.
e) No orders as to Costs.
f) This file is hereby marked as closed.
19. Orders accordingly.
DATED AND DELIVERED AT MALINDI THIS …22 nd .DAY OF SEPTEMBER, 2026.
C.AKAIGWA
JUDGE