LABAN ATANDI AKUMA VS The Republic LABAN ATANDI AKUMA VS The Republic

Vide a letter dated 26.2.24, LABAN ATANDI AKUMA , hereinafter referred to as the complainant herein complained of his frustrations at Ogembo Chief Magistrate’s Court .

He said he is the complainant in Ogembo criminal case no. E030 of 2023 which took off in early 2023 but has stagnated. He said that neither him nor his witnesses have testified in the case as they have not been called to testify.

Also that in November 2023 he noticed the court prosecutor Mr Ketoo conducting prosecution of his case without the police file and without informing him of the court dates and he also noted disparity of dates in the court file and the police file and the Judiciary information Kiosk . He thereafter sought recusal of Hon Callistus Sindani (PM) who is the trial magistrate , his court assistant and the court prosecutor vide an application which he filed but no ruling has been delivered on the same todate and it is only the prosecutor who withdrew from the matter .

That on 19.1.24 his advocate Mr Mochiemo Gichana told the court that he had consulted with him to withdraw the application for recusal which was not true .

He said he reported his complaint to the head of station Ogembo court Hon Biwott vide a letter dated 22.1.2024 expressing his intention of lodging complaints against the trial court and his counsel to the judicial Service Commission and law Society of Kenya respectively . He later received a reply dated 26.1.2024 from the said head of station in which he advised ODPP to withdraw the matter from Ogembo court and file it afresh in Kisii Court.

He thereafter wrote to ODPP Ogembo seeking a mention date in the matter in vain , the matter had a hearing date on 1.5.24 which is a public holiday .

He accused the Trial magistrate of refusing to recuse himself from the matter despite several requests by him to do so as he seems to be having a vested interest in the matter .

Vide a letter dated 7.2.20 he wrote to ODPP Kisii Seeking their guidance in the matter but the same was not responded to.

By his letter dated 13.2.2024 , he complained to the judicial service commission against Hon Sindani and he was advised to write to this court . seeking orders of transfer of the suit from Ogembo Court to Kisii chief Magistrate’s court for hearing and determination.

Prosecution filed grounds of opposition dated in which they raised the grounds that :

a.The application is frivolous vexatious and an abuse of the process of the court.

b. the application is fatally defective and bad in law.

c. The applicant is forum shopping for seeking a transfer to Kisii law courts .

d. The advanced grounds do not meet the threshold for transfer of the case .

e. the application is bought in bd faith and is not in the interest of justice .

Learned prosecutor submitted that the law on transfer of criminal cases is premised on Section 81of the penal code which provides that ‘’

Section 81.

Power of High Court to change venue

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;

(iii)

that an accused person be committed for trial to itself.

in the cited case of John Brown Shilenje v Republic [1980] eKLR where it was held :

“the High court will always require some very strong grounds for

transferring a case from one judicial officer to another, if it is

stated that a fair and impartial inquiry or trial cannot be held by

him; especially when the statement implies a personal censure on

such officer.”

It was further submitted that in the case of Maina Kinyatti vs Republic (1984) EKLR the court held as follows:

“Where the apprehension in the mind of the accused that he may not have a fair and impartial trial is of a reasonable character, there, notwithstanding that there may be no real bias in the matter, the facts of incidents having taken place calculated to raise such reasonable apprehension ought to be a ground for allowing a transfer.”.

This court called for Ogembo Criminal case no. E030 of 2023I have perused criminal case no. E116 of 2024 consolidated with E521 of 2024 Ogembo and I note that the offence is threatening to kill contrary to Section 223(1) of the penal code and that accused are Elijah Makori and alias Chaplin and Samson Makori Mbaka and complaint is Laban Atandi Akuma the complainant herein . One witness who is the complainant testified in that case on 16.5.24 . there is a complaint by the applicant about the said case .

I have carefully considered the application the response and the submissions and the only issue arising for determination is whether a fair and impartial trial of the case in the lower court can be held at Ogembo Chief magistrate’s court and especially before Hon C. Sindani (Principal Magistrate )in the eye of a reasonable man .

There was indeed an application for recusal of Hon Sindani filed by the complainant herein and based on the grounds he has raised in his letter which I have mentioned hereinabove. The said application was not heard as it was withdrawn at the instance of counsel for the complainant . the complaint has also raised a complaint against the advocate with the law society of Kenya. He also had an issue with the prosecutor who has since recused himself from the said matter . Though the complaint against Hon Sindani is before the Judicial Service Commission this court has administrative jurisdiction to deal with the matter herein . The issues raised about the warrant of arrest and recording of dates are between complaint and prosecution and this court cannot comment on them as it does not have administrative jurisdiction over the Office of Director of Public Prosecutions (ODPP)which is independent as per Article 157 of the Constitution. In any event , it has emerged that Hon Sindani is in conduct of two cases involving the same accused and complainants and no E030 of 2023 has not proceeded and E116 of 2024 has proceeded and Hon Biwott Chief Magistrate indicated in his letter dated 26.1.24 that he is seized of a civil matter between the parties herein arising from the same cause of action as the said E030 of 2023 even without looking at the complaint raised by the complainant in E030 of 2023, it would be fair and just that another judicial officer hears Criminal case no. E030 of 2023 in the interest of justice .

I proceed to transfer this matter to the Chief Magistrate;s Court at Kisii for hearing and determination. Mention on 24.7.24 before Hon Stella Abuya C.M for re-allocation .

Delivered via teams platform in the presence of

Koima for respondent

CA : Oigo

Aplicant : Absent