1. This is a ruling on the application dated 12.2.25 seeking prayers that;
a.spent
b. The Lower Court matter Kisii Chief Magistrate’S Criminal case Number .E 1095 OF 2024 be recalled from the conduct of the Trial Magistrate Hon. B.O Omwansa for reallocation.
c. A different magistrate be appointed to maintain the conduct of the Lower Court case no. Kisii Chief Magistrate’S Criminal case Number .E 1095 OF 2024
d. The depositor of the Cash Bail for the absentee accused be summoned and ordered to secure the presence of that accused in Court.
e. Any other orders deemed fit and expedient in the circumstances.
2. The application is based on the affidavit of the Applicant, LABAN ATANDI AKUMA and on the grounds on the face of the application which he also deponed to in the supporting affidavit and further affidavit to wit ; that the Complainant/Applicant has come to understand that that Accused was released on a Cash Bail of Kenya Shillings Twenty Thousand Only (KSHS 20,000/=) on an unknown date and jumped bail . He also took issue with release of A2 on cash yet is jumped bail before .Also that the cash bail of Ksh. 20,000/= was not proportional to the sum of Ksh. 3,000,000/= in the charge sheet The Complainant/Applicant suspects that Accused colluded with the trial Magistrate .the prosecutor and defence counsel. Also that he lodged an application for recusal of the trial court on 6.3.25 but no directions but no directions nor ruling was issued on the application and the trial court proceeded to ignore the application on record noting that the case belongs to the prosecution and as such he did not have a right to address the court. Further that the case was fixed for hearing on 22.5.25 without warrants for 2nd accused. The Complainant/Applicant decried that the conduct of the Trial Magistrate has eroded his confidence in the Trial Court’s impartiality and that he lacks the belief that he shall have justice done in the instant matter. The Complainant/Applicant further told this court that Counsel Caleb Onguti,acting for accused herein also represents the accused in a parallel civil suit OGEMBO MCCC NO. E127 OF 2023 wherein he has been taking the Honourable in wild goose chase with Applications for Stay of execution of the decree in OGEMBO MCCC NO. E127 OF 2023 on guise of proceeding with an appeal which is yet to be lodged.He said that the grant of a stay of execution has already been overtaken by events as far as one of the accused, Jared Ombati,was serving civil jail He said he had moved the court expeditiously and decried that he had suffered numerous set backs in his pursuit of justice in this case. . further that no prejudice would be occasioned to respondents if the orders sought are granted.
.
3. The respondents herein ,the prosecution filed grounds of opposition stating that the application is frivolous, vexatious and an abuse of court process .the application is meant to frustrate and prejudice the case.that the applicant herein is seeking forum shopping to have a transfer of case to a specific station the grounds does not meet the threshold for the orders sought .he has not demonstrated the conflict of interest ,the delays and numerous setbacks faced is due to the applicant actions and that it is made in bad faith.
submissions
4. .In his submissions the applicant stated that he will not get justice before Hon Omwansa further aver on his apprehension on not being able to get justice in the trial court.
5. Prosecution submitted that the initial transfer order was made at the instance of the applicant and he now wants another transfer and that he cannot allege delay in the circumstances
Issues for determination
6. I have considered the application herein ,the supporting affidavit , the Respondent grounds of opposition, the applicant submission, the issue for determination are:
a. Whether the Trial magistrate is to blame for the delay of this matter.
b. Whether the triela magistrate erred in issuing cash bail without knowledge of the applicant .
c. Whether the complaint that The Learned Trial Magistrate ignored the complainant’s application for recusal on 6.3.25 .
d. Whether no orders were made on arrest of A2 on 22.5.25
e.
f. Whether the applicant has met the threshold for grant of orders sought .
Analysis and determination.
7. On whether the trial magistrate is to blame for the delay of the matter , the back ground of this matter is that it was first registered in the Chief Magistrate’s court at Ogembo on 17.1. 23.The the complainant later applied to this court to have the same transferred on allegations that the trial Magistrate and the court prosecutor were biased . The case was transferred to Kisii Chief magistrates court vide ruling of this court dated 11.7.24 .On 31.7.24 accused no. 1 and 3 appeared before Hon Omwansa for re-allocation pursuant to the said ruling but accused no.2 (herein after referred to as A2 ) was absent and hence a warrant of arrest was issued against him . The matters was mentioned again on 15.8.24, but he was still absent and the warrants were extended and summons were issued to surety. On 19.8.24 the matter was mentioned before Hon Kugwa and A2 was still absent .On 4.9.24, 26.9.24 ,16,10,24 the matter was mentioned before Hon Omwansa but A2 was still absent . A2 appeared in court on 31.10.24 when he said that he had been unwell and the warrant of arrest against him was lifted and he was re-admitted to cash bail of Ksh .20,000/=. Hearing proceeded that day when complainant testified. A2 appeared in court on 14.11.24 and 28.11.24 for mention. On 11.12.24 the matter came up for hearing when prosecution closed its case. The matter was fixed for submissions on 11.12.24 . The Compliant /applicant filed another application dated 30.12.24 before this court in this court seeking that the prosecution ‘s case be re-opened as it was closed without hearing of crucial witnesses and the same was allowed on 30.1.25. The delay of the case cannot thus be said to be on the part of the court .
8. On the allegation that cash bail was issued without the knowledge of complainant , the purpose of bond is to ensure that an accused person comes to court and granting and variation of bond terms before and during trial is at the discretion of the trial court . On 31.10.24 when the cash bail was granted the prosecutor Mr Masake was in court representing the state and complainant in this case. A2 subsequently attended the court sessions . There is no indication that A2 was arrested in this matter following the warrant of arrest issued by the court. It was the duty of the state to ensure that the warrant is executed . Complainant also had a duty to liaise with the state for execution of the said warrant . I do not see any wrong doing on the part of the trial court by varying bond terms from surety to cash bail after accused no. 2 presented himself to court and saying he was unable to attend court before for being unwell . In any event it is not shown that the accused were informed on the date of 31.7.24 which was set by this court upon transferring the mater from Ogembo law courts. The trial magistrate acted within his discretion in granting the cash bail .
9. On the complaint that The Learned Trial Magistrate ignored the complainant’s application for recusal on 6.3.25, no such application has been annexed to this application and there is no record of complainant raising the same .
10. On whether no orders were made on arrest of A2 on 22.5.25. the record for that date indicates that A1 and A3 were present. . it is not clear whether Accused no3 was present . that was an omission on the part of the learned trial magistrate as he ought to have marked accused 2 as present or absent and in case he was absent then he ought to have extended the warrant of arrest issued on 6.3.25. However the said mistake is minor and does not go to the root of the conduct of the Magistrate as the Magistrate stayed the proceedings awaiting the directions of this court . .
11.On whether the application meets the threshold for transfer to another another magistrate for hearing and determination, this was the prayer of the applicant. Section 81 (1) (a) CPC provides that ;- Power of High Court to change venue
(1) 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;
It is thus upon the applicant to establish that fair an impartial trial cannot proceed before Hon Omwansa . Judicial conduct is guided by the Bangalore Principles of Judicial Code of Conduct which have been domesticated in Kenya in the Judicial Service (Code of Conduct and Ethics) Regulations 2020. Regulation 21 on recusal which provides as follows:
21.(1) A judge may recuse himself or herself in any proceedings in which his or her impartiality might reasonably be questioned where the judge;
(a)Is a party to the proceedings;
(b)Was, or is a material witness in the matter in controversy;
(c)Has personal knowledge of disputed evidentiary facts concerning the proceedings;
(d)Has actual bias or prejudice concerning a party;
(e)Has a personal interest or is in a relationship with a person who has a personal interest in the outcome of the matter;
(f)Had previously acted as a counsel for a party in the same matter;
(g)Is precluded from hearing the matter on account of any other sufficient reason; or
(h)A member of the judge’s family has economic or other interest in the outcome of the matter in question.
12. In the case of Republic v Assa Kibagendi Nyakundi [2022] eKLR: citing the decisions in Charity Muthoni Gitabi Versus Joseph Gichangi Gitabi [2017] eKLR, and Kalpana H. Rawal Versus Judicial Service Commission and 2 others [2016] eKLR, where the Court of Appeal held;
“An application for recusal of a Judge is a necessary evil. On the one hand, it calls into question the fairness of a judge who has sworn to do justice impartially, in accordance with the constitution without any fear, favour bias, affection, ill will, prejudice, political, religion, or other influence. In such applications, the impartiality of the Judge is called into question and his independence is impugned. On the other hand, the oath of office notwithstanding, the Judge is all too human, and above all the Constitution does guarantee all litigants the right to a fair hearing by an independent and impartial Judge. When reasonable basis for requesting a Judge to recuse himself or herself exists, the application has to be made, unpleasant as it may be. That is the lesser of the 2 evils. The alternative is to risk. Violating a cardinal guarantee of the constitution, namely the right to a fair trial, upon which the entire judicial edifice is built. Allowing a Judge who is reasonably suspected of bias to sit in a matter would be in violation of the constitutional guarantee of a trial by independent and impartial court …..”
13.The the history of the case is clear that it moved from Ogembo to Kisii Chief Magistrate’s court . The lower court herein has a duty to sit and expeditious disposal of cases in now enshrined under Article 159 (2) (b) of the Constitution. The applicant seems to be focused on arrest of Accused no. 2 than proceeding with this case. He also needs to separate the civil matters from this case and let the court proceed to hear this case. There is no evidence that the trial Magistrate breached the judicial code of conduct . I do not find sufficient grounds under Section 81 (1) (a) CPC to transfer this case to another Magistrates court . . The history of the case is clear that it moved from Ogembo to Kisii Chief Magistrates court . The lower court herein has a duty to sit and expeditious disposal of cases in now enshrined under Article 159 (2) (b) of the Constitution. The applicant seems to be focused on arrest of Accused no. 2 than proceeding with this case. He also needs to separate the civil matters from this case and let the court proceed to hear this case. This application dated 12.2.25 is hereby dismissed .
13. I direct that Hon Omwansa to proceed with the matter expeditiously to it’s logical conclusion
14. Mention on 12.8.25 before Hon Omwansa who is currently on leave for further orders .
15. File is closed .
T.A ODERA
JUDGE
15.7.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM IN THE PRESNCE OF THE APPLICANT , MR KOIMA FOR PRSECUTION AND CA: KIPCHIRCHIR
a.spent
b. The Lower Court matter Kisii Chief Magistrate’S Criminal case Number .E 1095 OF 2024 be recalled from the conduct of the Trial Magistrate Hon. B.O Omwansa for reallocation.
c. A different magistrate be appointed to maintain the conduct of the Lower Court case no. Kisii Chief Magistrate’S Criminal case Number .E 1095 OF 2024
d. The depositor of the Cash Bail for the absentee accused be summoned and ordered to secure the presence of that accused in Court.
e. Any other orders deemed fit and expedient in the circumstances.
2. The application is based on the affidavit of the Applicant, LABAN ATANDI AKUMA and on the grounds on the face of the application which he also deponed to in the supporting affidavit and further affidavit to wit ; that the Complainant/Applicant has come to understand that that Accused was released on a Cash Bail of Kenya Shillings Twenty Thousand Only (KSHS 20,000/=) on an unknown date and jumped bail . He also took issue with release of A2 on cash yet is jumped bail before .Also that the cash bail of Ksh. 20,000/= was not proportional to the sum of Ksh. 3,000,000/= in the charge sheet The Complainant/Applicant suspects that Accused colluded with the trial Magistrate .the prosecutor and defence counsel. Also that he lodged an application for recusal of the trial court on 6.3.25 but no directions but no directions nor ruling was issued on the application and the trial court proceeded to ignore the application on record noting that the case belongs to the prosecution and as such he did not have a right to address the court. Further that the case was fixed for hearing on 22.5.25 without warrants for 2nd accused. The Complainant/Applicant decried that the conduct of the Trial Magistrate has eroded his confidence in the Trial Court’s impartiality and that he lacks the belief that he shall have justice done in the instant matter. The Complainant/Applicant further told this court that Counsel Caleb Onguti,acting for accused herein also represents the accused in a parallel civil suit OGEMBO MCCC NO. E127 OF 2023 wherein he has been taking the Honourable in wild goose chase with Applications for Stay of execution of the decree in OGEMBO MCCC NO. E127 OF 2023 on guise of proceeding with an appeal which is yet to be lodged.He said that the grant of a stay of execution has already been overtaken by events as far as one of the accused, Jared Ombati,was serving civil jail He said he had moved the court expeditiously and decried that he had suffered numerous set backs in his pursuit of justice in this case. . further that no prejudice would be occasioned to respondents if the orders sought are granted.
.
3. The respondents herein ,the prosecution filed grounds of opposition stating that the application is frivolous, vexatious and an abuse of court process .the application is meant to frustrate and prejudice the case.that the applicant herein is seeking forum shopping to have a transfer of case to a specific station the grounds does not meet the threshold for the orders sought .he has not demonstrated the conflict of interest ,the delays and numerous setbacks faced is due to the applicant actions and that it is made in bad faith.
submissions
4. .In his submissions the applicant stated that he will not get justice before Hon Omwansa further aver on his apprehension on not being able to get justice in the trial court.
5. Prosecution submitted that the initial transfer order was made at the instance of the applicant and he now wants another transfer and that he cannot allege delay in the circumstances
Issues for determination
6. I have considered the application herein ,the supporting affidavit , the Respondent grounds of opposition, the applicant submission, the issue for determination are:
a. Whether the Trial magistrate is to blame for the delay of this matter.
b. Whether the triela magistrate erred in issuing cash bail without knowledge of the applicant .
c. Whether the complaint that The Learned Trial Magistrate ignored the complainant’s application for recusal on 6.3.25 .
d. Whether no orders were made on arrest of A2 on 22.5.25
e.
f. Whether the applicant has met the threshold for grant of orders sought .
Analysis and determination.
7. On whether the trial magistrate is to blame for the delay of the matter , the back ground of this matter is that it was first registered in the Chief Magistrate’s court at Ogembo on 17.1. 23.The the complainant later applied to this court to have the same transferred on allegations that the trial Magistrate and the court prosecutor were biased . The case was transferred to Kisii Chief magistrates court vide ruling of this court dated 11.7.24 .On 31.7.24 accused no. 1 and 3 appeared before Hon Omwansa for re-allocation pursuant to the said ruling but accused no.2 (herein after referred to as A2 ) was absent and hence a warrant of arrest was issued against him . The matters was mentioned again on 15.8.24, but he was still absent and the warrants were extended and summons were issued to surety. On 19.8.24 the matter was mentioned before Hon Kugwa and A2 was still absent .On 4.9.24, 26.9.24 ,16,10,24 the matter was mentioned before Hon Omwansa but A2 was still absent . A2 appeared in court on 31.10.24 when he said that he had been unwell and the warrant of arrest against him was lifted and he was re-admitted to cash bail of Ksh .20,000/=. Hearing proceeded that day when complainant testified. A2 appeared in court on 14.11.24 and 28.11.24 for mention. On 11.12.24 the matter came up for hearing when prosecution closed its case. The matter was fixed for submissions on 11.12.24 . The Compliant /applicant filed another application dated 30.12.24 before this court in this court seeking that the prosecution ‘s case be re-opened as it was closed without hearing of crucial witnesses and the same was allowed on 30.1.25. The delay of the case cannot thus be said to be on the part of the court .
8. On the allegation that cash bail was issued without the knowledge of complainant , the purpose of bond is to ensure that an accused person comes to court and granting and variation of bond terms before and during trial is at the discretion of the trial court . On 31.10.24 when the cash bail was granted the prosecutor Mr Masake was in court representing the state and complainant in this case. A2 subsequently attended the court sessions . There is no indication that A2 was arrested in this matter following the warrant of arrest issued by the court. It was the duty of the state to ensure that the warrant is executed . Complainant also had a duty to liaise with the state for execution of the said warrant . I do not see any wrong doing on the part of the trial court by varying bond terms from surety to cash bail after accused no. 2 presented himself to court and saying he was unable to attend court before for being unwell . In any event it is not shown that the accused were informed on the date of 31.7.24 which was set by this court upon transferring the mater from Ogembo law courts. The trial magistrate acted within his discretion in granting the cash bail .
9. On the complaint that The Learned Trial Magistrate ignored the complainant’s application for recusal on 6.3.25, no such application has been annexed to this application and there is no record of complainant raising the same .
10. On whether no orders were made on arrest of A2 on 22.5.25. the record for that date indicates that A1 and A3 were present. . it is not clear whether Accused no3 was present . that was an omission on the part of the learned trial magistrate as he ought to have marked accused 2 as present or absent and in case he was absent then he ought to have extended the warrant of arrest issued on 6.3.25. However the said mistake is minor and does not go to the root of the conduct of the Magistrate as the Magistrate stayed the proceedings awaiting the directions of this court . .
11.On whether the application meets the threshold for transfer to another another magistrate for hearing and determination, this was the prayer of the applicant. Section 81 (1) (a) CPC provides that ;- Power of High Court to change venue
(1) 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;
It is thus upon the applicant to establish that fair an impartial trial cannot proceed before Hon Omwansa . Judicial conduct is guided by the Bangalore Principles of Judicial Code of Conduct which have been domesticated in Kenya in the Judicial Service (Code of Conduct and Ethics) Regulations 2020. Regulation 21 on recusal which provides as follows:
21.(1) A judge may recuse himself or herself in any proceedings in which his or her impartiality might reasonably be questioned where the judge;
(a)Is a party to the proceedings;
(b)Was, or is a material witness in the matter in controversy;
(c)Has personal knowledge of disputed evidentiary facts concerning the proceedings;
(d)Has actual bias or prejudice concerning a party;
(e)Has a personal interest or is in a relationship with a person who has a personal interest in the outcome of the matter;
(f)Had previously acted as a counsel for a party in the same matter;
(g)Is precluded from hearing the matter on account of any other sufficient reason; or
(h)A member of the judge’s family has economic or other interest in the outcome of the matter in question.
12. In the case of Republic v Assa Kibagendi Nyakundi [2022] eKLR: citing the decisions in Charity Muthoni Gitabi Versus Joseph Gichangi Gitabi [2017] eKLR, and Kalpana H. Rawal Versus Judicial Service Commission and 2 others [2016] eKLR, where the Court of Appeal held;
“An application for recusal of a Judge is a necessary evil. On the one hand, it calls into question the fairness of a judge who has sworn to do justice impartially, in accordance with the constitution without any fear, favour bias, affection, ill will, prejudice, political, religion, or other influence. In such applications, the impartiality of the Judge is called into question and his independence is impugned. On the other hand, the oath of office notwithstanding, the Judge is all too human, and above all the Constitution does guarantee all litigants the right to a fair hearing by an independent and impartial Judge. When reasonable basis for requesting a Judge to recuse himself or herself exists, the application has to be made, unpleasant as it may be. That is the lesser of the 2 evils. The alternative is to risk. Violating a cardinal guarantee of the constitution, namely the right to a fair trial, upon which the entire judicial edifice is built. Allowing a Judge who is reasonably suspected of bias to sit in a matter would be in violation of the constitutional guarantee of a trial by independent and impartial court …..”
13.The the history of the case is clear that it moved from Ogembo to Kisii Chief Magistrate’s court . The lower court herein has a duty to sit and expeditious disposal of cases in now enshrined under Article 159 (2) (b) of the Constitution. The applicant seems to be focused on arrest of Accused no. 2 than proceeding with this case. He also needs to separate the civil matters from this case and let the court proceed to hear this case. There is no evidence that the trial Magistrate breached the judicial code of conduct . I do not find sufficient grounds under Section 81 (1) (a) CPC to transfer this case to another Magistrates court . . The history of the case is clear that it moved from Ogembo to Kisii Chief Magistrates court . The lower court herein has a duty to sit and expeditious disposal of cases in now enshrined under Article 159 (2) (b) of the Constitution. The applicant seems to be focused on arrest of Accused no. 2 than proceeding with this case. He also needs to separate the civil matters from this case and let the court proceed to hear this case. This application dated 12.2.25 is hereby dismissed .
13. I direct that Hon Omwansa to proceed with the matter expeditiously to it’s logical conclusion
14. Mention on 12.8.25 before Hon Omwansa who is currently on leave for further orders .
15. File is closed .
T.A ODERA
JUDGE
15.7.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM IN THE PRESNCE OF THE APPLICANT , MR KOIMA FOR PRSECUTION AND CA: KIPCHIRCHIR