1. The Notice of Motion dated 16th March 2026 filed by the applicant is brought under Article 22, 23(1) (a) and (2), Article 49 (1) (h), Article 50 (2)(a) and Article 165 of the Constitution of Kenya 2010, Section 66, 71, 72 and Section 81 of the Criminal Procedure Code Cap 75, Section 6 of the Magistrates Courts Act. The same is supported by the affidavit of Yashim Butende sworn on 19/3/2025.
2. The Applicant prays for orders: -
a) Spent
b) That this Honourable Court be pleased to exercise its discretion and issue an order that pending the hearing of and determination of this motion the of Chief Magistrate Court Mombasa Cr. Case no. e188 of 2026 and Mombasa Cr. No. E120 of 2025 be and is hereby stayed.
c) That this Honourable Court do exercise its discretion and issue an order that the Chief Magistrate Court Mombasa Cr Case no. E188 of 2026 and Mombasa Cr. No. E120 of 2025 be transferred to a Court within Nairobi County to be heard and determined.
3. The applicant contends that on 13/2/2025 the applicant was charged before the Chief Magistrate Court at Mombasa in Criminal case number 120 of 2025 with three counts i.e Conspirancy to defraud contrary to Section 317 of the Penal Code, stealing by agent contrary to Section 283(b) of the Penal Code and handling stolen goods contrary to section 322(1)(2) of the Penal Code. On 16/5/2025 the matter was withdrawn under Section 87(a) of the Criminal Procedure Code.
4. The applicant stated that he was rearrested in Nairobi and on 28/1/2026 he was arraigned in Court and charged with the above-mentioned three counts under Mombasa Criminal case number E188 of 2026. The applicant was granted bail of ksh. 500,000/- with the condition that the passport be deposited in the Court.
5. The applicant's position is that the cause of action happened in Nairobi, the matter was reported in Nairobi and that both parties to the charge sheet, including the witnesses listed on the charge sheet, reside in Nairobi, where the purported incident occurred, hence the suit ought to have been instituted in Nairobi and not Mombasa.
6. I have considered the Applicant's Notice of Motion and the affidavit in support and the written submissions in support of the Notice of Motion application dated 16/3/2026. On 4/6/2026 the respondent confirmed that they have been served with the application and they sought for 7 days to file their response. The court directed the respondent to file her response and submissions within 7 days. The respondent is yet to file her response and submissions as at the time of writing this ruling.
7. The issue for determination herein is whether the application has merit and what orders this court should make.
8. In this case, it is not in dispute that, as per the charge sheet on record, the cause of action occurred at Kabansora Godown in Embakasi within the Republic of Kenya. It is also not in dispute that the applicant was arrested in Nairobi and transferred to Mombasa Port Police Station and the matter was instituted at Mombasa Law Courts.
9. The applicant’s prayer is to have the Chief Magistrate Court Mombasa Cr Case no. e188 of 2026 and Mombasa Cr. No. E120 of 2025 be transferred to a Court within Nairobi County to be heard and determined. The power of this Court to transfer criminal cases from one court to the other is conferred by Section 81 of the Criminal Procedure Code, Cap 75 Laws of Kenya. In exercise of this power, the High Court may change venue of the hearing of a case suo moto, or on application of a party interested or on the report of the lower court.
10. Instantly, the main ground cited for transfer of this case is that the applicant stays in Nairobi, the cause of action occurred at Kabansora Godown in Embakasi in Nairobi, and the intended prosecution witnesses also reside in Nairobi. The applicant also contends that he cannot travel from Nairobi to Mombasa for trial as neither does his medical condition permit him long travel nor does he have the financial muscle to take flights every time the matter comes up in Mombasa Law Courts. The applicant is apprehensive that he will not be accorded a fair trial if the matter is heard in Mombasa outside the territorial jurisdiction of the court where the purported offence occurred.
11. The Criminal Procedure Code under Section 71 establishes that, subject to the powers of transfer, every criminal offence must ordinarily be tried by a court operating within the local limits of whose jurisdiction the offence was committed.
12. Therefore, in the spirit of expediency and in the interest of justice I find that the application is meritorious.
13. The same is allowed as prayed, and this order and the trial court's files be transmitted to the Chief Magistrate Nairobi for further directions.
DELIVERED, DATED and SIGNED at MOMBASA on this 18th day of JUNE 2026.
Ruling delivered through Microsoft Teams Online Platform.
WENDY KAGENDO MICHENI
JUDGE
2. The Applicant prays for orders: -
a) Spent
b) That this Honourable Court be pleased to exercise its discretion and issue an order that pending the hearing of and determination of this motion the of Chief Magistrate Court Mombasa Cr. Case no. e188 of 2026 and Mombasa Cr. No. E120 of 2025 be and is hereby stayed.
c) That this Honourable Court do exercise its discretion and issue an order that the Chief Magistrate Court Mombasa Cr Case no. E188 of 2026 and Mombasa Cr. No. E120 of 2025 be transferred to a Court within Nairobi County to be heard and determined.
3. The applicant contends that on 13/2/2025 the applicant was charged before the Chief Magistrate Court at Mombasa in Criminal case number 120 of 2025 with three counts i.e Conspirancy to defraud contrary to Section 317 of the Penal Code, stealing by agent contrary to Section 283(b) of the Penal Code and handling stolen goods contrary to section 322(1)(2) of the Penal Code. On 16/5/2025 the matter was withdrawn under Section 87(a) of the Criminal Procedure Code.
4. The applicant stated that he was rearrested in Nairobi and on 28/1/2026 he was arraigned in Court and charged with the above-mentioned three counts under Mombasa Criminal case number E188 of 2026. The applicant was granted bail of ksh. 500,000/- with the condition that the passport be deposited in the Court.
5. The applicant's position is that the cause of action happened in Nairobi, the matter was reported in Nairobi and that both parties to the charge sheet, including the witnesses listed on the charge sheet, reside in Nairobi, where the purported incident occurred, hence the suit ought to have been instituted in Nairobi and not Mombasa.
6. I have considered the Applicant's Notice of Motion and the affidavit in support and the written submissions in support of the Notice of Motion application dated 16/3/2026. On 4/6/2026 the respondent confirmed that they have been served with the application and they sought for 7 days to file their response. The court directed the respondent to file her response and submissions within 7 days. The respondent is yet to file her response and submissions as at the time of writing this ruling.
7. The issue for determination herein is whether the application has merit and what orders this court should make.
8. In this case, it is not in dispute that, as per the charge sheet on record, the cause of action occurred at Kabansora Godown in Embakasi within the Republic of Kenya. It is also not in dispute that the applicant was arrested in Nairobi and transferred to Mombasa Port Police Station and the matter was instituted at Mombasa Law Courts.
9. The applicant’s prayer is to have the Chief Magistrate Court Mombasa Cr Case no. e188 of 2026 and Mombasa Cr. No. E120 of 2025 be transferred to a Court within Nairobi County to be heard and determined. The power of this Court to transfer criminal cases from one court to the other is conferred by Section 81 of the Criminal Procedure Code, Cap 75 Laws of Kenya. In exercise of this power, the High Court may change venue of the hearing of a case suo moto, or on application of a party interested or on the report of the lower court.
10. Instantly, the main ground cited for transfer of this case is that the applicant stays in Nairobi, the cause of action occurred at Kabansora Godown in Embakasi in Nairobi, and the intended prosecution witnesses also reside in Nairobi. The applicant also contends that he cannot travel from Nairobi to Mombasa for trial as neither does his medical condition permit him long travel nor does he have the financial muscle to take flights every time the matter comes up in Mombasa Law Courts. The applicant is apprehensive that he will not be accorded a fair trial if the matter is heard in Mombasa outside the territorial jurisdiction of the court where the purported offence occurred.
11. The Criminal Procedure Code under Section 71 establishes that, subject to the powers of transfer, every criminal offence must ordinarily be tried by a court operating within the local limits of whose jurisdiction the offence was committed.
12. Therefore, in the spirit of expediency and in the interest of justice I find that the application is meritorious.
13. The same is allowed as prayed, and this order and the trial court's files be transmitted to the Chief Magistrate Nairobi for further directions.
DELIVERED, DATED and SIGNED at MOMBASA on this 18th day of JUNE 2026.
Ruling delivered through Microsoft Teams Online Platform.
WENDY KAGENDO MICHENI
JUDGE