1. By an Application dated 4.12.24, the Applicant seeks the following orders:
1. Spent.
2. Spent.
3. THAT this Honourable court do order a stay or suspension of the orders issued on the 26th November 2024 by Hon. James Mwaniki-in Chief Magistrate in Kilifi CMCC NO. E906 of 2024 pending the hearing and determination of the Applicant's application for revision of the orders issued on the 26th November 2024.
4. This revision be allowed and the orders made by Honourable James Mwaniki learned Chief magistrate on the 26th November 2024 be set aside and reversed.
5. That owing to the non- impartiality of the Honourable Chief Magistrate, Hon James Mwaniki as evidenced in the orders and Ruling dated 26th November 2024, court do order that future proceedings in the Criminal matter be transferred Malindi Chief Magistrate’s Court where the subject property is situate.
6. THAT this Honourable court be pleased to grant such further orders as it deems just and expedient in the circumstances.
2. The grounds upon which the Application is premised are that the Applicant represented Gala Holdings Limited (GHL) in a conveyancing transaction in respect of its property known as Plot No. 637, Mambrui; that one Daniel Ricci, holder of a power of attorney from Gala executed a sale agreement dated 29.9.23 with Mambrui Beach Gardens (MBG) through its chairman Dr Peter Mureithi, Secretary, Maria Baraga and Treasurer, Beatrice Charalampopoulos; that at the execution of the agreement, the purchasers presented to Daniel Ricci a letter dated 23.5.23 from Urithi Housing Cooperative Society Limited (Urithi) authorizing them to sign and transact on all matters pertaining to the purchase of the said property; that under the terms of the agreement, Urithi had earlier paid a sum Kshs. 16,200,000/=through Onchangu Kemunto and Company Advocates and the same was acknowledged in the agreement; that Kshs.5 million was paid to Daniel Ricci on signing of the agreement; that Kshs. 20 million was to be paid to him after 90 days after the signing of the agreement which was paid albeit after the period stipulated in the agreement; that Kshs. 40 million was to be paid in the next 120 days after the payment of Kshs. 20 million which was to be on or before the 10.4.24, which has not been paid to date; that the balance of Kshs. 53,800,000/= was to be paid after successful transfer of the property to the purchasers; that transfer of the property has not been effected because no further payments were received from purchasers after the payment of the Kshs. 20million.
3. The Applicant went on to state that as at 3.10.24, the purchase price had not been paid as per the sale agreement which prompted the seller to issue notice to complete the payment; that by a letter dated 25.9.24, Kirwanda and Associates Advocates asked for the original documents for the property which the Applicant by a letter dated 26.9.24 declined to release as it was contrary to the terms of the agreement.
4. Further, that by a letter dated 4.11.24 from the County Criminal Investigations officers, Daniel Ricci was requested to attend their offices in Kilifi on 14.11.24, on a complaint of obtaining money by false pretences by Ravina Beach Gardens Limited, a party unknown to him; that being out of the country on medical grounds, he sent his Advocates to convey that message to the investigating authorities; that without any notice, he was charged in court in Criminal Case No. E906 of 2024 - Republic =Versus= Daniel Ricci where plea or any statement is yet to be taken.
5. The Applicant further stated that after charging Daniel Ricci, the same court summoned the Applicant to hand over the original documents for the property, for forensic examination; that he appeared in court on the 25.11.24 where he objected to the giving of the said documents on sound legal grounds; that by a ruling of the court delivered with lightning speed on 26.11.24, the court directed the Applicant to surrender to the investigating officers, the original certificate of title for the property and the and original power of attorney between GHL Limited and Daniel Ricci for forensic examination.
6. The Applicant asserts that the court and the prosecution are being used by an unknown complainant with no agreement with Daniel Ricci. Further, that Daniel Ricci had not taken any plea in the matter and the Applicant had not been summoned to record any statement by the investigating authority. That the orders were given on an oral application by the prosecution which did not show any basis for the grant of the same. Further that the orders are prejudicial to the Applicant and Daniel Ricci, whose property is likely to be stolen by an unknown complainant through carefully choreographed criminal processes aided and abetted through the trial court and the Director of Criminal Investigations, Kilifi; that the prosecution is being illegally used to settle a purely civil dispute which is illegal. The Applicant contended that having accepted the charges against Daniel Ricci, the trial court could not issue orders that are investigative in nature over the subject matter before it. Further, that by its actions, the court thus stopped being impartial. The Applicant urged that the orders sought be granted.
7. When the matter came up on 14.1.25, prayer 3 of the Application was granted after the Respondent’s counsel informed the Court that they had no objection to the grant of the same. What is now left for determination of the Court is whether the orders of 26.11.24 should be set aside and whether the matter should be transferred to Malindi Chief Magistrates’ Court for hearing and determination.
8. The Interested Parties were later joined in these proceedings vide a ruling of this Court dated 14.3.25.
9. In his replying affidavit sworn on 27.3.25, Dr Peter Mureithi, the 1st Interested Party denied the allegations by the Applicant. He stated that the Applicant did not act for GHL but for him and others as purchasers; that the purchase price was paid in full; that the Application is intended to delay enforcement of the warrant of arrest issued against the Applicant for contempt of court; that the Applicant ought to have filed an appeal against the order after conviction instead of the revision.
10. It was further averred that completion documents, namely the original Certificate of Title and the said power of attorney were released to the Applicant; that completion was impeded by Daniel Ricci who demanded to be paid extra sums of money to enable him sign the transfer forms; that after he filed a complaint, the investigating officer through the Respondent sought to carry out forensic analysis of the completion documents and made an oral application to that effect; that summons were issued to the Applicant for production of the same; that the trial court granted the Applicant’s request for a few hours to deliver the documents to the investigating officer; that the Applicant failed to deliver the said documents and did not file any application to object or set aside the order and summons; that he did not raise any objection that plea having been deferred he could not avail the documents; that in any event, Daniel Ricci has already taken plea.
11. Dr. Peter Mureithi contends that it is Daniel Ricci and the Applicant who are conspiring to get the land without paying and creating confusion to conceal the fact that they have not paid a coin for the land they claim; that the Applicant’s allegations regarding an “unknown complainant” is false and an act of perjury; that the complainants are himself and Ravina Beach Gardens Ltd who are known to the Applicant and for whom he acted.
12. It was further averred that the Applicant disobeyed a court order of which he was aware and the court held him in contempt; that the Applicant has chosen to obstruct the course of justice and he cannot hide under Advocate-Client relationship privileges to defy a valid court order. He urged that the Application be dismissed.
13. The 2nd Interested Party opposed the Application vide a replying affidavit sworn on 27.3.25 by its director, Dr. Peter Mureithi. His averments are similar in substance to those in his own replying affidavit sworn on even date. There is therefore no need to regurgitate the same.
14. In his Application, the Applicant has invoked the revision power of this Court which is an aspect of the supervisory jurisdiction of the Court. The revision power is strictly limited in scope to correcting legal errors, procedural irregularities, or jurisdictional defects in proceedings and orders in lower courts. It does not call for a full re-hearing of a case.
15. The Constitution has conferred upon this Court supervisory jurisdiction over subordinate courts. Article 165(6) and (7) provides as follows:
(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.
16. In exercise of this jurisdiction, this Court is empowered to call for the record of proceedings in subordinate courts, and make and give appropriate orders and directions as it deems necessary to ensure the fair administration of justice.
17. Section 362 of the Criminal Procedure Code (CPC) provides:
The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.
18. Upon obtaining and examining the record of criminal proceedings in subordinate courts, Section 364 of the CPC stipulates what the Court may do, as follows:
(1) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—
(a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;
(b) in the case of any other order other than an order of acquittal, alter or reverse the order.
(c) …
19. The purpose of the revisional jurisdiction of this Court is to correct any irregularities, improprieties or illegalities that are clearly apparent in proceedings or orders given in a subordinate court and give appropriate directions. Where the Court finds, after examining the record of proceedings before a subordinate court that the same are wanting in correctness or that there is illegality or impropriety of a finding, order or sentence, the Court may by dint of the revision powers conferred upon it by Section 364 of the CPC, enhance the sentence or alter or reverse the order except that of an acquittal.
20. In Joseph Nduvi Mbuvi v Republic [2019] eKLR, Odunga, J. (as he then was) considered the import of the revision jurisdiction of this Court and stated:
In my considered view, the object of the revisional jurisdiction of the High Court is to enable the High Court, in appropriate cases, whether during the pendency of the proceedings in the subordinate court or at the conclusion of the proceedings to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still ongoing, should be proceeded with. In other words, the High Court’s revisionary jurisdiction includes ensuring that where the proceeding in the lower court has been legally derailed, necessary directions are given to bring the same back on track so that the trial proceeds towards its intended destination without hitches. Not only is the jurisdiction exercisable where the subordinate court has made a finding, sentence or order but goes on to state that it is also exercisable to determine the regularity of any proceedings of any such subordinate court as well.
21. I have called for and examined the record in the proceedings in question with a view to satisfying myself of the correctness legality or propriety of the order complained of, dated 26.11.24. The said order is reproduced below:
1. THAT the original documents certificate of title for portion of land no. 637-Mambrui and original power of attorney dated 7.6.2019 between Gala HOLDING LIMITED and DANIEL RICCI be released by Advocate MAURICE MUTETI KILONZO to the DCI Kilifi through the Investigating Officer in the case.
2. THAT the documents be used only for purpose of forensic examination.
3. THAT the Investigating Officer will report back to court upon completion of the forensic analysis for court’s further directions in regard to disposal/custody of the documents.
22. The circumstances herein are that the impugned order was made against the Applicant in Kilifi Criminal Case No. MCCR E906 of 2024 Republic v Daniel Ricci. The Applicant is not a party in the criminal case. It is not disputed that the order was made pursuant to an oral application made by the prosecution, the Respondent herein.
23. Article 47 of the Constitution guarantees to every person the right to fair administrative action while Article 50 guarantees to every person the right to a fair hearing. A key aspect of these rights is the right to be heard and not be condemned unheard, more so where adverse orders are made against a person.
24. The legal imperative of hearing a person who is likely to be adversely affected by a decision before the decision is made cannot be overemphasized. In the case of JMK v MWM & another [2015] eKLR the Court of Appeal observed:
The courts of this land have been consistent on the importance of observing the rules of natural justice and in particular hearing a person who is likely to be adversely affected by a decision before the decision is made.
25. The fact that the order was made against the Applicant yet no formal application was made, to which he could respond, offends all notions of justice. I am guided in this regard by the decision in the case of Mbaki & Others v. Macharia & Another [2005] 2 EA 206, at page 210, where the Court of Appeal stated as follows:
The right to be heard is a valued right. It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard.
26. It is trite that in a criminal case, the burden of proof lies with the Prosecution throughout the trial and that burden does not shift. Accordingly, the trial court must remain impartial and should not descend into the arena by acting as an investigative arm or assist the prosecution in gathering evidence against an accused person. Indeed, in Ogot v Keroka Highway Service Station [2024] KECA 1499 (KLR), the Court of Appeal stated that the court cannot go into a fishing expedition looking for evidence, the court should not be seen to be assisting either side in the dispute.
27. By directing the Applicant to hand over to the investigating officer for forensic examination, the documents which were to be used in the criminal case against Daniel Ricci, the learned Magistrate clearly descended in the arena. The order in effect amounts to the court assisting the prosecution to collect evidence for the purpose of mounting the prosecution against Daniel Ricci in the same court. The learned Magistrate thus ceased to be an independent arbiter in the matter. I accordingly find that the impugned order being manifestly irregular and illegal, cannot stand. It is therefore necessary for this Court to give appropriate directions to ensure the fair administration of justice.
28. I now turn to the challenge to the territorial jurisdiction of the trial court.
29. Section 71 of the CPC makes provision for ordinary place of inquiry and trial as follows:
Subject to the provisions of section 69, and to the powers of transfer conferred by sections 79 and 81, every offence shall ordinarily be tried by a court within the local limits of whose jurisdiction it was committed, or within the local limits of whose jurisdiction the accused was apprehended, or is in custody on a charge for the offence, or has appeared in answer to a summons lawfully issued charging the offence.
30. In casu, the exhibited charge sheet indicates that the offences with which Daniel Ricci is charged were allegedly committed in Malindi Township. By dint of Section 71 of the CPC, Daniel Ricci ought to have been charged in Malindi Chief Magistrates Court within the local limits of whose jurisdiction, the offence was allegedly committed.
31. Section 81 of the CPC confers upon this Court the power to change the venue of a trial. In exercise of this power, the Court may act on the report of the lower court, or on the application of a party interested, or on its own initiative. Accordingly, having noted that the alleged offence is indicated to have been committed in Malindi, the Court finds the institution of the criminal case against Daniel Ricci in Kilifi, is unjustified. It is therefore expedient for the ends of justice, to transfer the criminal case to Malindi Law Courts.
32. In light of the foregoing, the Court finds that the Application is merited and is allowed on the following terms:
i) The orders made by the Hon. Chief Magistrate on 26.11.24 in Kilifi CMCC No. E906 of 2024 are set aside.
ii) Kilifi Chief Magistrate’s Court Criminal Case No. E906 of 2024 is transferred to Malindi Chief Magistrate’s Court for hearing and determination.
DATED SIGNED and DELIVERED in MALINDI this 18th day of September 2026
1. Spent.
2. Spent.
3. THAT this Honourable court do order a stay or suspension of the orders issued on the 26th November 2024 by Hon. James Mwaniki-in Chief Magistrate in Kilifi CMCC NO. E906 of 2024 pending the hearing and determination of the Applicant's application for revision of the orders issued on the 26th November 2024.
4. This revision be allowed and the orders made by Honourable James Mwaniki learned Chief magistrate on the 26th November 2024 be set aside and reversed.
5. That owing to the non- impartiality of the Honourable Chief Magistrate, Hon James Mwaniki as evidenced in the orders and Ruling dated 26th November 2024, court do order that future proceedings in the Criminal matter be transferred Malindi Chief Magistrate’s Court where the subject property is situate.
6. THAT this Honourable court be pleased to grant such further orders as it deems just and expedient in the circumstances.
2. The grounds upon which the Application is premised are that the Applicant represented Gala Holdings Limited (GHL) in a conveyancing transaction in respect of its property known as Plot No. 637, Mambrui; that one Daniel Ricci, holder of a power of attorney from Gala executed a sale agreement dated 29.9.23 with Mambrui Beach Gardens (MBG) through its chairman Dr Peter Mureithi, Secretary, Maria Baraga and Treasurer, Beatrice Charalampopoulos; that at the execution of the agreement, the purchasers presented to Daniel Ricci a letter dated 23.5.23 from Urithi Housing Cooperative Society Limited (Urithi) authorizing them to sign and transact on all matters pertaining to the purchase of the said property; that under the terms of the agreement, Urithi had earlier paid a sum Kshs. 16,200,000/=through Onchangu Kemunto and Company Advocates and the same was acknowledged in the agreement; that Kshs.5 million was paid to Daniel Ricci on signing of the agreement; that Kshs. 20 million was to be paid to him after 90 days after the signing of the agreement which was paid albeit after the period stipulated in the agreement; that Kshs. 40 million was to be paid in the next 120 days after the payment of Kshs. 20 million which was to be on or before the 10.4.24, which has not been paid to date; that the balance of Kshs. 53,800,000/= was to be paid after successful transfer of the property to the purchasers; that transfer of the property has not been effected because no further payments were received from purchasers after the payment of the Kshs. 20million.
3. The Applicant went on to state that as at 3.10.24, the purchase price had not been paid as per the sale agreement which prompted the seller to issue notice to complete the payment; that by a letter dated 25.9.24, Kirwanda and Associates Advocates asked for the original documents for the property which the Applicant by a letter dated 26.9.24 declined to release as it was contrary to the terms of the agreement.
4. Further, that by a letter dated 4.11.24 from the County Criminal Investigations officers, Daniel Ricci was requested to attend their offices in Kilifi on 14.11.24, on a complaint of obtaining money by false pretences by Ravina Beach Gardens Limited, a party unknown to him; that being out of the country on medical grounds, he sent his Advocates to convey that message to the investigating authorities; that without any notice, he was charged in court in Criminal Case No. E906 of 2024 - Republic =Versus= Daniel Ricci where plea or any statement is yet to be taken.
5. The Applicant further stated that after charging Daniel Ricci, the same court summoned the Applicant to hand over the original documents for the property, for forensic examination; that he appeared in court on the 25.11.24 where he objected to the giving of the said documents on sound legal grounds; that by a ruling of the court delivered with lightning speed on 26.11.24, the court directed the Applicant to surrender to the investigating officers, the original certificate of title for the property and the and original power of attorney between GHL Limited and Daniel Ricci for forensic examination.
6. The Applicant asserts that the court and the prosecution are being used by an unknown complainant with no agreement with Daniel Ricci. Further, that Daniel Ricci had not taken any plea in the matter and the Applicant had not been summoned to record any statement by the investigating authority. That the orders were given on an oral application by the prosecution which did not show any basis for the grant of the same. Further that the orders are prejudicial to the Applicant and Daniel Ricci, whose property is likely to be stolen by an unknown complainant through carefully choreographed criminal processes aided and abetted through the trial court and the Director of Criminal Investigations, Kilifi; that the prosecution is being illegally used to settle a purely civil dispute which is illegal. The Applicant contended that having accepted the charges against Daniel Ricci, the trial court could not issue orders that are investigative in nature over the subject matter before it. Further, that by its actions, the court thus stopped being impartial. The Applicant urged that the orders sought be granted.
7. When the matter came up on 14.1.25, prayer 3 of the Application was granted after the Respondent’s counsel informed the Court that they had no objection to the grant of the same. What is now left for determination of the Court is whether the orders of 26.11.24 should be set aside and whether the matter should be transferred to Malindi Chief Magistrates’ Court for hearing and determination.
8. The Interested Parties were later joined in these proceedings vide a ruling of this Court dated 14.3.25.
9. In his replying affidavit sworn on 27.3.25, Dr Peter Mureithi, the 1st Interested Party denied the allegations by the Applicant. He stated that the Applicant did not act for GHL but for him and others as purchasers; that the purchase price was paid in full; that the Application is intended to delay enforcement of the warrant of arrest issued against the Applicant for contempt of court; that the Applicant ought to have filed an appeal against the order after conviction instead of the revision.
10. It was further averred that completion documents, namely the original Certificate of Title and the said power of attorney were released to the Applicant; that completion was impeded by Daniel Ricci who demanded to be paid extra sums of money to enable him sign the transfer forms; that after he filed a complaint, the investigating officer through the Respondent sought to carry out forensic analysis of the completion documents and made an oral application to that effect; that summons were issued to the Applicant for production of the same; that the trial court granted the Applicant’s request for a few hours to deliver the documents to the investigating officer; that the Applicant failed to deliver the said documents and did not file any application to object or set aside the order and summons; that he did not raise any objection that plea having been deferred he could not avail the documents; that in any event, Daniel Ricci has already taken plea.
11. Dr. Peter Mureithi contends that it is Daniel Ricci and the Applicant who are conspiring to get the land without paying and creating confusion to conceal the fact that they have not paid a coin for the land they claim; that the Applicant’s allegations regarding an “unknown complainant” is false and an act of perjury; that the complainants are himself and Ravina Beach Gardens Ltd who are known to the Applicant and for whom he acted.
12. It was further averred that the Applicant disobeyed a court order of which he was aware and the court held him in contempt; that the Applicant has chosen to obstruct the course of justice and he cannot hide under Advocate-Client relationship privileges to defy a valid court order. He urged that the Application be dismissed.
13. The 2nd Interested Party opposed the Application vide a replying affidavit sworn on 27.3.25 by its director, Dr. Peter Mureithi. His averments are similar in substance to those in his own replying affidavit sworn on even date. There is therefore no need to regurgitate the same.
14. In his Application, the Applicant has invoked the revision power of this Court which is an aspect of the supervisory jurisdiction of the Court. The revision power is strictly limited in scope to correcting legal errors, procedural irregularities, or jurisdictional defects in proceedings and orders in lower courts. It does not call for a full re-hearing of a case.
15. The Constitution has conferred upon this Court supervisory jurisdiction over subordinate courts. Article 165(6) and (7) provides as follows:
(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.
16. In exercise of this jurisdiction, this Court is empowered to call for the record of proceedings in subordinate courts, and make and give appropriate orders and directions as it deems necessary to ensure the fair administration of justice.
17. Section 362 of the Criminal Procedure Code (CPC) provides:
The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.
18. Upon obtaining and examining the record of criminal proceedings in subordinate courts, Section 364 of the CPC stipulates what the Court may do, as follows:
(1) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—
(a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;
(b) in the case of any other order other than an order of acquittal, alter or reverse the order.
(c) …
19. The purpose of the revisional jurisdiction of this Court is to correct any irregularities, improprieties or illegalities that are clearly apparent in proceedings or orders given in a subordinate court and give appropriate directions. Where the Court finds, after examining the record of proceedings before a subordinate court that the same are wanting in correctness or that there is illegality or impropriety of a finding, order or sentence, the Court may by dint of the revision powers conferred upon it by Section 364 of the CPC, enhance the sentence or alter or reverse the order except that of an acquittal.
20. In Joseph Nduvi Mbuvi v Republic [2019] eKLR, Odunga, J. (as he then was) considered the import of the revision jurisdiction of this Court and stated:
In my considered view, the object of the revisional jurisdiction of the High Court is to enable the High Court, in appropriate cases, whether during the pendency of the proceedings in the subordinate court or at the conclusion of the proceedings to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still ongoing, should be proceeded with. In other words, the High Court’s revisionary jurisdiction includes ensuring that where the proceeding in the lower court has been legally derailed, necessary directions are given to bring the same back on track so that the trial proceeds towards its intended destination without hitches. Not only is the jurisdiction exercisable where the subordinate court has made a finding, sentence or order but goes on to state that it is also exercisable to determine the regularity of any proceedings of any such subordinate court as well.
21. I have called for and examined the record in the proceedings in question with a view to satisfying myself of the correctness legality or propriety of the order complained of, dated 26.11.24. The said order is reproduced below:
1. THAT the original documents certificate of title for portion of land no. 637-Mambrui and original power of attorney dated 7.6.2019 between Gala HOLDING LIMITED and DANIEL RICCI be released by Advocate MAURICE MUTETI KILONZO to the DCI Kilifi through the Investigating Officer in the case.
2. THAT the documents be used only for purpose of forensic examination.
3. THAT the Investigating Officer will report back to court upon completion of the forensic analysis for court’s further directions in regard to disposal/custody of the documents.
22. The circumstances herein are that the impugned order was made against the Applicant in Kilifi Criminal Case No. MCCR E906 of 2024 Republic v Daniel Ricci. The Applicant is not a party in the criminal case. It is not disputed that the order was made pursuant to an oral application made by the prosecution, the Respondent herein.
23. Article 47 of the Constitution guarantees to every person the right to fair administrative action while Article 50 guarantees to every person the right to a fair hearing. A key aspect of these rights is the right to be heard and not be condemned unheard, more so where adverse orders are made against a person.
24. The legal imperative of hearing a person who is likely to be adversely affected by a decision before the decision is made cannot be overemphasized. In the case of JMK v MWM & another [2015] eKLR the Court of Appeal observed:
The courts of this land have been consistent on the importance of observing the rules of natural justice and in particular hearing a person who is likely to be adversely affected by a decision before the decision is made.
25. The fact that the order was made against the Applicant yet no formal application was made, to which he could respond, offends all notions of justice. I am guided in this regard by the decision in the case of Mbaki & Others v. Macharia & Another [2005] 2 EA 206, at page 210, where the Court of Appeal stated as follows:
The right to be heard is a valued right. It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard.
26. It is trite that in a criminal case, the burden of proof lies with the Prosecution throughout the trial and that burden does not shift. Accordingly, the trial court must remain impartial and should not descend into the arena by acting as an investigative arm or assist the prosecution in gathering evidence against an accused person. Indeed, in Ogot v Keroka Highway Service Station [2024] KECA 1499 (KLR), the Court of Appeal stated that the court cannot go into a fishing expedition looking for evidence, the court should not be seen to be assisting either side in the dispute.
27. By directing the Applicant to hand over to the investigating officer for forensic examination, the documents which were to be used in the criminal case against Daniel Ricci, the learned Magistrate clearly descended in the arena. The order in effect amounts to the court assisting the prosecution to collect evidence for the purpose of mounting the prosecution against Daniel Ricci in the same court. The learned Magistrate thus ceased to be an independent arbiter in the matter. I accordingly find that the impugned order being manifestly irregular and illegal, cannot stand. It is therefore necessary for this Court to give appropriate directions to ensure the fair administration of justice.
28. I now turn to the challenge to the territorial jurisdiction of the trial court.
29. Section 71 of the CPC makes provision for ordinary place of inquiry and trial as follows:
Subject to the provisions of section 69, and to the powers of transfer conferred by sections 79 and 81, every offence shall ordinarily be tried by a court within the local limits of whose jurisdiction it was committed, or within the local limits of whose jurisdiction the accused was apprehended, or is in custody on a charge for the offence, or has appeared in answer to a summons lawfully issued charging the offence.
30. In casu, the exhibited charge sheet indicates that the offences with which Daniel Ricci is charged were allegedly committed in Malindi Township. By dint of Section 71 of the CPC, Daniel Ricci ought to have been charged in Malindi Chief Magistrates Court within the local limits of whose jurisdiction, the offence was allegedly committed.
31. Section 81 of the CPC confers upon this Court the power to change the venue of a trial. In exercise of this power, the Court may act on the report of the lower court, or on the application of a party interested, or on its own initiative. Accordingly, having noted that the alleged offence is indicated to have been committed in Malindi, the Court finds the institution of the criminal case against Daniel Ricci in Kilifi, is unjustified. It is therefore expedient for the ends of justice, to transfer the criminal case to Malindi Law Courts.
32. In light of the foregoing, the Court finds that the Application is merited and is allowed on the following terms:
i) The orders made by the Hon. Chief Magistrate on 26.11.24 in Kilifi CMCC No. E906 of 2024 are set aside.
ii) Kilifi Chief Magistrate’s Court Criminal Case No. E906 of 2024 is transferred to Malindi Chief Magistrate’s Court for hearing and determination.
DATED SIGNED and DELIVERED in MALINDI this 18th day of September 2026