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The Applicants’ Notice of Motion dated 30th September 2025 essentially sought the following orders:
a) Spent
b) Overtaken by events
c) That this Court be pleased to call for the record of proceedings in Mombasa Criminal Case No. E1007 of 2021 and make an order setting aside the ruling and/or directions given and issued on 3rd September 2025 dismissing the Applicants’ Motion dated 29th July 2025 for alleged lack of merit, and direct that the said application be heard inter partes by any other court other than the trial court.
d) Costs of the application be provided for.
The Applicants submitted that under Article 25(c) and Article 50(1) of the Constitution of Kenya, the rights to a fair trial and fair hearing are guaranteed. That Article 25(c) is of particular importance as it declares that the right to a fair trial cannot be limited by any law or individual. They argued that the concept of a fair hearing obligates all courts in Kenya to accord every accused person full and unfettered opportunity to be heard.
The Applicants further stated that they filed the application dated 29th July 2025 before the trial court under a certificate of urgency. However, the same was not acted upon, prompting them to file a notice of withdrawal and subsequently file Miscellaneous Application No. E570 of 2025 before the duty court. They contended that this was not an act of forum shopping but an exercise of their constitutional right under Article 50(1).
They further submitted that the application was not filed on the eve of the hearing as alleged by the trial court. The application was filed on 29th July 2025, whereas the matter had been scheduled for further hearing on 2nd and 3rd September 2025 — allowing more than a month for the trial court to hear and determine the application. They argued that the trial court’s dismissal of the application suo motu for lack of merit, without hearing it, amounted to a violation of their right to a fair hearing.
The Applicants explained that they filed the said application after coming across material evidence marked as an exhibit by Senior Superintendent of Police No. 231391 during the prosecution hearing on 19th May 2022 and later produced as an exhibit in court in July 2025. The Applicants had formally applied to be supplied with certified copies of exhibits, which the trial court had previously allowed.
They contended that the source of the evidence was unknown to the investigating officer, and since the offences before the court involved forgery and uttering false documents, the said evidence was crucial to their defence. They argued that it would have assisted the court in making a just and informed determination, allowing them to adequately challenge the prosecution’s case.
According to the Applicants, the trial court was duly informed of the reasons the scheduled hearing could not proceed. Their advocate had sought directions for hearing the pending application, which, by procedural practice, should have been heard and determined first. They asserted that the trial court’s decision to dismiss the application for want of merit without hearing it violated their constitutional rights under Articles 25(c), 27(1)(2), and 50(1) of the Constitution.
They urged this Court to uphold the law and the Constitution by allowing their Motion as prayed, thereby exercising the Court’s jurisdiction under Article 23 as read with Article 165 of the Constitution. They further submitted that such a determination would safeguard the integrity of the judicial process and ensure that justice is not only done but seen to be done.
RESPONDENT’S RESPONSE
The Respondent, through a Replying Affidavit sworn by Brenda Ogada , Principal Prosecution Counsel, opposed the application, deponing that she is the counsel in conduct of Mombasa Criminal Case No. E1007 of 2021 — Republic v. Shivji Jadva Varsani & Victor Arara Were, before Hon. G. Olimo, and therefore competent to swear the affidavit.
She deposed that the Applicants have on numerous occasions applied for adjournments before the trial court, resulting in inordinate delays and undue inconvenience to the prosecution and witnesses.
It was further deposed that the Applicants had previously applied before this Court to have two prosecution witnesses recalled for further cross-examination, which application was granted.
However, despite the prosecution facilitating the attendance of those witnesses — one based in London and another in Nairobi the Applicants have repeatedly sought adjournments whenever the witnesses appeared, occasioning unnecessary expense and inconvenience.
The Respondent further contended that the Applicants have filed multiple applications before both the trial court and this Court arising from the same proceedings, including the present revision and another seeking recusal of the trial magistrate on allegations of bias and personal interest.
The issue of recusal, it was stated, is still pending before the subordinate court, which has jurisdiction to determine it in the first instance. This renders the current application premature, duplicative, and sub judice .
The Respondent asserted that allegations of bias against the trial magistrate are baseless, unsubstantiated, and malicious, as no credible evidence has been presented to support any claim of actual or perceived bias.
It was further submitted that the trial magistrate acted within the law in dismissing the Applicants’ application seeking to be furnished with exhibits already produced in evidence by the prosecution. Once exhibits are produced, they become the property of the court and remain in its custody to preserve the integrity of the trial record.
The Respondent maintained that the present application is misconceived, frivolous, and amounts to an abuse of the court process.
ISSUES FOR DETERMINATION
From the pleadings and submissions, the following issues arise for determination:
Whether the application meets the threshold for revision under Sections 362–364 of the Criminal Procedure Code;
Whether the Applicants have demonstrated any illegality, impropriety, or material irregularity in the trial court’s ruling; and
Whether the application amounts to an abuse of the court process.
THE LAW ON REVISION
Section 362 of the Criminal Procedure Code empowers the High Court to call for and examine the record of any criminal proceedings before a subordinate court to satisfy itself as to the correctness, legality, or propriety of any finding, sentence, or order.
Section 364 limits this jurisdiction to correcting clear errors, illegalities, or procedural irregularities, and not to re-evaluate evidence or substitute the discretion of the trial court.
Courts have consistently held that revision is not an appeal in disguise, and interference by the High Court is only warranted where a clear miscarriage of justice has occurred.
ON ALLEGED BIAS AND RECUSAL
The Applicants allege bias and personal interest on the part of the trial magistrate. However, no credible evidence has been presented to substantiate such claims.
The principles governing judicial bias are well settled — an apprehension of bias must be based on cogent facts and not mere suspicion or dissatisfaction with judicial rulings. (See R v Chief Magistrate’s Court & Another (2020) eKLR ).
In the present case, the allegations are speculative and unfounded. The Applicants have not demonstrated any conduct or interest on the part of the magistrate that would give rise to a reasonable apprehension of bias.
ON THE CONDUCT OF THE APPLICANTS AND ABUSE OF PROCESS
Upon reviewing the trial record, it is evident that the Applicants have repeatedly sought adjournments, thereby delaying the proceedings. Despite successfully obtaining leave to recall two prosecution witnesses, they have sought adjournments on each occasion the witnesses including one based abroad , attended court.
This conduct, coupled with multiple similar applications before both this Court and the trial court, demonstrates an attempt to delay and frustrate the expeditious determination of the trial. This is an abuse of the court process, contrary to Article 159(2)(b) of the Constitution which enjoins courts to ensure timely disposal of cases.
The ruling of the trial court does not disclose any illegality, impropriety, or irregularity that would warrant this Court’s intervention under Sections 362–367 of the Criminal Procedure Code. The Applicants have been accorded a fair hearing and have exercised all rights available to them under the law.
ON THE TRIAL COURT’S RULING REGARDING EXHIBITS
The trial magistrate correctly dismissed the application dated 29th July 2025 for want of merit and for being an abuse of the court process. The decision was properly founded and within the bounds of the law.
CONCLUSION
The Applicants have failed to demonstrate any error of law, illegality, or procedural impropriety on the part of the trial court. The application is premature, sub judice due to the pending recusal application before the subordinate court, and constitutes an abuse of the court process.
Accordingly, the Application dated 30th September 2025 is dismissed . The trial before the subordinate court shall proceed expeditiously to its conclusion.
No orders as to costs.
DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS
this …14 TH … day of …NOVEMBER …… 2025.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of:
MR MUTHURI FOR THE APPLICANT
MR NGIRI FOR THE RESPONDENT
BEBORA COURT ASSISTANT
HON. LADY JUSTICE W. K. MICHENI
JUDGE
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The Applicants’ Notice of Motion dated 30th September 2025 essentially sought the following orders:
a) Spent
b) Overtaken by events
c) That this Court be pleased to call for the record of proceedings in Mombasa Criminal Case No. E1007 of 2021 and make an order setting aside the ruling and/or directions given and issued on 3rd September 2025 dismissing the Applicants’ Motion dated 29th July 2025 for alleged lack of merit, and direct that the said application be heard inter partes by any other court other than the trial court.
d) Costs of the application be provided for.
The Applicants submitted that under Article 25(c) and Article 50(1) of the Constitution of Kenya, the rights to a fair trial and fair hearing are guaranteed. That Article 25(c) is of particular importance as it declares that the right to a fair trial cannot be limited by any law or individual. They argued that the concept of a fair hearing obligates all courts in Kenya to accord every accused person full and unfettered opportunity to be heard.
The Applicants further stated that they filed the application dated 29th July 2025 before the trial court under a certificate of urgency. However, the same was not acted upon, prompting them to file a notice of withdrawal and subsequently file Miscellaneous Application No. E570 of 2025 before the duty court. They contended that this was not an act of forum shopping but an exercise of their constitutional right under Article 50(1).
They further submitted that the application was not filed on the eve of the hearing as alleged by the trial court. The application was filed on 29th July 2025, whereas the matter had been scheduled for further hearing on 2nd and 3rd September 2025 — allowing more than a month for the trial court to hear and determine the application. They argued that the trial court’s dismissal of the application suo motu for lack of merit, without hearing it, amounted to a violation of their right to a fair hearing.
The Applicants explained that they filed the said application after coming across material evidence marked as an exhibit by Senior Superintendent of Police No. 231391 during the prosecution hearing on 19th May 2022 and later produced as an exhibit in court in July 2025. The Applicants had formally applied to be supplied with certified copies of exhibits, which the trial court had previously allowed.
They contended that the source of the evidence was unknown to the investigating officer, and since the offences before the court involved forgery and uttering false documents, the said evidence was crucial to their defence. They argued that it would have assisted the court in making a just and informed determination, allowing them to adequately challenge the prosecution’s case.
According to the Applicants, the trial court was duly informed of the reasons the scheduled hearing could not proceed. Their advocate had sought directions for hearing the pending application, which, by procedural practice, should have been heard and determined first. They asserted that the trial court’s decision to dismiss the application for want of merit without hearing it violated their constitutional rights under Articles 25(c), 27(1)(2), and 50(1) of the Constitution.
They urged this Court to uphold the law and the Constitution by allowing their Motion as prayed, thereby exercising the Court’s jurisdiction under Article 23 as read with Article 165 of the Constitution. They further submitted that such a determination would safeguard the integrity of the judicial process and ensure that justice is not only done but seen to be done.
RESPONDENT’S RESPONSE
The Respondent, through a Replying Affidavit sworn by Brenda Ogada , Principal Prosecution Counsel, opposed the application, deponing that she is the counsel in conduct of Mombasa Criminal Case No. E1007 of 2021 — Republic v. Shivji Jadva Varsani & Victor Arara Were, before Hon. G. Olimo, and therefore competent to swear the affidavit.
She deposed that the Applicants have on numerous occasions applied for adjournments before the trial court, resulting in inordinate delays and undue inconvenience to the prosecution and witnesses.
It was further deposed that the Applicants had previously applied before this Court to have two prosecution witnesses recalled for further cross-examination, which application was granted.
However, despite the prosecution facilitating the attendance of those witnesses — one based in London and another in Nairobi the Applicants have repeatedly sought adjournments whenever the witnesses appeared, occasioning unnecessary expense and inconvenience.
The Respondent further contended that the Applicants have filed multiple applications before both the trial court and this Court arising from the same proceedings, including the present revision and another seeking recusal of the trial magistrate on allegations of bias and personal interest.
The issue of recusal, it was stated, is still pending before the subordinate court, which has jurisdiction to determine it in the first instance. This renders the current application premature, duplicative, and sub judice .
The Respondent asserted that allegations of bias against the trial magistrate are baseless, unsubstantiated, and malicious, as no credible evidence has been presented to support any claim of actual or perceived bias.
It was further submitted that the trial magistrate acted within the law in dismissing the Applicants’ application seeking to be furnished with exhibits already produced in evidence by the prosecution. Once exhibits are produced, they become the property of the court and remain in its custody to preserve the integrity of the trial record.
The Respondent maintained that the present application is misconceived, frivolous, and amounts to an abuse of the court process.
ISSUES FOR DETERMINATION
From the pleadings and submissions, the following issues arise for determination:
Whether the application meets the threshold for revision under Sections 362–364 of the Criminal Procedure Code;
Whether the Applicants have demonstrated any illegality, impropriety, or material irregularity in the trial court’s ruling; and
Whether the application amounts to an abuse of the court process.
THE LAW ON REVISION
Section 362 of the Criminal Procedure Code empowers the High Court to call for and examine the record of any criminal proceedings before a subordinate court to satisfy itself as to the correctness, legality, or propriety of any finding, sentence, or order.
Section 364 limits this jurisdiction to correcting clear errors, illegalities, or procedural irregularities, and not to re-evaluate evidence or substitute the discretion of the trial court.
Courts have consistently held that revision is not an appeal in disguise, and interference by the High Court is only warranted where a clear miscarriage of justice has occurred.
ON ALLEGED BIAS AND RECUSAL
The Applicants allege bias and personal interest on the part of the trial magistrate. However, no credible evidence has been presented to substantiate such claims.
The principles governing judicial bias are well settled — an apprehension of bias must be based on cogent facts and not mere suspicion or dissatisfaction with judicial rulings. (See R v Chief Magistrate’s Court & Another (2020) eKLR ).
In the present case, the allegations are speculative and unfounded. The Applicants have not demonstrated any conduct or interest on the part of the magistrate that would give rise to a reasonable apprehension of bias.
ON THE CONDUCT OF THE APPLICANTS AND ABUSE OF PROCESS
Upon reviewing the trial record, it is evident that the Applicants have repeatedly sought adjournments, thereby delaying the proceedings. Despite successfully obtaining leave to recall two prosecution witnesses, they have sought adjournments on each occasion the witnesses including one based abroad , attended court.
This conduct, coupled with multiple similar applications before both this Court and the trial court, demonstrates an attempt to delay and frustrate the expeditious determination of the trial. This is an abuse of the court process, contrary to Article 159(2)(b) of the Constitution which enjoins courts to ensure timely disposal of cases.
The ruling of the trial court does not disclose any illegality, impropriety, or irregularity that would warrant this Court’s intervention under Sections 362–367 of the Criminal Procedure Code. The Applicants have been accorded a fair hearing and have exercised all rights available to them under the law.
ON THE TRIAL COURT’S RULING REGARDING EXHIBITS
The trial magistrate correctly dismissed the application dated 29th July 2025 for want of merit and for being an abuse of the court process. The decision was properly founded and within the bounds of the law.
CONCLUSION
The Applicants have failed to demonstrate any error of law, illegality, or procedural impropriety on the part of the trial court. The application is premature, sub judice due to the pending recusal application before the subordinate court, and constitutes an abuse of the court process.
Accordingly, the Application dated 30th September 2025 is dismissed . The trial before the subordinate court shall proceed expeditiously to its conclusion.
No orders as to costs.
DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS
this …14 TH … day of …NOVEMBER …… 2025.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of:
MR MUTHURI FOR THE APPLICANT
MR NGIRI FOR THE RESPONDENT
BEBORA COURT ASSISTANT
HON. LADY JUSTICE W. K. MICHENI
JUDGE
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