1. Before this Court is the Applicant’s Notice of Motion dated 18th March 2025 brought under Sections 81 and 362 of the Criminal Procedure Code. The Applicant, Peter Ayieko Omwando, seeks, in substance, orders that Etago Senior Principal Magistrate’s Court Criminal Case No. E407 of 2024 be transferred to another competent court within the jurisdiction of this Court.
2. The Applicant also seeks findings and directions that he was compelled, coerced and forced to proceed with the trial after he had requested time to secure legal representation; that he sought legal representation or pro bono representation but the trial court declined his request; and that this Court grants such further relief as may be necessary in the interests of justice.
3. The application is supported by the Applicant’s affidavit. He deposes that he is charged with robbery with violence in Etago Criminal Case No. E407 of 2024. He contends that the trial court is biased in conducting the proceedings and that, at some point, he was forced to proceed with the hearing without his willingness or consent.
4. He further deposes that the trial court violated his constitutional rights by requiring him to proceed without an advocate and by refusing to approve bond without cogent reasons. He also contends that the spirit of decongesting prisons has not been honoured by the trial court. He therefore prays that this Court review the matter, transfer the case to another competent court, and issue appropriate directions.
5. The Applicant filed written submissions in which he states that he is dissatisfied with the manner in which the proceedings before the trial court are being conducted. He submits that the offence facing him is serious and that the trial court ought to have accorded him adequate time to prepare and secure legal representation before the hearing commenced.
6. The Applicant relies on Articles 50(2)(g) and 50(2)(h) of the Constitution. Article 50(2)(g) guarantees an accused person the right to choose and be represented by an advocate and to be informed of that right promptly. Article 50(2)(h) guarantees the right to have an advocate assigned to an accused person by the State and at the expense of the State if substantial injustice would otherwise result, and to be informed of that right promptly.
7. The Applicant cites Joseph Kiema Philip v Republic [2019] eKLR for the proposition that the record of the trial court ought to demonstrate that an accused person was informed of the right to legal representation and, where the accused cannot afford counsel, the possibility of assignment of counsel at State expense where the law so permits. He also cites Chacha Mwita v Republic, Criminal Appeal No. 33 of 2018, for the proposition that failure to inform an accused person of the right to counsel may render proceedings a nullity.
8. The Respondent opposed the application through Grounds of Opposition. The Respondent contends that the application is frivolous, vexatious and an abuse of the court process; that it is meant to frustrate or prejudice the prosecution case; that the Applicant is forum shopping by seeking transfer to another court station; and that the grounds advanced do not meet the threshold for the grant of transfer orders.
9. The Respondent further contends that the trial court’s exercise of discretion in fast-tracking the hearing of the case is not a ground for transfer; that the Applicant has not demonstrated bias on the part of the trial court; and that the application is made in bad faith and is not in the interests of justice.
10. I have considered the Notice of Motion, the supporting affidavit, the Applicant’s written submissions, the Respondent’s Grounds of Opposition, and the applicable law. The issues for determination are: first, whether the Applicant has met the threshold for transfer of the criminal case under Section 81 of the Criminal Procedure Code; second, whether this Court should exercise revisionary or supervisory jurisdiction under Section 362 of the Criminal Procedure Code; and third, what orders should issue.
11. Section 81 of the Criminal Procedure Code empowers the High Court to transfer a criminal case where it appears that a fair and impartial trial cannot be had in a subordinate court; where a question of law of unusual difficulty is likely to arise; where a view of the place where the offence was committed may be required; where transfer is expedient for the ends of justice; or where such transfer is required by any provision of the Code.
12. The power to transfer a criminal case is discretionary and must be exercised judicially. It is not enough for an accused person to be dissatisfied with the manner in which a trial court has exercised its discretion. It must be shown, on cogent material, that there exists a real likelihood that justice will not be done, or that a fair and impartial trial cannot be had before the trial court.
13. In the case of Shilenje v Republic [1980] KLR 132, the Court held that the apprehension that an accused person will not receive a fair trial must be reasonable and based on sufficient grounds. A mere subjective fear, suspicion, discomfort or dissatisfaction with the trial magistrate is not enough.
14. The question is not whether the Applicant feels aggrieved, but whether a reasonable, fair-minded and informed observer, having considered the material placed before the Court, would conclude that there is a real possibility that the Applicant will not receive a fair trial before the trial court.
15. The Applicant alleges bias, coercion and denial of time to obtain counsel. However, the allegations have been presented in broad terms. The Applicant has not particularised the dates, orders, proceedings or conduct from which actual bias or a reasonable apprehension of bias may be inferred. He has also not demonstrated that the trial court has acted in a manner that makes it impossible or unlikely for him to receive a fair and impartial trial.
16. A trial court is entitled to control its proceedings, decline unnecessary adjournments, and ensure that criminal trials proceed expeditiously. The mere fact that a trial court declines an adjournment, fast-tracks a hearing, or makes an adverse procedural decision does not alone, amount to bias or provide a basis for transfer.
17. Similarly, a party cannot obtain transfer merely because he believes that another court may be more favourable. Transfer is not a mechanism for forum shopping. It is a protection against prejudice, not a device for avoiding the trial court's ordinary control of proceedings.
18. I am, however, alive to the seriousness of the Applicant’s complaint regarding legal representation. Article 50(2)(g) and (h) of the Constitution impose a duty on a trial court to ensure that an accused person is informed promptly of the right to choose and be represented by an advocate, and, where substantial injustice would otherwise result, the right to have an advocate assigned by the State at State expense.
19. The right under Article 50(2)(g) is immediate and mandatory. The record of the trial court should show that an accused person was informed of that right. The right under Article 50(2)(h), on the other hand, arises where substantial injustice would otherwise result. Whether substantial injustice is likely to result depends on the nature of the charge, the seriousness of the sentence, the complexity of the case, the accused's capacity to conduct the defence, and the general circumstances of the trial.
20. The Court of Appeal in David Njoroge Macharia v Republic [2011] eKLR recognised that State-funded legal representation is required where substantial injustice would otherwise result. The authorities cited by the Applicant similarly emphasise that the trial court must take the duty seriously to inform an accused person of the right to counsel and, where appropriate, to consider whether the circumstances call for State-funded legal representation.
21. The charge facing the Applicant is serious. It attracts grave penal consequences. The Applicant is a remandee and appears to be acting in person. These are relevant matters which the trial court must bear in mind when ensuring compliance with Article 50 of the Constitution.
22. The Court proceedings for 18.10.24 are clear that the right to counsel was explained to the applicant . I have not seen any record of the applicant seeking time to obtain counsel; in all instances in which the matter proceeded, he indicated that he was ready to proceed.
23. Section 362 of the Criminal Procedure Code empowers this Court to call for and examine the record of any criminal proceedings before a subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, and as to the regularity of the proceedings. Revisionary jurisdiction is therefore directed at identifiable orders, findings or proceedings.
24. In this matter, the Applicant alleged that the conduct of the trial court is unfair and that the case should be moved to another court. I have, however, noted the capital nature of the offence and the sentence upon conviction . This court appreciates that the right to Counsel has not been achieved in all cases in Kenya and that, at the moment, the offences covered are murder. Robbery with violence and Children matters . In this case, the accused proceeded without an advocate. I find that his rights under Article 50(2)(h) of the Constitution were violated, and he was prejudiced by the said proceedings. The case proceeded without an advocate.
25. The Applicant has also complained about not being granted bond. Bail and bond are constitutional rights under Article 49(1)(h), subject to compelling reasons. However, the prayer for review of bond terms was not properly framed as a substantive prayer in the Notice of Motion. I have, however, seen the ruling on bond dated 13.11.24, informed by the pre-bail report, which indicated that the security of the accused was not guaranteed at home as the community was hostile towards him and had even threatened to lynch him. Those were compelling reasons at that stage. If the Applicant wishes to have the same reviewed, he can move the trial court, not this court.
26. The Applicant has also submitted that the complainant may wish to withdraw the complaint. That assertion, even if true, is not by itself a ground for transfer. Criminal proceedings are prosecuted by the Director of Public Prosecutions. The wishes of a complainant may be relevant in appropriate cases, but they do not automatically determine whether a criminal case should proceed or be withdrawn.
27. The Court must balance the Applicant’s right to a fair trial with the public interest in the prosecution of criminal offences and the rights of witnesses and complainants. The right to a fair trial includes the right to adequate time and facilities to prepare a defence, the right to legal representation, the right to challenge evidence and the right to have the trial conducted by an impartial court. It also includes the public interest in having trials heard without undue delay.
28. Having considered all the material before me, I am not satisfied that the Applicant has demonstrated actual bias or a reasonable apprehension of bias on the part of the trial court. I am also not satisfied that a fair and impartial trial cannot be had before the Etago Senior Principal Magistrate’s Court.
29. In any event, Hon Nyaga (PM ), who took the evidence, has since been transferred from Etago Law Courts.
30. The prayer for transfer of Etago Senior Principal Magistrate’s Court Criminal Case No. E407 of 2024 to another court is therefore declined.
31. However, in order to safeguard the Applicant’s fair trial rights and to avoid any doubt regarding compliance with Article 50(2)(g) and (h) of the Constitution, this Court shall issue directions to the trial court.
32. Consequently, the application dated 18th March 2025 partially succeeds to a limited extent in the following directions:
a. The prayer for transfer of Etago Senior Principal Magistrate’s Court Criminal Case No. E407 of 2024 to another court is declined.
b. The prayer to revise, nullify, set aside or restart the proceedings already taken before the trial court is declined.
c. Before the next hearing date, the trial court shall take the necessary steps to ensure that the Applicant is allocated a pro bono advocate at the cost of the State
f. The Applicant is at liberty to apply for recall of any witness for further cross-examination before the trial court, which application shall be considered on its merits.
g. If the Applicant seeks review of bond or bail terms, he is at liberty to make a proper application before the trial court
h. The lower court shall proceed with the hearing expeditiously.
i. Mention on 27.7.27 before Hon F.Nyakundi (PM) Etago for directions on allocation of pro bono counsel and further hearing.
j. P O. to issue .
T.A ODERA
JUDGE
23.6.26
DATED, SIGNED AND DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 29TH DAY OF JUNE 2026
In the presence of:
Applicant: Present
Mr Koima For the State
Court Assistant: Kipchirchir
2. The Applicant also seeks findings and directions that he was compelled, coerced and forced to proceed with the trial after he had requested time to secure legal representation; that he sought legal representation or pro bono representation but the trial court declined his request; and that this Court grants such further relief as may be necessary in the interests of justice.
3. The application is supported by the Applicant’s affidavit. He deposes that he is charged with robbery with violence in Etago Criminal Case No. E407 of 2024. He contends that the trial court is biased in conducting the proceedings and that, at some point, he was forced to proceed with the hearing without his willingness or consent.
4. He further deposes that the trial court violated his constitutional rights by requiring him to proceed without an advocate and by refusing to approve bond without cogent reasons. He also contends that the spirit of decongesting prisons has not been honoured by the trial court. He therefore prays that this Court review the matter, transfer the case to another competent court, and issue appropriate directions.
5. The Applicant filed written submissions in which he states that he is dissatisfied with the manner in which the proceedings before the trial court are being conducted. He submits that the offence facing him is serious and that the trial court ought to have accorded him adequate time to prepare and secure legal representation before the hearing commenced.
6. The Applicant relies on Articles 50(2)(g) and 50(2)(h) of the Constitution. Article 50(2)(g) guarantees an accused person the right to choose and be represented by an advocate and to be informed of that right promptly. Article 50(2)(h) guarantees the right to have an advocate assigned to an accused person by the State and at the expense of the State if substantial injustice would otherwise result, and to be informed of that right promptly.
7. The Applicant cites Joseph Kiema Philip v Republic [2019] eKLR for the proposition that the record of the trial court ought to demonstrate that an accused person was informed of the right to legal representation and, where the accused cannot afford counsel, the possibility of assignment of counsel at State expense where the law so permits. He also cites Chacha Mwita v Republic, Criminal Appeal No. 33 of 2018, for the proposition that failure to inform an accused person of the right to counsel may render proceedings a nullity.
8. The Respondent opposed the application through Grounds of Opposition. The Respondent contends that the application is frivolous, vexatious and an abuse of the court process; that it is meant to frustrate or prejudice the prosecution case; that the Applicant is forum shopping by seeking transfer to another court station; and that the grounds advanced do not meet the threshold for the grant of transfer orders.
9. The Respondent further contends that the trial court’s exercise of discretion in fast-tracking the hearing of the case is not a ground for transfer; that the Applicant has not demonstrated bias on the part of the trial court; and that the application is made in bad faith and is not in the interests of justice.
10. I have considered the Notice of Motion, the supporting affidavit, the Applicant’s written submissions, the Respondent’s Grounds of Opposition, and the applicable law. The issues for determination are: first, whether the Applicant has met the threshold for transfer of the criminal case under Section 81 of the Criminal Procedure Code; second, whether this Court should exercise revisionary or supervisory jurisdiction under Section 362 of the Criminal Procedure Code; and third, what orders should issue.
11. Section 81 of the Criminal Procedure Code empowers the High Court to transfer a criminal case where it appears that a fair and impartial trial cannot be had in a subordinate court; where a question of law of unusual difficulty is likely to arise; where a view of the place where the offence was committed may be required; where transfer is expedient for the ends of justice; or where such transfer is required by any provision of the Code.
12. The power to transfer a criminal case is discretionary and must be exercised judicially. It is not enough for an accused person to be dissatisfied with the manner in which a trial court has exercised its discretion. It must be shown, on cogent material, that there exists a real likelihood that justice will not be done, or that a fair and impartial trial cannot be had before the trial court.
13. In the case of Shilenje v Republic [1980] KLR 132, the Court held that the apprehension that an accused person will not receive a fair trial must be reasonable and based on sufficient grounds. A mere subjective fear, suspicion, discomfort or dissatisfaction with the trial magistrate is not enough.
14. The question is not whether the Applicant feels aggrieved, but whether a reasonable, fair-minded and informed observer, having considered the material placed before the Court, would conclude that there is a real possibility that the Applicant will not receive a fair trial before the trial court.
15. The Applicant alleges bias, coercion and denial of time to obtain counsel. However, the allegations have been presented in broad terms. The Applicant has not particularised the dates, orders, proceedings or conduct from which actual bias or a reasonable apprehension of bias may be inferred. He has also not demonstrated that the trial court has acted in a manner that makes it impossible or unlikely for him to receive a fair and impartial trial.
16. A trial court is entitled to control its proceedings, decline unnecessary adjournments, and ensure that criminal trials proceed expeditiously. The mere fact that a trial court declines an adjournment, fast-tracks a hearing, or makes an adverse procedural decision does not alone, amount to bias or provide a basis for transfer.
17. Similarly, a party cannot obtain transfer merely because he believes that another court may be more favourable. Transfer is not a mechanism for forum shopping. It is a protection against prejudice, not a device for avoiding the trial court's ordinary control of proceedings.
18. I am, however, alive to the seriousness of the Applicant’s complaint regarding legal representation. Article 50(2)(g) and (h) of the Constitution impose a duty on a trial court to ensure that an accused person is informed promptly of the right to choose and be represented by an advocate, and, where substantial injustice would otherwise result, the right to have an advocate assigned by the State at State expense.
19. The right under Article 50(2)(g) is immediate and mandatory. The record of the trial court should show that an accused person was informed of that right. The right under Article 50(2)(h), on the other hand, arises where substantial injustice would otherwise result. Whether substantial injustice is likely to result depends on the nature of the charge, the seriousness of the sentence, the complexity of the case, the accused's capacity to conduct the defence, and the general circumstances of the trial.
20. The Court of Appeal in David Njoroge Macharia v Republic [2011] eKLR recognised that State-funded legal representation is required where substantial injustice would otherwise result. The authorities cited by the Applicant similarly emphasise that the trial court must take the duty seriously to inform an accused person of the right to counsel and, where appropriate, to consider whether the circumstances call for State-funded legal representation.
21. The charge facing the Applicant is serious. It attracts grave penal consequences. The Applicant is a remandee and appears to be acting in person. These are relevant matters which the trial court must bear in mind when ensuring compliance with Article 50 of the Constitution.
22. The Court proceedings for 18.10.24 are clear that the right to counsel was explained to the applicant . I have not seen any record of the applicant seeking time to obtain counsel; in all instances in which the matter proceeded, he indicated that he was ready to proceed.
23. Section 362 of the Criminal Procedure Code empowers this Court to call for and examine the record of any criminal proceedings before a subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, and as to the regularity of the proceedings. Revisionary jurisdiction is therefore directed at identifiable orders, findings or proceedings.
24. In this matter, the Applicant alleged that the conduct of the trial court is unfair and that the case should be moved to another court. I have, however, noted the capital nature of the offence and the sentence upon conviction . This court appreciates that the right to Counsel has not been achieved in all cases in Kenya and that, at the moment, the offences covered are murder. Robbery with violence and Children matters . In this case, the accused proceeded without an advocate. I find that his rights under Article 50(2)(h) of the Constitution were violated, and he was prejudiced by the said proceedings. The case proceeded without an advocate.
25. The Applicant has also complained about not being granted bond. Bail and bond are constitutional rights under Article 49(1)(h), subject to compelling reasons. However, the prayer for review of bond terms was not properly framed as a substantive prayer in the Notice of Motion. I have, however, seen the ruling on bond dated 13.11.24, informed by the pre-bail report, which indicated that the security of the accused was not guaranteed at home as the community was hostile towards him and had even threatened to lynch him. Those were compelling reasons at that stage. If the Applicant wishes to have the same reviewed, he can move the trial court, not this court.
26. The Applicant has also submitted that the complainant may wish to withdraw the complaint. That assertion, even if true, is not by itself a ground for transfer. Criminal proceedings are prosecuted by the Director of Public Prosecutions. The wishes of a complainant may be relevant in appropriate cases, but they do not automatically determine whether a criminal case should proceed or be withdrawn.
27. The Court must balance the Applicant’s right to a fair trial with the public interest in the prosecution of criminal offences and the rights of witnesses and complainants. The right to a fair trial includes the right to adequate time and facilities to prepare a defence, the right to legal representation, the right to challenge evidence and the right to have the trial conducted by an impartial court. It also includes the public interest in having trials heard without undue delay.
28. Having considered all the material before me, I am not satisfied that the Applicant has demonstrated actual bias or a reasonable apprehension of bias on the part of the trial court. I am also not satisfied that a fair and impartial trial cannot be had before the Etago Senior Principal Magistrate’s Court.
29. In any event, Hon Nyaga (PM ), who took the evidence, has since been transferred from Etago Law Courts.
30. The prayer for transfer of Etago Senior Principal Magistrate’s Court Criminal Case No. E407 of 2024 to another court is therefore declined.
31. However, in order to safeguard the Applicant’s fair trial rights and to avoid any doubt regarding compliance with Article 50(2)(g) and (h) of the Constitution, this Court shall issue directions to the trial court.
32. Consequently, the application dated 18th March 2025 partially succeeds to a limited extent in the following directions:
a. The prayer for transfer of Etago Senior Principal Magistrate’s Court Criminal Case No. E407 of 2024 to another court is declined.
b. The prayer to revise, nullify, set aside or restart the proceedings already taken before the trial court is declined.
c. Before the next hearing date, the trial court shall take the necessary steps to ensure that the Applicant is allocated a pro bono advocate at the cost of the State
f. The Applicant is at liberty to apply for recall of any witness for further cross-examination before the trial court, which application shall be considered on its merits.
g. If the Applicant seeks review of bond or bail terms, he is at liberty to make a proper application before the trial court
h. The lower court shall proceed with the hearing expeditiously.
i. Mention on 27.7.27 before Hon F.Nyakundi (PM) Etago for directions on allocation of pro bono counsel and further hearing.
j. P O. to issue .
T.A ODERA
JUDGE
23.6.26
DATED, SIGNED AND DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 29TH DAY OF JUNE 2026
In the presence of:
Applicant: Present
Mr Koima For the State
Court Assistant: Kipchirchir