RAVASPAUL KYALO MUTISYA VS ODPP AND STANLEY MUSYOKA MUINDE AND 1 Others RAVASPAUL KYALO MUTISYA VS ODPP AND STANLEY MUSYOKA MUINDE AND 1 Others

INTRODUCTION

The applicant by way of a notice of motion dated 3^rd October 2024 seeks to have this court review its orders issued on 29^th September 2024 transferring Milimani Chief Magistrates Court Criminal Case No. E134 of 2024 Republic Versus Stanley Musyoka Muinde alias Musyoka Muumbo transferred from Milimani to the Chief Magistrate Court Kitui for hearing and final determination.
The applicant has relied on the following : - (Section 1,1A,3,3A 80A of the Civil Procedure Act, Cap 21 Order 51 rule 1, Order 2 Rule 15 1d and Order 45 Rule 1 of the Civil Procedures Rules and all other enabling provisions.)
It is important to point out at this stage that all the provisions cited by the applicant are inapplicable in a criminal matter thus the application is not expressed to be brought under any known provision of the Criminal Procedure Code.
This court would not have hesitated from striking out the application suo moto that on the date that the matter was placed before this court for directions, this court noted that the issues raised by the applicant concerned the administration of justice and by dint of Article 48 as read together with Article 159 of the Constitution of Kenya the court allowed the applicant to appear before it and canvass the matter on merit in the interest of justice.
The order sought to be reviewed was granted by this court in exercise of this courts jurisdiction as provided under Section 81 of the Criminal Procedure Code which states:-

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; or
(b) that some question of law of unusual difficulty is likely to arise; or
(c) that a view of the place in or near which any offence has been committed may be required for the satisfactory trial of the offence; or
(d) that an order under this section will tend to the general convenience of the parties or witnesses; or
(e) that such an order is expedient for the ends of justice or is required by any provision of this Code, it may order—
(i) that an offence be tried by a court not empowered under the preceding sections of this Part but in other respects competent to try the offence;
(ii) that a particular criminal case or class of cases be transferred from a criminal court subordinate to its authority to any other criminal court of equal or superior jurisdiction;
(iii) that an accused person be committed for trial to itself.
(2) The High Court may act on the report of the lower court, or on the application of a party interested, or on its own initiative.
(3) Every application for the exercise of the power conferred by this section shall be made by motion, which shall, except when the applicant is the Director of Public Prosecutions, be supported by affidavit.
(4) An accused person making any such application shall give to the Director of Public Prosecutions notice in writing of the application, together with a copy of the grounds on which it is made, and no order shall be made on the merits of the application unless at least twenty-four hours have elapsed between the giving of notice and the hearing of the application.
(5) When an accused person makes any such application, the High Court may direct him to execute a bond, with or without sureties, conditioned that he will, if convicted, pay the costs of the prosecutor.

The court made the order for transfer following an application filed by the accused person dated 30^th August 2024 and filed I court on 4^th September 2024. Among the grounds that the accused person had raised in the application were that :-
The Applicant herein has been charged with forgery of a document of a title deed contrary to section 351 of the Penal Code in criminal case no. 134 of 2024.
The said offence is alleged to have been committed by the Applicant within Kitui County where the subject property is situate.
Despite the allegations of the said offence being committed within Kitui county, the Applicant was charged and the case filed in Nairobi county to wit, Milimani Magistrates court.
The subject property is located within Kitui county and the said offence is alleged to have been committed within Kitui county hence the criminal case ought to have been filed within Kitui Magisterial area.
The accused is a person of limited means who resides within Kitui county hence he has been straining financially to facilitate his court attendance at Milimani Magistrates court.
Bearing in mind the distance between Kitui county and Nairobi county and the time frame of court activities, the accused has to travel a day in advance to enable him punctually attend court.
The cause of complaint arose within Kitui county hence the criminal case ought to have been filed within Kitui magisterial area.
That as such an order of transfer of this case to the correct magisterial area will tend to the general convenience of the Applicant and his witnesses.
The said matter is yet to commence for hearing and the same has been scheduled on the 22nd of October 2024.
It will cause no prejudice to the Respondent herein and it is in the interest of justice that the criminal case be speedily transferred to Kitui where it can be determined expeditiously by the court with proper geographical jurisdiction.
At the hearing of the application dated 30^th August 2024 the applicant did not appear to prosecute his application but the state was represented by Mr. Chebii Prosecution Counsel who informed the court that the state was not opposed to the application for transfer of the matter from Milimani to Kitui law courts for hearing and determination.
The applicant in the present application accuses the prosecution counsel for failing to oppose the application and further urges that the prosecution counsel ought to have consulted him as the victim as well as the investigator in the matter.
According to the applicant he is unlikely to get justice in Kitui Law courts because he has previously lost a civil suit in those courts and also that the police in Kitui had declined to investigate the matter giving rise to the criminal case.
The applicant has not specifically mentioned any judicial officer in Kitui law courts that he is uncomfortable with handling his matter but has simply cast aspersions against all sundry.
Mr. Muindi Prosecution Counsel at the hearing of the instant application supported the position earlier on taken by the prosecution. According to him the property that is the subject of dispute in these proceedings is KYANGWITHYA / ISEWANI 1939 within Kitui County thus the proper place of trial of this case is Kitui Chief Magistrates Court.
The Prosecution counsel did not express any difficulty with their witnesses having to travel to that court and give evidence thus counsel was opposed to the application of review of the previous order of this court transferring the matter for trial at the Chief Magistrates Court Kitui.
The applicant submitted that the investigators in this matter are drawn from Nairobi and his other witnesses reside in Nairobi. He however did not name the witnesses that he says would be inconvenienced in the event the matter was to be tried in Kitui.
The applicant has also taken issues with the fact that this court made the order for transfer of the matter from Milimani to Kitui without hearing the accused person who was the applicant and for that reason he believes the order should be reviewed.
This court in considering an application for transfer of a matter from one court to another need not hear any party.
A plain reading of section 81 of the Criminal Procedure Code reveals that a party seeking transfer of a matter from one court to another is required to file a notice of motion supported by an affidavit except where the applicant is the Director of Public Prosecutions in which the case the Director of Public Prosecutions would not be required to sign any affidavit.
Section 81 (4) of the Criminal Procedure Code requires tan accused person who makes such an application to give the Director of Public Prosecutions a notice in writing of the application together with a copy of the grounds on which it is made. The provision does not require the Director of Public Prosecution to consult the victim or the Investigation Officer on the matter once the application is received.
It follows therefore that the argument by the applicant that he was not consulted by the Prosecution Counsel is not supported by the law and does not hold water to warrant the review of the order earlier on granted by this court.
Applications for transfer cases from one court to another touch on the integrity of the court and must be handled with caution by the courts to avoid eroding public confidence in our courts.
The court before which an application for transfer is made must ensure that the grounds set out under Section 81,1 of the Criminal Procedure Code are made out before an order for transfer is made. In Joseph Korir alias David arap Chonjo v Republic [2018] eKLR that relied on Kamande & 3 Others vs. Republic [2014] eKLR the court held thus:

“When giving consideration to an application for the transfer of a case, the court will assess whether the applicant’s apprehension was reasonable and founded on sufficient material. The reason for laying emphasis on these factors is that the court has a duty to encourage trust in the integrity and independence of the Judiciary. Therefore allegations which may be directed at Judicial Officers, alleging bias and lack of fairness must not therefore be accepted without there being substantive evidence to back them. If a court was too quick to accept allegations of bias directed against its officers, without first demanding proper substantiation, it would erode the very foundation upon which the judiciary was founded. At the same time, the court must balance this consideration with the need to ensure that justice is not only done, but also seen to be done.”

The court in the above quoted decision emphasized the need to protect the image of the courts more so where spurious allegations are made against the integrity of the courts by a party. The applicant has simply told this court that he has no faith in all the judicial officers serving in Kitui, I must confess that , that indication of the applicant left this court wondering what is so special about this criminal case that the applicant believes every other judicial officer in Kitui would simply be bend on denying him justice.
The applicant needs to know that the Director of Public Prosecutions has the sole authority to decide where to initiate a criminal proceedings within the Republic and on making such a decision the Director either by himself or through counsel acting under his special or general instructions are guided by the following:-
The place where an offence is alleged to have been committed.
The place where the accused person resides.
The place where the witnesses are drawn.
The place where if a trial were to be held it would tend to the general convenience of parties or witnesses.
That a view of the place in or near which any offence has been committed may be required for the satisfactory trial of the offence
The prosecution counsel indicated to the court that the land in issue is situated in Kitui county. The applicant has not denied that fact. The applicant indeed stated that he had first went to report the matter in Kitui but the police officers there declined to investigate thus prompted him to move to Nairobi where he made his report culminating into the criminal case before court.
It is therefore clear that this matter originates from Kitui and since the applicant has not given the names of the witnesses he alleges to be residing in Nairobi this court is not inclined to review its decision transferring the matter to Kitui Law courts for trial.
It would be dangerous if courts were to succumb to the whims of victims of crime and order cases to be tried where a victim elects. By doing so, courts would be encouraging forum shopping by complainants or victims of crime a practice that all courts frown upon.
The applicant has not made any allegations to suggest that the accused by his application to have the matter transferred to Kitui was engaged in forum shopping. I have reviewed the grounds set out by the accused in seeking the transfer of the matter to Kitui law courts and I have no doubt in my mind that the reasons advanced by the accused person satisfied the threshold for change of venue for trial.
In the end the application dated 30^th October 2024 seeking the review of this court’s order dated 25^th September 2024 is hereby dismissed.
It is so ordered.

RAVASPAUL KYALO MUTISYA VS ODPP AND STANLEY MUSYOKA MUINDE AND 1 Others

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