1. Before this Court for determination is the Notice of Motion dated 27 th January 2026, filed by the Office of the Director of Public Prosecutions (the Applicant). The application seeks an order that Kericho Chief Magistrate’s Court Sexual Offence Case No. E109 of 2025 be transferred to Tamu Law Courts for hearing and final determination.
2. The application is expressed to be brought under Section 81(1)(d), (e), (f), (i), (2) and (3) of the Criminal Procedure Code, Cap 75 Laws of Kenya. It is supported by an affidavit sworn by ANTHONY KARANJA , a Prosecution Counsel in the Office of the Director of Public Prosecutions.
3. The Applicant’s case is set out in the Notice of Motion and the Supporting Affidavit of Mr. Anthony Karanja. The Applicant asserts that the transfer will serve the interests of justice.
4. The Respondent, JOHN BARCHELEI, is the accused person before the lower court matter. He is currently in custody at Kericho G.K. Prison. He is opposed to the application for transfer to Tamu Law Courts . He averred that he lives in Kericho County and that he has no faith in Tamu Law Courts.
5. Two issues therefore arise for determination;
i . Whether this Court has jurisdiction to transfer a criminal case from one subordinate court to another;
ii. Whether the Applicant has established sufficient grounds to warrant the transfer of Kericho CMCC Sexual Offence Case No. E109 of 2025 to Tamu Law Courts;
6. Section 81 of the Criminal Procedure Code grants the High Court power to transfer criminal cases from one subordinate court to another. In particular, Section 81(1)(d) provides that the High Court may act where it is made to appear that;
“it is expedient for the ends of justice that an order should be made.”
7. Section 81(1)(e) further empowers the High Court to transfer a case where it appears that the transfer “will tend to the general convenience of the parties or witnesses.” This Court is therefore properly seized of jurisdiction to determine the application.
8. The discretion to transfer a criminal case must be exercised judicially, based on facts, and in the interests of justice. The burden lies on the Applicant to demonstrate that the transfer is necessary and expedient. The Applicant has advanced the following reasons
a) Geographical convenience. All parties and witnesses reside in Koisagat Village, which is nearer to Tamu Law Courts than to Kericho Law Courts. Section 81(1)(e) specifically recognizes the convenience of parties and witnesses as a valid ground for transfer. The court takes judicial notice that Tamu is closer to Fort Ternan area than Kericho town. Reduced travel distances minimize costs, fatigue, and the risk of witnesses failing to attend court.
b) Administrative practice. Previously, matters from Fort Ternan were handled at Tamu Law Courts. The DPP has issued administrative directions to this effect. While administrative convenience alone is not a sufficient ground, when coupled with geographical reality and the interest of justice, it becomes a relevant factor.
c) There is no prejudice to the trial. The matter has not commenced. No witnesses have testified. A transfer at this stage will not disrupt an ongoing trial, nor will it cause any prejudice to the accused. The accused’s right to a fair hearing under Article 50 of the Constitution remains protected regardless of the venue, provided the court is competent and impartial.
9. The Respondent’s opposition is based on lack of faith in Tamu Law Courts . This is a general statement unsupported by any specific facts. No allegation of bias, incompetence, or any other concrete reason has been tendered to show that Tamu Law Courts would not afford the Respondent a fair trial.
10. The Respondent has not demonstrated any real danger of bias. On the contrary, Tamu Law Courts is a court of equal competent jurisdiction, presided over by qualified magistrates. The transfer will not deprive the Respondent of any constitutional protections.
11. Considering all factors, this Court finds that the balance tilts in favour of granting the transfer.
12. The upshot of the foregoing analysis is that the Applicant’s Notice of Motion dated 27 th January 2026 is merited. Accordingly, this Court makes the following orders;
a) Kericho Chief Magistrate’s Court Sexual Offence Case No. E109 of 2025 be and is hereby transferred to Tamu Law Courts for hearing and final determination.
b) The Chief Magistrate, Kericho, to cause the original lower court file to be transmitted forthwith to the Senior Principal Magistrate court, Tamu Law Courts, for mention on 11/03/2026.
c) The Respondent, John Barchelei, be produced before Tamu Law Courts on the next mention date to take directions on the hearing of the matter.
d) The Officer in Charge, Kericho G.K. Main Prison, shall facilitate the production of the Respondent before Tamu Law Courts on the scheduled date.
13. Orders accordingly.
Dated, signed and delivered at Kericho this 5 th day of March, 2026.
J. K. SERGON
JUDGE
In the Presence of :-
C/Assistant – Rutoh
Maundu for O.D.P.P./Applicant
No Appearance for the Respondent
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2. The application is expressed to be brought under Section 81(1)(d), (e), (f), (i), (2) and (3) of the Criminal Procedure Code, Cap 75 Laws of Kenya. It is supported by an affidavit sworn by ANTHONY KARANJA , a Prosecution Counsel in the Office of the Director of Public Prosecutions.
3. The Applicant’s case is set out in the Notice of Motion and the Supporting Affidavit of Mr. Anthony Karanja. The Applicant asserts that the transfer will serve the interests of justice.
4. The Respondent, JOHN BARCHELEI, is the accused person before the lower court matter. He is currently in custody at Kericho G.K. Prison. He is opposed to the application for transfer to Tamu Law Courts . He averred that he lives in Kericho County and that he has no faith in Tamu Law Courts.
5. Two issues therefore arise for determination;
i . Whether this Court has jurisdiction to transfer a criminal case from one subordinate court to another;
ii. Whether the Applicant has established sufficient grounds to warrant the transfer of Kericho CMCC Sexual Offence Case No. E109 of 2025 to Tamu Law Courts;
6. Section 81 of the Criminal Procedure Code grants the High Court power to transfer criminal cases from one subordinate court to another. In particular, Section 81(1)(d) provides that the High Court may act where it is made to appear that;
“it is expedient for the ends of justice that an order should be made.”
7. Section 81(1)(e) further empowers the High Court to transfer a case where it appears that the transfer “will tend to the general convenience of the parties or witnesses.” This Court is therefore properly seized of jurisdiction to determine the application.
8. The discretion to transfer a criminal case must be exercised judicially, based on facts, and in the interests of justice. The burden lies on the Applicant to demonstrate that the transfer is necessary and expedient. The Applicant has advanced the following reasons
a) Geographical convenience. All parties and witnesses reside in Koisagat Village, which is nearer to Tamu Law Courts than to Kericho Law Courts. Section 81(1)(e) specifically recognizes the convenience of parties and witnesses as a valid ground for transfer. The court takes judicial notice that Tamu is closer to Fort Ternan area than Kericho town. Reduced travel distances minimize costs, fatigue, and the risk of witnesses failing to attend court.
b) Administrative practice. Previously, matters from Fort Ternan were handled at Tamu Law Courts. The DPP has issued administrative directions to this effect. While administrative convenience alone is not a sufficient ground, when coupled with geographical reality and the interest of justice, it becomes a relevant factor.
c) There is no prejudice to the trial. The matter has not commenced. No witnesses have testified. A transfer at this stage will not disrupt an ongoing trial, nor will it cause any prejudice to the accused. The accused’s right to a fair hearing under Article 50 of the Constitution remains protected regardless of the venue, provided the court is competent and impartial.
9. The Respondent’s opposition is based on lack of faith in Tamu Law Courts . This is a general statement unsupported by any specific facts. No allegation of bias, incompetence, or any other concrete reason has been tendered to show that Tamu Law Courts would not afford the Respondent a fair trial.
10. The Respondent has not demonstrated any real danger of bias. On the contrary, Tamu Law Courts is a court of equal competent jurisdiction, presided over by qualified magistrates. The transfer will not deprive the Respondent of any constitutional protections.
11. Considering all factors, this Court finds that the balance tilts in favour of granting the transfer.
12. The upshot of the foregoing analysis is that the Applicant’s Notice of Motion dated 27 th January 2026 is merited. Accordingly, this Court makes the following orders;
a) Kericho Chief Magistrate’s Court Sexual Offence Case No. E109 of 2025 be and is hereby transferred to Tamu Law Courts for hearing and final determination.
b) The Chief Magistrate, Kericho, to cause the original lower court file to be transmitted forthwith to the Senior Principal Magistrate court, Tamu Law Courts, for mention on 11/03/2026.
c) The Respondent, John Barchelei, be produced before Tamu Law Courts on the next mention date to take directions on the hearing of the matter.
d) The Officer in Charge, Kericho G.K. Main Prison, shall facilitate the production of the Respondent before Tamu Law Courts on the scheduled date.
13. Orders accordingly.
Dated, signed and delivered at Kericho this 5 th day of March, 2026.
J. K. SERGON
JUDGE
In the Presence of :-
C/Assistant – Rutoh
Maundu for O.D.P.P./Applicant
No Appearance for the Respondent
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