(Arising from Mombasa Criminal Sexual Offences Case No. E001 of 2023 Republic-Vs-Omari Ali Alias Mwalimu)
Introduction
This court is being called upon to determine the Notice of Motion application dated 9 th May, 2025, where the Applicant sought the following orders: - Spent.
Spent.
THAT this Honourable Court be pleased to call for and examine the record of the proceedings in Mombasa Criminal Sexual Offences Case No. E001 of 2023 Republic-Vs-Omari Ali Alias Mwalimu for the purpose of satisfying itself on the correctness, legality or propriety of the Ruling delivered by Hon. Alex Ithuku, (CM) on 16 th April 2025.
THAT the Court be pleased to review, vary, reverse and/or alter the orders relating to Mombasa Criminal Sexual Offences Case No. E001 of 2023 Republic -Vs- Omari Ali Alias Mwalimu and permit the prosecution/applicant herein to continue with its case and the same be heard on merit.
The Application was premised on the following grounds and the annexed affidavit of MARTIN K. MBOTE and any other further grounds to be adduced during the hearing thereof: -
Mombasa Criminal Sexual Offences Case No. E001 of 2023 Republic – Versus - Omari Ali Alias Mwalimu was instituted on 6 th January 2025.
The Prosecution has always been ready to proceed with the case at all the material times the same came up for hearing before Hon. Alex Ithuku,(CM) and his predecessor Hon. Martha Mutuku, (CM) in Court 1 - Mombasa Law Courts;
Dr. Khadija Abu Mondhar, a Medical Officer/Practitioner from Port Reitz Sub-County Hospital was bonded to testify on both 12 th March 2025 and 16 th April 2025, however unfortunately on both the above dates she had since proceeded on her Annual Leave. She had applied for 30 days Annual Leave which was approved by the Medical Superintendent Port-Reitz Hospital with effect as from 10 th March 2025 to 24 th April 2025 both days inclusive.
The Prosecution informed the Trial Magistrate of their predicament and sought an adjournment to both the above stated dates and most importantly on 16 th April 2025 when the matter was coming up for hearing. However, the Learned the Trial Magistrate in his Ruling Dated 16 th April 2025 made orders in Mombasa Criminal Sexual Offences Case No. E001 of 2023 Republic vs. Omari Ali Alias Mwalimu wherein he declined to grant the Director of Public Prosecutions an adjournment and ordered that the prosecution to either proceed with the matter, withdraw the charges or close the prosecution case.
The matter was scheduled for Ruling on 22 nd May 2025 before the Trial Court wherein the Trial Magistrate was expected to give his ruling on whether the Accused has a case to answer or not, a move that is highly prejudicial to the prosecution case as it can reasonably be foreseen that the Accused will not be placed on his defence and will more likely than not be acquitted under Section 210 of the Criminal Prosecution Code.
Dr. Khadijah Abu Mondhar the only remaining crucial prosecution witness who has since resumed work from her annual leave and is ready and willing to come to court to testify has not testified.She is willing to testify and produce the Minor's treatment notes (already marked in the Court record for identification as PMFI-2), Minor’s Post Rape Care (PRC) Form (already marked in the Court Record for identification as PMFI-3), Minor's Medical Examination Report(P3) Form (already marked in the Court Record for identification as PMFI-4), and lastly Minor’s Medical Laboratory Test Results (already marked in the Court Record for identification as PMFI-5).
PW1 a boy aged 4 years eight months old then on 20 th December 2025 was allegedly was sodomized by the Accused. PW1 gave his voire dire unsworn testimony on 14 th August 2023. PW2 the minor's mother testified on 22 nd January 2025. PW3 and PW4 testified on 16 th January 2025. PW5 the taking over Investigating Officer testified and produced the minor's birth certificate as Prosecution Exhibit 1. It was instructive to note that on both the said dates of 12 th March 2025 and 16 th April 2025 in place of Dr. Khadija Abu Mondhar the Prosecution availed Dr. Nandwa from the same Port-Reitz Hospital who usually is the one sent every Wednesday to testify in all courts in Mombasa that a Medical Officer/Practitioner from the said facility is required to testify on behalf of himself and in his other colleagues in appropriate circumstances. However the Accused insisted on Dr. Khadija Abu Mondhar to appear in person, a request that the Prosecution had no issue with it just that their predicament was that on both dates Dr. Khadija Abu Mondhar was still on her annual leave. She has since resumed work from her annual leave and is ready and willing to come to court to testify and ensure proper justice is done on its own merit.
The Prosecution had not been able to obtain certified copy of the said Ruling and Order Dated 16 th April 2025 and proceedings for the same day after several attempts at the Registry became futile since the file was with the Trial Magistrate in his Chambers.
The Learned Magistrate’s ruling was marred with impropriety, illegally, errors and requires correction as whereas the learned trial magistrate made a finding that the matter is delayed and that he had given a last adjournment on 12 th March 2025, the record reflects that the prosecution has always been ready to proceed with the case at all the material times the same came up for hearing before Hon. Alex Ithuku, (CM) and his predecessor Hon. Martha Mutuku, CM in Court 1 Mombasa Law Courts.
The trial court did not take cognisance of the dates dates the court was not siting as per the proceedings of 4 th April 2023, 13 th June 2023,17 th October 2023, 17 th November 2023, 20 th March 2024, 21 st May 2024, and 11 th November 2024.
The Learned Magistrate’s ruling was marred with impropriety, illegality, errors and requires correction as whereas the Learned Magistrate made a finding that the matter is delayed and that he had given a last adjournment on 12 th March 2025, the record reflects the delay was mostly occasioned by the Court not sitting a record 7 times for one reason or another and the prosecution is not to blame whatsoever since we have been ready to proceed with the case at all material times the same came up for Hearing.
The trial court while exercising its discretion, elevated the right to an expeditious trial for the respondents to be higher that the right to a fair trial for the prosecution and the victim minor which is protected under Article 25of the Constitution of Kenya, 2010;
The trial court while exercising its discretion, relied on technicalities as opposed to substantive justice as required under Article 159 (2) of the Constitution of Kenya, 2010.
ANALYSIS AND DETERMINATION
This Court has considered the Application dated 9 th May, 2025, there was no response by the Respondent. The issue for determination is whether the Applicant made a case for grant of the order sought in the application.
Article 165 (6) and (7) of the Constitution provide 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.
Section 362 of the Criminal Procedure Code 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.
Section 364 (1)(b) of the Criminal Procedure Code provides: -
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: -
in the case of any other order other than an order of acquittal, alter or reverse the order.
The Applicant’s position is that the trial Magistrate in his Ruling Dated 16 th April 2025 made orders in Mombasa Criminal Sexual Offences Case No. E001 of 2023 Republic vs. Omari Ali Alias Mwalimu wherein he declined to grant the Director of Public Prosecutions an adjournment and ordered that the prosecution to either proceed with the matter, withdraw the charges or close the prosecution case without considering the predicament the Prosecution was in. Dr. Khadija Abu Mondhar, a Medical Officer/Practitioner from Port Reitz Sub-County Hospital was bonded to testify on both 12 th March 2025 and 16 th April 2025, however unfortunately on both the above dates she had since proceeded on her Annual Leave. She had applied for 30 days Annual Leave which was approved by the Medical Superintendent Port-Reitz Hospital with effect as from 10 th March 2025 to 24 th April 2025 both days inclusive. The Prosecution informed the Trial Magistrate of their predicament and sought an adjournment to both the above stated dates and most importantly on 16 th April 2025 when the matter was coming up for hearing. The matter was scheduled for Ruling on 22 nd May 2025 before the Trial Court wherein the Trial Magistrate was expected to give his ruling on whether the Accused has a case to answer or not, a move that is highly prejudicial to the prosecution case as it can reasonably be foreseen that the Accused will not be placed on his defence and will more likely than not be acquitted under Section 210 of the Criminal Prosecution Code.
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. The Trial Magistrate’s decision was marred with impropriety, illegally, errors and requires correction as whereas the learned trial magistrate made a finding that the matter is delayed and that he had given a last adjournment on 12 th March 2025, the record reflects that the prosecution has always been ready to proceed with the case at all the material times the same came up for hearing before Hon. Alex Ithuku, (CM) and his predecessor Hon. Martha Mutuku, CM in Court 1 Mombasa Law Courts.
My inclination is that courts should be astute to avoid hindrances that will deter them from interpreting the Constitution in a manner that is faithful to its essence and its underlying spirit. It is as I see it a matter for the subordinate courts or tribunals to exercise some degree of scrutiny in every case before making a decision which limits the enjoyment of the fundamental rights. For completeness the main flaw in this proceedings is that the session magistrate in so far as possible exercised discretion to cancel the accused bail terms without adherence to Article 10 on National values and principles of governance, Article 47 (1) on fair administrative action and Article (50) of the Constitution on fair trial rights. The downgrading of the right to bail of the accused person without notice and an opportunity accorded for her to be heard strongly lays bare the errors, impropriety, irregularity, and illegality of the decision in the textual of Section 362 of the criminal procedure code. The aspect of the decision to place the accused on her defence and to simultaneously cancel her right to bail without any breaches cognizable in law provided in the bond terms was at odds with the superior court jurisprudence implicit in the very structure of our constitution and applicable laws. The applicable provisions being section 123(A) of the Criminal Procedure Code. The other identifiable issue is the duty to give reasons for the impugned decision. There is as much a judicial duty for session judges /magistrate to give reasons in appropriate cases as there is otherwise a duty to act judiciously in every adjudication of disputes such as to hear evidence, submissions, arguments of the parties, and finally to analyze the evidence, points of determination, and render a decision.
It is trite that the prosecution bears the burden of proving every element of the offence an accused person is charged with and in this case, prove that the accused herein defiling the minor contrary to section 8 of the Sexual Offences Act No. 3 of 2006 and an alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act No. 3 of 2006. It is also given that a court has a discretion to summon any witness and equally, the prosecution is at liberty to avail evidence at any stage before the close of the prosecution case.
It’s not lost that errors may be made by a judge or magistrate on any one of these procedural parameters while directing and applying facts to the law but it is always permissible to give reasons. In the review or revisionary and appeals jurisdiction courts context the adequacy on inadequacy of the reasons which forms the basis to challenge the decision. At that point reasons distinguish a judicial decision from that made arbitrarily. In the instant case judging by the records of the trial court erred in to giving the Prosecution to address its case being that the Court was already informed of the predicament the Prosecution was experiencing. It is also to be remembered that the trial court must balance the scales of justice between the complainant and the accused.
Conclusion and Disposition
The upshot is that I reinstate the Prosecution’s case. The Criminal matter is sent back to the Trial Court to have the matter heard from the prosecution case with no further adjournments. In view of the foregoing I find the Notice of Motion application dated 9 th May, 2025 is merited and the same is allowed as prayed.matter be mentioned before the trial court on 17th July to fix a hearing date.
The REGISTRY to alert the respondents.
IT IS SO ORDERED ACORDINGLY.
RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS ……27th.…………DAY OF …………June……………..…….., 2025
……………………………………………………..
HON. LADY JUSTICE W. M. KAGENDO
(JUDGE)
HIGH COURT OF KENYA AT MOMBASA
(CRIMINAL DIVISION)
In the presence of:
M/s. Bebora, Court Assistant;
……………Mr. SIRIMA FOR THE Applicant
Introduction
This court is being called upon to determine the Notice of Motion application dated 9 th May, 2025, where the Applicant sought the following orders: - Spent.
Spent.
THAT this Honourable Court be pleased to call for and examine the record of the proceedings in Mombasa Criminal Sexual Offences Case No. E001 of 2023 Republic-Vs-Omari Ali Alias Mwalimu for the purpose of satisfying itself on the correctness, legality or propriety of the Ruling delivered by Hon. Alex Ithuku, (CM) on 16 th April 2025.
THAT the Court be pleased to review, vary, reverse and/or alter the orders relating to Mombasa Criminal Sexual Offences Case No. E001 of 2023 Republic -Vs- Omari Ali Alias Mwalimu and permit the prosecution/applicant herein to continue with its case and the same be heard on merit.
The Application was premised on the following grounds and the annexed affidavit of MARTIN K. MBOTE and any other further grounds to be adduced during the hearing thereof: -
Mombasa Criminal Sexual Offences Case No. E001 of 2023 Republic – Versus - Omari Ali Alias Mwalimu was instituted on 6 th January 2025.
The Prosecution has always been ready to proceed with the case at all the material times the same came up for hearing before Hon. Alex Ithuku,(CM) and his predecessor Hon. Martha Mutuku, (CM) in Court 1 - Mombasa Law Courts;
Dr. Khadija Abu Mondhar, a Medical Officer/Practitioner from Port Reitz Sub-County Hospital was bonded to testify on both 12 th March 2025 and 16 th April 2025, however unfortunately on both the above dates she had since proceeded on her Annual Leave. She had applied for 30 days Annual Leave which was approved by the Medical Superintendent Port-Reitz Hospital with effect as from 10 th March 2025 to 24 th April 2025 both days inclusive.
The Prosecution informed the Trial Magistrate of their predicament and sought an adjournment to both the above stated dates and most importantly on 16 th April 2025 when the matter was coming up for hearing. However, the Learned the Trial Magistrate in his Ruling Dated 16 th April 2025 made orders in Mombasa Criminal Sexual Offences Case No. E001 of 2023 Republic vs. Omari Ali Alias Mwalimu wherein he declined to grant the Director of Public Prosecutions an adjournment and ordered that the prosecution to either proceed with the matter, withdraw the charges or close the prosecution case.
The matter was scheduled for Ruling on 22 nd May 2025 before the Trial Court wherein the Trial Magistrate was expected to give his ruling on whether the Accused has a case to answer or not, a move that is highly prejudicial to the prosecution case as it can reasonably be foreseen that the Accused will not be placed on his defence and will more likely than not be acquitted under Section 210 of the Criminal Prosecution Code.
Dr. Khadijah Abu Mondhar the only remaining crucial prosecution witness who has since resumed work from her annual leave and is ready and willing to come to court to testify has not testified.She is willing to testify and produce the Minor's treatment notes (already marked in the Court record for identification as PMFI-2), Minor’s Post Rape Care (PRC) Form (already marked in the Court Record for identification as PMFI-3), Minor's Medical Examination Report(P3) Form (already marked in the Court Record for identification as PMFI-4), and lastly Minor’s Medical Laboratory Test Results (already marked in the Court Record for identification as PMFI-5).
PW1 a boy aged 4 years eight months old then on 20 th December 2025 was allegedly was sodomized by the Accused. PW1 gave his voire dire unsworn testimony on 14 th August 2023. PW2 the minor's mother testified on 22 nd January 2025. PW3 and PW4 testified on 16 th January 2025. PW5 the taking over Investigating Officer testified and produced the minor's birth certificate as Prosecution Exhibit 1. It was instructive to note that on both the said dates of 12 th March 2025 and 16 th April 2025 in place of Dr. Khadija Abu Mondhar the Prosecution availed Dr. Nandwa from the same Port-Reitz Hospital who usually is the one sent every Wednesday to testify in all courts in Mombasa that a Medical Officer/Practitioner from the said facility is required to testify on behalf of himself and in his other colleagues in appropriate circumstances. However the Accused insisted on Dr. Khadija Abu Mondhar to appear in person, a request that the Prosecution had no issue with it just that their predicament was that on both dates Dr. Khadija Abu Mondhar was still on her annual leave. She has since resumed work from her annual leave and is ready and willing to come to court to testify and ensure proper justice is done on its own merit.
The Prosecution had not been able to obtain certified copy of the said Ruling and Order Dated 16 th April 2025 and proceedings for the same day after several attempts at the Registry became futile since the file was with the Trial Magistrate in his Chambers.
The Learned Magistrate’s ruling was marred with impropriety, illegally, errors and requires correction as whereas the learned trial magistrate made a finding that the matter is delayed and that he had given a last adjournment on 12 th March 2025, the record reflects that the prosecution has always been ready to proceed with the case at all the material times the same came up for hearing before Hon. Alex Ithuku, (CM) and his predecessor Hon. Martha Mutuku, CM in Court 1 Mombasa Law Courts.
The trial court did not take cognisance of the dates dates the court was not siting as per the proceedings of 4 th April 2023, 13 th June 2023,17 th October 2023, 17 th November 2023, 20 th March 2024, 21 st May 2024, and 11 th November 2024.
The Learned Magistrate’s ruling was marred with impropriety, illegality, errors and requires correction as whereas the Learned Magistrate made a finding that the matter is delayed and that he had given a last adjournment on 12 th March 2025, the record reflects the delay was mostly occasioned by the Court not sitting a record 7 times for one reason or another and the prosecution is not to blame whatsoever since we have been ready to proceed with the case at all material times the same came up for Hearing.
The trial court while exercising its discretion, elevated the right to an expeditious trial for the respondents to be higher that the right to a fair trial for the prosecution and the victim minor which is protected under Article 25of the Constitution of Kenya, 2010;
The trial court while exercising its discretion, relied on technicalities as opposed to substantive justice as required under Article 159 (2) of the Constitution of Kenya, 2010.
ANALYSIS AND DETERMINATION
This Court has considered the Application dated 9 th May, 2025, there was no response by the Respondent. The issue for determination is whether the Applicant made a case for grant of the order sought in the application.
Article 165 (6) and (7) of the Constitution provide 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.
Section 362 of the Criminal Procedure Code 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.
Section 364 (1)(b) of the Criminal Procedure Code provides: -
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: -
in the case of any other order other than an order of acquittal, alter or reverse the order.
The Applicant’s position is that the trial Magistrate in his Ruling Dated 16 th April 2025 made orders in Mombasa Criminal Sexual Offences Case No. E001 of 2023 Republic vs. Omari Ali Alias Mwalimu wherein he declined to grant the Director of Public Prosecutions an adjournment and ordered that the prosecution to either proceed with the matter, withdraw the charges or close the prosecution case without considering the predicament the Prosecution was in. Dr. Khadija Abu Mondhar, a Medical Officer/Practitioner from Port Reitz Sub-County Hospital was bonded to testify on both 12 th March 2025 and 16 th April 2025, however unfortunately on both the above dates she had since proceeded on her Annual Leave. She had applied for 30 days Annual Leave which was approved by the Medical Superintendent Port-Reitz Hospital with effect as from 10 th March 2025 to 24 th April 2025 both days inclusive. The Prosecution informed the Trial Magistrate of their predicament and sought an adjournment to both the above stated dates and most importantly on 16 th April 2025 when the matter was coming up for hearing. The matter was scheduled for Ruling on 22 nd May 2025 before the Trial Court wherein the Trial Magistrate was expected to give his ruling on whether the Accused has a case to answer or not, a move that is highly prejudicial to the prosecution case as it can reasonably be foreseen that the Accused will not be placed on his defence and will more likely than not be acquitted under Section 210 of the Criminal Prosecution Code.
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. The Trial Magistrate’s decision was marred with impropriety, illegally, errors and requires correction as whereas the learned trial magistrate made a finding that the matter is delayed and that he had given a last adjournment on 12 th March 2025, the record reflects that the prosecution has always been ready to proceed with the case at all the material times the same came up for hearing before Hon. Alex Ithuku, (CM) and his predecessor Hon. Martha Mutuku, CM in Court 1 Mombasa Law Courts.
My inclination is that courts should be astute to avoid hindrances that will deter them from interpreting the Constitution in a manner that is faithful to its essence and its underlying spirit. It is as I see it a matter for the subordinate courts or tribunals to exercise some degree of scrutiny in every case before making a decision which limits the enjoyment of the fundamental rights. For completeness the main flaw in this proceedings is that the session magistrate in so far as possible exercised discretion to cancel the accused bail terms without adherence to Article 10 on National values and principles of governance, Article 47 (1) on fair administrative action and Article (50) of the Constitution on fair trial rights. The downgrading of the right to bail of the accused person without notice and an opportunity accorded for her to be heard strongly lays bare the errors, impropriety, irregularity, and illegality of the decision in the textual of Section 362 of the criminal procedure code. The aspect of the decision to place the accused on her defence and to simultaneously cancel her right to bail without any breaches cognizable in law provided in the bond terms was at odds with the superior court jurisprudence implicit in the very structure of our constitution and applicable laws. The applicable provisions being section 123(A) of the Criminal Procedure Code. The other identifiable issue is the duty to give reasons for the impugned decision. There is as much a judicial duty for session judges /magistrate to give reasons in appropriate cases as there is otherwise a duty to act judiciously in every adjudication of disputes such as to hear evidence, submissions, arguments of the parties, and finally to analyze the evidence, points of determination, and render a decision.
It is trite that the prosecution bears the burden of proving every element of the offence an accused person is charged with and in this case, prove that the accused herein defiling the minor contrary to section 8 of the Sexual Offences Act No. 3 of 2006 and an alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act No. 3 of 2006. It is also given that a court has a discretion to summon any witness and equally, the prosecution is at liberty to avail evidence at any stage before the close of the prosecution case.
It’s not lost that errors may be made by a judge or magistrate on any one of these procedural parameters while directing and applying facts to the law but it is always permissible to give reasons. In the review or revisionary and appeals jurisdiction courts context the adequacy on inadequacy of the reasons which forms the basis to challenge the decision. At that point reasons distinguish a judicial decision from that made arbitrarily. In the instant case judging by the records of the trial court erred in to giving the Prosecution to address its case being that the Court was already informed of the predicament the Prosecution was experiencing. It is also to be remembered that the trial court must balance the scales of justice between the complainant and the accused.
Conclusion and Disposition
The upshot is that I reinstate the Prosecution’s case. The Criminal matter is sent back to the Trial Court to have the matter heard from the prosecution case with no further adjournments. In view of the foregoing I find the Notice of Motion application dated 9 th May, 2025 is merited and the same is allowed as prayed.matter be mentioned before the trial court on 17th July to fix a hearing date.
The REGISTRY to alert the respondents.
IT IS SO ORDERED ACORDINGLY.
RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS ……27th.…………DAY OF …………June……………..…….., 2025
……………………………………………………..
HON. LADY JUSTICE W. M. KAGENDO
(JUDGE)
HIGH COURT OF KENYA AT MOMBASA
(CRIMINAL DIVISION)
In the presence of:
M/s. Bebora, Court Assistant;
……………Mr. SIRIMA FOR THE Applicant