Automated Summary
Key Facts
The applicant, Walter Muleko Okwaki, is charged with defilement under section 8(1)(2) and an indecent act with a child under section 11(1) of the Sexual Offences Act (No.3) of 2006. The alleged offense occurred in Khwisero Division, Kakamega County. The applicant requested transferring the case from Siaya Principal Magistrate's Court to Kakamega for convenience and witness availability. The prosecution acknowledged the offense's location in Kakamega but did not oppose the transfer to Butere. The court granted the transfer to Butere Principal Magistrate's Court, prioritizing proximity to the crime scene and fairness to both parties.
Issues
- The second issue centered on selecting the optimal court for transfer when multiple options exist. The court acknowledged the applicant's right to a fair trial but ruled transferring the case to Kakamega (as requested) was unjustifiable due to proximity concerns, ultimately ordering transfer to Butere Principal Magistrate's Court instead of Kakamega.
- The court considered whether the criminal case should be transferred to Kakamega under section 81(d) of the Criminal Procedure Code, which allows transfer for the convenience of parties and witnesses. The applicant argued the offence occurred in Kakamega and his witnesses were there, while the prosecution conceded the location of the crime but questioned the necessity of transferring to Kakamega over closer courts like Mumias or Butere.
Holdings
- Criminal Case No.865 of 2015, Republic vs Walter Muleko Omwakwe pending before the Principal Magistrate's Court at Siaya is hereby transferred to the principal Magistrate's Court at Butere for hearing and disposal.
- Order to be served on the office of the Director of Public Prosecutions at Siaya and Kakamega Counties for information and action.
Remedies
- The court ordered the transfer of Criminal Case No.865 of 2015 from the Principal Magistrate's Court at Siaya to the principal Magistrate's Court at Butere for hearing and disposal.
- The court directed that the order be served on the office of the Director of Public Prosecutions at Siaya and Kakamega Counties for information and action.
Legal Principles
The court applied the principle of fair trial under Article 50 of the Constitution and the discretionary power to transfer criminal cases under section 81 of the Criminal Procedure Code, prioritizing convenience and justice for all parties.
Cited Statute
- Constitution of Kenya, 2010
- Criminal Procedure Code
Judge Name
E. C. Mwita
Passage Text
- S.81(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) 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 lend to the general convenience of the parties and witnesses, or e) that such order is expedient for the ends of justice or is required by any provision of this Code; It may order 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." (emphasis).
- I have perused the charge sheet which is annexed to the applicant's affidavit, and the particulars of the offence are clear that the offence was committed at Khushiku which is within Kakamega County. That would mean that the place of trial be within Kakamega County for a fair and convenient trial and therefore the applicant has himself sought to have his case tried at the Chief Magistrate's Court at Kakamega.
- Criminal Case No.865 of 2015, Republic vs Walter Muleko Omwakwe pending before the Principal Magistrate's Court at Siaya is hereby transferred to the principal Magistrate's Court at Butere for hearing and disposal.