Alex Okalo v Republic [2018] KEHC 5125 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITUI

CRIMINAL MISC. APPLICATION NO. 32 OF 2018

ALEX OKALO......................................................................APPLICANT

VERSUS

REPUBLIC........................................................................RESPONDENT

R U L I N G

1. Alex Okalo,the Applicant, approached this Court by way of Notice of Motion seeking transfer of Kitui SPMCR Case Number 2051 of 2016to either Ngong, Kajiadoor Nairobi Law Courtsfor trial.

2. The application is premised on grounds that: From the Complainant’s statement it appears that the alleged offence was committed either in Nairobior Kajiado County;the property alleged to have been offered for sale per the Complainant’s statement has base at Kitengela,in Kajiado;The Applicant works for gain in Rongai, Kajiado Countyhence finds it onerous, oppressive, unfair and unjustified to travel all the way to Kitui;potential witnesses are members of staff at the UN Offices Gigiri Nairobi.That the Applicant intends to invite the Court to visit the site of the property that had purportedly been offered for sale by the Complainant to ascertain its existence.

3. The application is opposed by the State.  No. 77037 Corporal Elkana Mogireswore an affidavit in reply where he deposed emphasizing what is provided in Section 71of the Criminal Procedure Code.He denied the allegation that the Complainant resides at Kajiadoand averred that he is a resident of Kituiworking for the County Government of Kitui as an internal auditor.  He denied the allegation that witnesses to be called work for the UN Gigiri.

4. The Application was disposed of by way of written submissions that I have duly taken into consideration.

5. The ordinary place of trial is provided for by Section 71of the Criminal Procedure Codethat stipulates that:

“Subject to the provisions of section 69, and to the powers of transfer conferred by sections 79 and 81, every offence shall ordinarily be tried by a court within the local limits of whose jurisdiction it was committed, or within the local limits of whose jurisdiction the accused was apprehended, or is in custody on a charge for the offence, or has appeared in answer to a summons lawfully issued charging the offence.”

And, where it cannot be discerned as to where the offence took place, Section 74of the Criminal Procedure Codecomes into play.  It provides thus:

“When—

(a) it is uncertain in which of several local areas an offence was committed; or

(b) an offence is committed partly in one local area and partly in another; or

(c) an offence is a continuing one, and continues to be committed in more than one local areas; or

(d) an offence consists of several acts done in different local areas,it may be tried by a court having jurisdiction over any of those local areas.”

6. The charge is silent on the specific place within the Republic of Kenya that the offence is alleged to have been committed.  There is however a copy of a transaction credit advice by the Kenya Commercial Bank of Kenya LTDissued at Kitui.A sum of Kshs. 50,000/=was deposited by Robert Nguliin Account No. 1137914912in the name of Zacheus Oketchalleged to be an Advocate and the Applicant’s accomplice.  This is of course subject to proof by the Prosecution.  It is argued by the Respondent that the Applicant was arrested in Kituiwhere he had been summoned by the Director of Criminal Investigations an allegation that was refuted by the Applicant.

7. A perusal of the copy of the charge sheet availed by the Applicant shows that the Applicant was released on cash bail of Kshs. 10,000/=.To be released on bail the Applicant must have been required to appear before the police.  Ordinarily an individual only appears before a police officer having been arrested or summoned.

8. The offence is alleged to have been committed following a phone call.  It is therefore not certain as to where exactly the offence was committed.  Therefore the State was justified in having the Applicant charged in the County where he appeared to answer the charges that were to be preferred against him.

9. In the premises the application herein fails and is accordingly dismissed.

10. It is so ordered.

Dated, Signed and Delivered at Kitui this 26th day of July, 2018.

L. N. MUTENDE

JUDGE