EUGENE SITATI v REPUBLIC [2011] KEHC 2130 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA

AT KITALE.

MISC. CRIMINAL APPLICATION NO. 36 OF 2011.

EUGENE SITATI :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT.

VERSUS

REPUBLIC :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT.

R U L I N G.

1.  The applicant was charged before Senior Resident Magistrate’s Court at Lodwar with the offence of stealing by servant contrary to section 281 of the penal code. He was admitted to bail and the case was fixed for mention on 16th May, 2011 and hearing on the 20th June, 2011. The applicant was working as the operations manager of ALSLLodwar before he was arrested and charged. The applicant contends that since he was charged with the offence he became jobless, he does not live in Lodwar, as he is currently based in Kitale. It will therefore be expensive for him to travel to Lodwar for the mentions and for the hearing of the case.

2. Moreover, the applicant contends that he engaged the services of a Senior Advocate, Mr. J.M. Wafulawho is based in Kitale and it will be very expensive to pay the travelling expenses for a senior counsel. Lastly, it was submitted that the complainant who was the applicant’s boss is based in Nairobi and it will be convenient for all parties if Criminal Case SRMCC No. 290/2011 is transferred to Kitale for hearing and determination.

This application is brought pursuant to the provisions of Article 50 (2) (b) of the Constitution of Kenya 2010 which provides that:-

(2) “Every accused person has the right to a fair trial, which includes the right ---------

(b) To have an advocate assigned to the accused person by the State and at State expenses if substantial injustice would otherwise result, and to be informed of this right promptly.”

3. This application was opposed by the State; M/s. Bartoo the learned State Counsel. It was submitted that under section 67 of the CPC, it is provided that an accused person shall be tried where the offence occurred. In this case the offence occurred in Lodwar and that is where the accused person should be tried. Moreover, the applicant has not demonstrated how a trial in Lodwar will not be fair or how it will subject him to substantial injustice. It is the applicant who willingly chose an advocate from Kitale thus he should bear the costs of travelling for his choice of a lawyer.

4. This application brings out an interesting point in the practice under the criminal justice system vis a vis the fundamental rights that are guaranteed in the Constitution of Kenya 2010. The issue is whether an accused person can choose where he should be tried. Under the provisions of Section 72 of the CPC, it is provided as follows:-

“When a person is accused of the commission of an offence by reason of anything which has been done or of any consequence which has ensued, the offence may be tried by a court within the local limits of whose jurisdiction the thing has been done or the consequence has ensued.”

5. In this case the offence which the applicant is charged with occurred in Lodwar. The provisions of Article 50 of the Constitution only guarantee an accused person a fair trial. It does not give an accused person the right to choose the court where his trial should be held. It is the applicant who chose to engage a Senior Counsel from Kitale to represent him; this should be at his own expense. It follows that the applicant should have foreseen the travelling expenses involved for a Senior Advocate. The trial cannot be transferred to suit the convenience of an accused person. Because if that was the case who will bear the costs of transporting the prosecution witnesses? The court has to balance all the interests of all the parties and interpret the provisions of a fair trial purposefully.

6. It is common ground that the applicant was based in Lodwar and that is where the offence took place and where he is facing the charge.  I am of the opinion that allowing this application, would impact negatively on the administration of Criminal Justice. It will also send a dangerous precedent which can snow ball into an avalanche of applications where all the accused persons in the country may wish to transfer their cases to a place of their convenience. I am not persuaded that a trial of the applicant before the Senior Resident Magistrate at Lodwar will not afford him a fair trial or it will result in substantial injustice. The applicant exercised his Constitutional right to choose to be represented by a Senior Advocate from Kitale. It follows that he should bear the cost of his own choice of an advocate.This application thus cannot be allowed and it is hereby dismissed.

Ruling read and signed on this 24th day of June, 2011.

MARTHA KOOME.

JUDGE.