Francis Kipketer Kemei v Republic [2010] KEHC 2262 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

Miscellaneous Criminal Application 9 of 2010

FRANCIS KIPKETER KEMEI......................................................APPLICANT

=VERSUS=

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

{An Appeal from the decision of the Principal Magistrate, Hon. G.M. Mutiso in the

Principal Magistrate’s Court at Kapsabet – Kapsabet P.M.CR. NO. 2930 of 2006}

R U L I N G

I.Introduction

1.       This Court received written information that a Magistrate at a subordinate Court was

conducting two separate Criminal Court case trials. What was unique about the trial is that in one case the accused A person was charged with the offence of

(i) Threatening to Kill (Contrary to Section

223(1) of the Penal Code the Complainant B.

2. In the second case the accused B person is charged with the offence of

(ii)Grievous Harm Contrary to Section234 of the Penal Code;Incitement to violence Contrary toSection 96(b) of the Penal Code; thecomplainant being A.

3. The accused B was Complainant B in the first case whilst Complainant A in the second case was accused A in the first case.

4. It therefore means that at one stage, the trial Magistrate had the Complainant as an accused and vice versa. The same touching on the same subject matter.

5. On receiving this report, the State suggested that in one file the Magistrate ought to have disqualified himself of the said case

II.Findings

6. This is most certainly a conflict of interest and an embarrassing situation.

7. Section 80 Criminal Procedure Code gives this Court powers to change the venue of a case where it appears to the High Court:

a). “That a fair and impartial trial cannot

be had in any Criminal subordinate

Court thereto”

8. This Court certainly finds that the two trials would not be heard fairly and impartially.

9. This Court hereby orders that the Kapsabet PMCR 2930/2006 file

Republic =vrs= David Koech alias Ezekiel together with

Kapsabet PMCR 3150/2006

Republic =vrs= Francis Kipketer Kemey

Be and is hereby removed transferred from the Courts at Kapsabet and are duly placed before the Chief Magistrate at Eldoret to be allocated separate Magistrates to hear the two (2) trials.

10. This Court further orders that the trial begin

De novo

Dated this 22nd day of April 2010 at Eldoret.

…………………………………………………

M.A. ANG’AWA

JUDGE

Advocate

(i)Mr. Omwenga, an Advocate instructed by the firm of M/s Omwenga & Co.

Advocate for the Applicant – Present

(ii)A. Oluoch, an Advocate for the State instructed by the Attorney General

for the Respondent