Joseph Kaviti v Republic [2016] KEHC 1167 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

MISC APPLICATION NO. 32 OF 2016

JOSEPH KAVITI ..............................................................................APPLICANT

VERSUS

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

RULING

By  an undated Notice of Motion  application filed on 21st March, 2016, the applicant, Joseph Kaviti, has applied for leave to file an application  seeking to have is case, Shanzu Principal  magistrate’s Criminal Case No 507 of 2013, Republic versus Joseph Kaviti,  transferred from Shanzu laws courts to Mombasa law courts.

According to Mr Ayodo, learned state counsel, Shanzu  law court has two magistrates and all the  applicant should  do  is to seek to have  the trial magistrate in this case recuse herself from hearing his case and only  she declines, then he can proceed to this court for  redress by way of appeal or revision.

To this, the applicant indicated he had no problem with court No1 at Shanzu law court.

In consideration, and having listened to both learned counsel for the state and applicant/accused, I have also perused the record from the lower court file, application and supporting affidavit.

I agree with the learned counsel for the state that the applicant ought to have made his application before the trial magistrate indicating the reasons he wants to have the case transferred from her court for consideration by herself. He can only approach this court if the trial magistrate declines to recuse herself from hearing his case and he feels aggrieved by that decision.  This is so as to discourage situations where parties would be forum shopping.

I therefore  strike out the applicant’s  undated Notice  of Motion  application  and direct that the applicant makes his  application  to have the case transferred from the current trial  court to another or for the trial magistrate to recuse herself from hearing the case before  the said magistrate.

It therefore follows that the Shanzu Principal Magistrate Criminal case No 507 of 2013, Republic Vs Joseph Kaviti be returned and placed before  the trial magistrate for further orders.

Ruling signed, dated and delivered this 3rd day of October, 2016.

D. O. CHEPKWONY

JUDGE

In the presence of:

Mr Ayodo for the state

Applicant in person

C/clerk- Kiarie