Masinde v Republic (DPP) [2022] KEHC 13711 (KLR)

Masinde v Republic (DPP) (Miscellaneous Criminal Application E071 of 2021) [2022] KEHC 13711 (KLR) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13711 (KLR)

Republic of Kenya

In the High Court at Kakamega

Miscellaneous Criminal Application E071 of 2021

PJO Otieno, J

October 7, 2022

Between

Edward Masinde

Applicant

and

Republic (DPP)

Respondent

Ruling

1. Pursuant to the provisions of article 50(1), 50(2) (a) and sections 8 and 9 of the Fair Administrative Actions Act, the applicant seeks from the court orders that the orders by the trial court revising bond terms be reviewed or set aside and that the case be transferred from the particular court to a different court for hearing and final disposal on the basis that the particular magistrate is biased. The application sets out grounds upon which the orders are sought but is not supported by any affidavit at all.

2. The applicant however filed written submissions on the November 5, 2021 but the respondent viewed the application as one for review which the court can deal with without any address by the parties and therefore it never filed any responses nor submissions.

3. In the submissions, the applicant sets out the sequence of events he considers discloses bias. The disclosed occurrences are to the effect that on the May 3, 2021, the applicant failed to attend court on account of alleged ill health. The advocate offered an explanation and matter was adjourned to the June 3, 2021 when the court, without prompting by the prosecution, demand medical evidence, which were then availed but the court, without consent, ordered bail of kshs 10,000/= but without relate that new bail to the earlier one deposited in court.

4. Essentially, the application faults the court for demanding for proof of sickness on a date the applicant did not attend court and proceeding to impose additional terms without prompting from the Prosecution. It is then added that there was a real danger of bias as the trial court appears to have executed the threat administered to the applicant by the complainant a day before the June 3, 2022 that he would not return home.

Issues analysis and determination 5. From the record of the application, the submissions and perusal of the trial court file, the issues for determination is whether there was/is evident in the record of the lower court a reason for revision and whether the trial magistrate needs to be disqualified by this court from continuing to handle the matter.

6. The court has perused the record of the trial court on the April 9, 2021, May 33, 2021 and June 3, 2021. In the record it is minuted:-“May 3, 2021Before Hon E Malesi PMCourt prosecutor LukuluCourt assistant EvansAccused absentElung’ata: Accused unwell. We pray for a mention date.Court: Mention on June 3, 2021. E Malesi – PMMay 3, 2021June 3, 2021Before Hon E Malesi PMCourt prosecutor Lukulucourt assistant EvansAccused presentcourt: Hearing on August 25, 2021. Treatment notes not available. Accused to post fresh cash bail of kshs 10,000. 00E Malesi – PMJune 3, 2021”

7. It is clear that the applicant was absent on both April 9, 2021 and May 3, 2021 and when he attended on June 3, 2021 the court observed that there was not availed any medical reports and the court then directed that he posts fresh cash bail of kshs 10,000/=.

8. I read the record and direction by the court to disprove the conduct of the applicant of failing to attend court on account of sickness, and failing to produce the evidence of such sickness. The accusation against the court appears to be that the documents were availed but the court ignored same. That is a grave accusation but when the intention is to show that the documents indeed exist, the question rests with the trial court and not subject to supervision by this court.

9. On the other hand, if the intention is to show bias against the trial court, the application for recusal is due before the trial court. It is not for a superior court to order a trial Magistrate to recuse herself from a matter. That question must therefore be presented before the trial. This court declines to consider whether or not the court was biased.

10. In conclusion, the application lacks merit and is dismissed. Let the matter be remitted to the trial court to enable this very old matter be progressed towards closure.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 7TH DAY OF OCTOBER 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:No appearance for the applicantMs. Chala for the RespondentCourt Assistant: Kulubi