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High CourtDismissedNot stated in the judgment (criminal revision concerning Tamu SPM Criminal Case No. E267 of 2025)

Babugun Kokeloh v Republic

High Court of Kenya
28 July 2026
6,258 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court refused to stop a criminal land case, confirming that civil and criminal proceedings can run at the same time in Kenya.

What this practically means

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Executive summary

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The Applicant, Babugun Kokeloh, the accused in Tamu SPM Criminal Case No. E267 of 2025 charged with forcible detainer contrary to Section 91 of the Penal Code in respect of land parcel Kisumu/Fort Ternan/1457, moved the High Court by notice of motion under Articles 50, 159(2)(d), 165(6) and 165(7) of the Constitution and Sections 362, 364 and 365 of the Criminal Procedure Code, seeking review of the trial Magistrate's ruling of 1st July, 2026 dismissing his application to stay the criminal proceedings pending determination of Tamu MCELC No. E039 of 2025, an Environment and Land Court suit concerning the estate of the late Joram Okello Ngar. He argued that the criminal charge depended on questions of land ownership falling within the ELC's exclusive jurisdiction, that the trial court misappreciated documentary evidence, predetermined the case and acted with bias, and that concurrent proceedings risked conflicting determinations. The Respondent, through Prosecution Counsel Mercy Mutheu Muema, contended that revision does not extend to merit decisions, that Section 193A CPC permits concurrent criminal and civil proceedings, and that no illegality or irregularity was shown. Justice Joe M. Omido framed three issues and held that revisionary jurisdiction is supervisory and corrective, not appellate; it cannot re-evaluate evidence or substitute the High Court's view for a discretionary merit decision. Section 193A permits parallel proceedings, and the trial court had properly distinguished Araka because the parcels in the criminal and ELC matters differed. No bias or irregularity was demonstrated. The application was dismissed, the interim stay orders discharged, and the trial court directed to proceed with the criminal hearing. No order as to costs was made and the file was closed.

Key legal issues

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01

Scope of the High Court's revisionary jurisdiction under Sections 362, 364 and 365 CPC and Article 165(6) and (7) of the Constitution.

Holding

Revision is supervisory and corrective, confined to correctness, legality, propriety and regularity; it does not extend to merit decisions or re-evaluation of evidence.

Reasoning

The court traced the jurisdiction to Article 165(6) and (7) and Section 362 CPC, distinguished revision from appeal, and relied on its own prior decision in Ogutu and in Muriuki to hold that a revision court cannot delve into the merits or substitute its own view where the trial court exercised judicial discretion after hearing both parties.

p. 23
02

Whether the trial court erred in declining to stay criminal proceedings pending the Environment and Land Court suit.

Holding

No error disclosed: Section 193A CPC permits concurrent criminal and civil proceedings, and the trial court found the subject parcels in the criminal and ELC matters were different, distinguishing Araka.

Reasoning

The court reproduced Section 193A CPC and held that parallel civil proceedings do not deprive the criminal court of jurisdiction. The trial court had examined the green cards, ground report and ELC judgments and found parcel 1457 arose from parcel 422, not parcel 22, and was not shown to be the subject of the pending ELC suit. Whether that conclusion was right or wrong is a matter for appeal, not revision.

p. 29
03

Alleged bias and pre-determination by the trial Magistrate.

Holding

Rejected; no evidence of bias was placed before the Court, and adverse interlocutory findings do not without more demonstrate pre-determination.

Reasoning

The Applicant alleged the Magistrate predetermined the outcome and formed an adverse opinion before trial. The court found no evidence that the Magistrate acted otherwise than judicially, noting she considered the parties' arguments and the material before her, and that dissatisfaction with the outcome is not a basis for revision.

p. 29

Legal principles established

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  • Revisionary jurisdiction under Section 362 CPC is supervisory and corrective, not appellate; it does not permit re-evaluation of evidence or substitution of the High Court's view for a discretionary merit decision of a subordinate court.
  • Under Section 193A CPC, the pendency of parallel civil proceedings on substantially the same issue is not a ground for staying criminal proceedings.
  • A court may only interfere in revision where the subordinate court acted illegally, irregularly, improperly or outside its jurisdiction, not merely because the revision court would have reached a different conclusion.
  • Adverse interlocutory findings do not, without evidence, demonstrate bias or pre-determination by a trial magistrate.

Court orders

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  1. 1.The notice of motion dated 6th July, 2026 is dismissed for lack of merit.
  2. 2.The interim orders of stay issued by the High Court pending determination of the application are discharged.
  3. 3.The trial court shall proceed with the hearing of Tamu SPM Criminal Case No. E267 of 2025, Republic v Babugun Kokeloh, in accordance with the law.
  4. 4.The file is closed.
On appeal from
Principal Magistrate's Court, Tamu (Tamu SPM Criminal Case No. E267 of 2025, Republic v Babugun Kokeloh)
Tamu MCCR/E267/2025
Jurisdiction invoked
Article 165(6) and (7) of the Constitution and Sections 362, 364 and 365 of the Criminal Procedure Code (revisionary/supervisory jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Babugun Kokeloh v Republic", Case Analysis (2026). Not stated in the judgment (criminal revision concerning Tamu SPM Criminal Case No. E267 of 2025). Source: 

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.