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Original judgment

High Court 2262 of 2010

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} RULING 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 to Section 96(b) of the Penal Code; the complainant 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. 7. This is most certainly a conflict of interest and an embarrassing situation. 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.

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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

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