REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KITUI CRIMINAL MISC. APPLICATION NO. 32 OF 2018 ALEX OKALO......................................................................APPLICANT VERSUS REPUBLIC........................................................................RESPONDENT RULING 1. Alex Okalo, the Applicant, approached this Court by way of Notice of Motion seeking transfer of Kitui SPMCR Case Number 2051 of 2016 to either Ngong, Kajiado or Nairobi Law Courts for trial. 2. The application is premised on grounds that: From the Complainant’s statement it appears that the alleged offence was committed either in Nairobi or Kajiado County; the property alleged to have been offered for sale per the Complainant’s statement has base at Kitengela, in Kajiado; The Applicant works for gain in Rongai, Kajiado County hence finds it onerous, oppressive, unfair and unjustified to travel all the way to Kitui; potential witnesses are members of staff at the UN Offices Gigiri Nairobi. That the Applicant intends to invite the Court to visit the site of the property that had purportedly been offered for sale by the Complainant to ascertain its existence. 3. The application is opposed by the State. No. 77037 Corporal Elkana Mogire swore an affidavit in reply where he deposed emphasizing what is provided in Section 71 of the Criminal Procedure Code. He denied the allegation that the Complainant resides at Kajiado and averred that he is a resident of Kitui working for the County Government of Kitui as an internal auditor. He denied the allegation that witnesses to be called work for the UN Gigiri. 4. The Application was disposed of by way of written submissions that I have duly taken into consideration. 5. The ordinary place of trial is provided for by Section 71 of the Criminal Procedure Code that stipulates that: “Subject to the provisions of section 69, and to the powers of transfer conferred by sections 79 and 81, every offence shall ordinarily be tried by a court within the local limits of whose jurisdiction it was committed, or within the local limits of whose jurisdiction the accused was apprehended, or is in custody on a charge for the offence, or has appeared in answer to a summons lawfully issued charging the offence.” And, where it cannot be discerned as to where the offence took place, Section 74 of the Criminal Procedure Code comes into play. It provides thus: “When— (a) it is uncertain in which of several local areas an offence was committed; or (b) an offence is committed partly in one local area and partly in another; or (c) an offence is a continuing one, and continues to be committed in more than one local areas; or (d) an offence consists of several acts done in different local areas, it may be tried by a court having jurisdiction over any of those local areas.” 6. The charge is silent on the specific place within the Republic of Kenya that the offence is alleged to have been committed. There is however a copy of a transaction credit advice by the Kenya Commercial Bank of Kenya LTD issued at Kitui. A sum of Kshs. 50,000/= was deposited by Robert Nguli in Account No. 1137914912 in the name of Zacheus Oketch alleged to be an Advocate and the Applicant’s accomplice. This is of course subject to proof by the Prosecution. It is argued by the Respondent that the Applicant was arrested in Kitui
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where he had been summoned by the Director of Criminal Investigations an allegation that was refuted by the Applicant. 7. A perusal of the copy of the charge sheet availed by the Applicant shows that the Applicant was released on cash bail of Kshs. 10,000/=. To be released on bail the Applicant must have been required to appear before the police. Ordinarily an individual only appears before a police officer having been arrested or summoned. 8. The offence is alleged to have been committed following a phone call. It is therefore not certain as to where exactly the offence was committed. Therefore the State was justified in having the Applicant charged in the County where he appeared to answer the charges that were to be preferred against him. 9. In the premises the application herein fails and is accordingly dismissed. 10. It is so ordered. Dated, Signed and Delivered at Kitui this 26th day of July, 2018. L. N. MUTENDE JUDGE
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