David Kariri Mbugua v Republic

5. He also deposed that the complainant has brought the case before a "friendly" court and that the trial court did not accord his counsel sufficient time to express himself why he wanted the file transferred to Meru County which is in his contention justified his apprehension that he was not likely to get a fair trial. 6. The application is opposed through a Replying Affidavit sworn by P.C Kipkemboi Langat, the investigating officer, sworn on 13 th June, 2018. The investigating officer has deposed that the decision to charge the applicant in Chuka CM's Court was arrived at after communication between the office of DCIO and that of Director of Public Prosecution and that the decision was made in good faith because they have witnesses from Nkubu, Siakago, Meru and Nairobi. In his view Chuka was more central than Tigania. 7. The Respondent has faulted the applicant for being speculative and that he had written several letters complaining about the manner in which investigations were carried out. 8. The investigating officer has further deposed that the applicant's allegations are untrue as they preferred to charge him here in Chuka Law Courts because of its centrality and neutrality given that the offence was committed in Nkubu Law Courts. According to the investigating officer Chuka Law Court is convenient to the accused and witnesses rather than Tigania which is 1 1/2 hours drive from Nkubu as opposed to 40 minutes drive to Chuka. The investigating officer has further deposed that as the office of DCI they have no vested interest in the case and they were only after smooth prosecution free from interference or bias against any party. 9. Mr. Machirah learned counsel for the Respondent submitted that this application is not well grounded as Section 81 of Criminal Procedure Code only provides to situations where a party has cogent grounds that a fair trial is not possible. He contends that an applicant has the burden to discharge on a balance of probability that his apprehension is well grounded. He has faulted the applicant's counsel for adducing facts from the bar that the applicant, the complainant is a friend to court 2. It is submitted that no affidavit has made to that effect and therefore the fact is a mere allegation made from the bar. 10. Mr. Machirah has further contended that the decision of where to charge an accused person was made by the office of Director of Public Prosecution in the exercise of its power and mandate and on that basis, the decision could only be challenged by way of Judicial Review and not through a Notice of Motion. 11. This court has considered this application and the grounds upon which it has been made. I have also considered the response advanced by the office of Director of Public Prosecution and the DCI. The court has powers under the cited provisions of Section 81 of the Criminal Procedure Code which the applicant herein has invoked. This court indeed has a discretion to transfer a case from one court to another "whenever it is made to appear...................... that a fair and impartial trial cannot be hard in any criminal subordinate court." The other ground for transfer is where it is more convenient for parties and witnesses to attend court. The overall objective of the transfer is expediency and ends of justice. 12. The Respondent has submitted that the onus to prove any of the above grounds rests on the applicant which is true. It is a principle of law that whoever alleges must prove. The allegations made by the applicant particularly on the question of fair trial is serious. This is because one of the cardinal and constitutional right of an accused person under Article 50 is the right to a fair trial. A fair trial entails or comprises rights listed under Article 50 (2) which includes a right to presumed innocent until the contrary is proved, right to an advocate, right to adequate time and facilities to prepare for his defence and other rights. I agree with the Respondent's counsel that making mere allegations of bias or any other thing that touches on the right to fair trial is not sufficient. A party making such a serious allegation should back the allegation with cogent and tangible reasons. In my view the reasons advanced by the applicant are merely speculative and besides that counsel for the applicant cannot adduce evidence or facts from the bar that a certain court is biased or friendly to a complainant . In this matter, the complainant is the Judiciary because that is the body that is alleged to have lost revenue. I do not find anything personal on the evidence or facts presented before me about the witnesses or Judicial Officers working at Nkubu Law Courts that shows that they have issues against the applicant. It has not been stated that they lost their personal money. The money allegedly lost belonged to the Judiciary. I do not find basis for the complaint to state that one of the prosecution witnesses is friendly to the trial court. There is nothing personal pointed out by the applicant between any prosecution witnesses and the trial court and it is not enough to just speculate that he may not get fair trial on such shaky grounds. 13. On the ground of the convenience and expediency I do not find that Tigania or any other court in Meru County is more convenient to the applicant and witnesses in this case. He has not challenged the facts deposed by the investigating officer knowing that the witnesses are spread from Nairobi, Siakago, Nkubu and Meru or that Chuka Law Courts is more convenient and central to most witnesses in the case. I agree with the Respondent's counsel that the fact being unchallenged shows that the ground cited in the application is clearly unfounded. The applicant has not satisfied the conditions listed under Section 81 of Criminal Procedure Code to transfer the case from Chuka Law Courts to any other court with competent jurisdiction. 14. The Respondent has raised a technical point which is that in deciding where to charge an accused person, the Director of Public Prosecution exercises its statutory mandate. I find this argument legally sound because really the constitution and statute gives the Director of Public Prosecution the mandate and power to prosecute and the decision of whether or not to prefer charges and where to register those charges rest in that office. If a party feels that the power has not been exercised properly or fairly or that the Director of Public Prosecution has abused his powers by acting ultra vires, the correct or proper forum or way to challenge is through a Judicial Review. The decision to charge the applicant in Chuka Law Courts by the Director of Public Prosecution and DCI can be described as administrative given that they have justified the decision on grounds of convenience and expediency. The applicant has not clearly come out to say that he was prejudiced unfairly by that decision and if his complaint in this application is directed at the prosecution, the trial court or both. If the basis of his application was purely directed at the decision of the Director of Public Prosecution to charge him here in Chuka rather than Meru County, then he ought to have challenged the exercise of the power or mandate granted to the office of Director of Public Prosecution through a Judicial Review. 15. On the other hand if the application is based on the fact that the trial court is unfair or biased against him, the proper way was for the

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applicant to apply for recusal of that court in the same court. The applicant has not stated that he applied for the trial court to recuse itself because he had reason to belief that the court was not fair to him or that he was unlikely to have a fair trial. The issue of biasness therefore has not been established and this court finds that the same are mere allegations and certainly this court cannot act on the basis of such. 16. In the premises this court finds that the application dated 29 th November 2017 lacks in merit and bad in law. The same is for the reasons aforesaid disallowed. Dated, signed and delivered at Chuka this 24th day of July, 2018. R.K. LIMO JUDGE 24/7/2018 Ruling dated, signed and delivered in the open court in presence of Muthomi for applicant and Machirah for Respondent. R.K. LIMO JUDGE 24/7/2018

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