Jean Emmanuel Morlon v Republic

4. By a ruling thereon dated 10th March 2025, the subject matter of this ruling, the trial court found that there were compelling reasons advanced by the prosecution to enable her deny the applicant his right to bail. 5. By a Notice of Motion thereon dated 18th March 2025, the applicant moved the court for the following orders : a. That the court call for and examine the record and proceedings before Hon Njeri Thuku in E 037 of 2025 JKIA for purposes of satisfying itself as to the correctness legality and propriety of the proceedings and order issued on 10th March 2025 b. That the court be pleased to vary alter review and otherwise to set aside the orders denying bail and to find that the same were not justifiable c. That the court be pleased to substitute the impugned order with fresh orders admitting the applicant to bail on such terms and conditions that the court may find just and reasonable d. That this court find that the court at JKIA lacks jurisdiction to hear and determine this matter and subsequently be pleased to order the transfer of the matter to either Kibera Law Courts which is seized of the jurisdiction or to such other court as the court may deem appropriate. 6. The application was grounded on the fact that the applicant was arrested at his residence in Nanyuki on the 3rd of February 2025 and not taken to court until 5th when he was presented at JKIA through misc. Application No E 016 of 2025 for extension of pretrial detention for 21 days , wherein the court granted 12 days. 7. It was contended that by dint of the Ob no 15/29/1/2025 of Wilson Police station, the alleged offence was committed within Wilson police station area which is not geographically covered by JKIA and that throughout the period the matter has been in that court, the applicant had been treated unfairly and with obvious bias making the applicant apprehensive that he will not be accorded a just and fair trial . 8. The application was supported by the affidavit of Mr. Wandugi K Karathe in which he deposed that the applicant was arrested by the DCI Officers from Wilson Police station from Nanyuki and confined at Langata Police Station due to a compliant from some foreigners that he had obtained the sum of US $ 120,000 from them while within Wilson Airport Area and was not presented to court until the 5th of February 2025where the court allowed the police to detain him for a further 12 days. 9. Being dissatisfied by the said order, the applicant sought recourse to this court in misc. E 003 of 2025 which granted the same bond and subsequently he was arraigned in court on 24 the day of February 2025where he pleaded not guilty and the State objected to his realise on bond through an affidavit sworn by SGT Thomas Othoo in which he confirmed that the matter originated from Wilson airport area and therefore by dint of sections 71 and 72 of the CPC the court at JKIA suffered complete want of jurisdiction . 10. It was deposed that the trial court had exhibited strong bias against the applicant which had created very strong apprehension that the applicant won’t be accorded fair trial as shown by the facts that the court during the pretrial detention the prosecution deliberately failed to serve the motion till the matter was called out and the court overlooked the applicant’s objection at the ambush. 11. It was contended that the at plea taking the applicant was served with a charge sheet with 12 counts while the court had one with 14 counts and that the court in some way became aware of the dichotomy and offered to give the applicant a copy, ignoring the prejudice the same was being placed . https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14498/eng@2025-06-17 2

page 2 of 8

12. That on the 24th day of February the court declined to grant the applicant bail on the basis that the prosecution had established compelling reasons relying on an affidavit that had been objected to for being inadmissible while relying on article 159 of the constitution yet the issues raised were not technicalities but substantive legal infractions as the documents relied upon in the affidavit of Othoo were in a foreign language without translation and inadmissible. 13. It was contended further that the trial court admitted that she sought refuge in the use of artificial intelligence without any legal provision for such undertaking and further proceeded to use and act on matters that were stated to be in the probation report which had not been presented to the applicant so as to enable the same comment thereon. In considering the application for bond the court commenced with the erroneous presumption that the charges related to huge consignment of gold which was a fallacious presumption deliberately propped up so as to deny bail, as the allegations merely referred to a contract for transportation. 14. That the applicant sought to be supplied with copies of the duly signed witness statements, which the court declined without assigning any good or justifiable reason thereby denying the applicant the right to fair trial . 15. It was contended that the allegation of the possibility of witness interference was unsubstantiated and that the said witness was evidently out of the country and that the supporting photos were not shown to had been lifted from the applicant’s mobile phone nor was there any connection with the applicant. 16. In response to the said application , the respondent filed grounds of opposition in which it was stated that the applicants counsel was misleading court by stating that the trial court denied the applicant bond for the sole reason of not having a fixed abode in Kenya whereas the court gave a detailed ruling having considered the argument by both parties and that the right to bail was not absolute . Submissions 17. On behalf of the applicant, Mr. Wandugi submitted that in denying the applicant bail, the court relied on AI without any rules and that the court did not have jurisdiction as the offence took place in Wilson Airport which under section 71 and 72 of Criminal Procedure Code should have been filed at either Kibera or Milimani. It was submitted that filing the matter at JKIA was a case of forum shopping . 18. On the issue of bail , the court relied upon the affidavit which was filed in disregard to the law which could not be cured under Article 159 of the Constitution. On the denial of bail the court accepted documents which were in foreign language which had not been supplied to the applicant and that the quantity of gold which formed the basis of the courts ruling was not part of the charge sheet and that having made a finding that the affidavit in opposing bail was wrong, the court should not have relied upon the same on the basis of article 159 of the Constitution , 19. It was contended that there were no compelling reasons advanced by the prosecution as the allegation of witnesses’ interference was not substantiated. It was further contended that there was no provision for filing of grounds of opposition in criminal matters. 20. Ms Kariuki for the State submitted that the right to bail was not absolute and that the prosecution satisfied the court that there were compelling reasons which included the fact that the applicant was a flight risk as he was holding two passports and that there was interference with witnesses and that there was no error in the decision to deny bail so this court can not interfere with the same as was stated in Stephen Lesinko versus Prosecutor. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14498/eng@2025-06-17 3

page 3 of 8

21. It was however conceded that JKIA did not have jurisdiction over Wilson area from where the applicant was arrested. Determination 22. For record purposes, the applicant herein was initially detained on the strength of the order issued by the trial court in Misc. Criminal Application no E016 of 2025 wherein the court ordered his detention for 12 days and when he approached this court for revision of the said order, the court granted the same bail pending his formal charge. 23. The applicant was there after charged as stated herein and denied bail in a ruling dated 10th March 2025 and the subject of this ruling. In denying bail , the court found that the prosecution had proved witness interference and in finding so the court had this to say:- ” 63. Mr Wandugi urged the court to disregard the statement Didier made to the swiss police. It is in French but court take judicial notice of the advancement made in courts in the use of technology such as virtual court. The court also take judicial notice of the use of artificial intelligence within the court system. This is currently in use within the Kenyan Judiciary through the use of Microsoft Teams, which records proceedings and transcribes them in real time 24. 64. Courts have moved from the dark days of having to be stuck or waiting for Godot in order to make sense of the information presented in court. While the jury is still out as to what extent AI can be used in Kenyan judiciary and there are not yet hard and fast rules, it is time that stakeholders gathered and drafted a bill to regulate the use of (artificial intelligent) AI in court …. 65. All the above is to say that Didier’s statement to the Swiss Police to the extent of witness interference presents a c compelling picture. He fled from Kenya because there was a contract killer with Didier’s head for a target, it was a death threat. This compounded with the fact that the threats are targeted to his wife and child are factors which the court cannot ignore “. There are therefore two issues for determination in this matter: a. Whether the trial court had jurisdiction to try this matter b. Whether the decision of the trial court to deny the applicant bond was a regular one c. What order should the court make herein. 25. The revision jurisdiction of this court is granted under Article 165(6) which gives the court the supervisory jurisdiction over the subordinate courts and section 362 of the Criminal Procedure Code which empowers the court to call for and examine the record of any criminal proceedings of a subordinate court for purposes of satisfying itself as to the correctness, legality or propriety of any findings ,sentence or order recorded or passed and as to the regularity of any proceedings of any such court. 26. In the case of Samuel Otieno Obado & 6 others v Republic [ 2019] eKLR the court stated that only a party who has no right of appeal may seek review and that where there is a procedure provided for redress of a grievances, that procedure ought to be specifically followed. 27. In the case of George Aladwa Amwera v Republic [2016] eKLR this court had this to say on the exercise of the revisionary jurisdiction thus: “ In exercising supervisory jurisdiction under Article 165(6) the court does not exercise appellate jurisdiction and therefore cannot review or reweigh evidence upon which the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14498/eng@2025-06-17 4

page 4 of 8

determination of the lower court is based, it can only demolish the order which it considers erroneous or without jurisdiction and which constitutes gross violation of the fair administration of justice but does not substitute its own view to those of the inferior tribunals. In Veerappa Pillai v Remaan Ltd the Supreme court of India has this to say:“The supervisory powers is obviously intended to enable the High court use them in grave cases where the subordinate tribunal or bodies or officer acts wholly without jurisdiction or excess of it or in violation of the principles of natural justice or refuses to exercise jurisdiction vested in them or there is an apparent error on the face the record and such action, omission, error or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide and large as to enable the High Court to convert itself into a Court of Appeal and examine for itself the correctness of the decision impugned and decide what the proper view on the order be made…..” The above principle is applicable to the exercise of revisional jurisdiction of the court wherein the court too cannot sit in appeal and re-appreciate the evidence. It is only exercised to correct the manifest error in the order of the subordinate courts but should not be exercised in a manner that turns the Revisonal court into appeal. The jurisdiction cannot be exercised mainly because the lower court has taken a wrong view of the law or misapprehended the evidence tendered. See Pathummaa & Anor V. Muhammed 1986 (2) SCC 585 where it was stated that in revisional jurisdiction the High Court would not be justified in substituting its own view for that of the magistrate on question of facts.” 28. On the jurisdiction of the court, it was the applicant’s contention that since the compliant leading to his arrest was lodged at Wilson Police Station, the trial court did not have geographical jurisdiction to handle the matter. It is therefore upon this basis that the applicant is seeking that the matter be transferred, put different is whether the magistrate courts and in particular the trial court herein, jurisdiction is limited to a geographical area. 29. In the case of Daniel Kinyua Karimi versus Republic [2021] eKLR the court had this to say on the issue of jurisdiction “ 13. The Magistrates’ Courts Act no 26 of 2011 confers jurisdiction in criminal cases in the following terms: “6. Criminal jurisdiction of a magistrate's court A magistrate's court shall have and exercise such jurisdiction and powers in proceedings of a criminal nature as may be conferred on it by — 14. (a) the Criminal Procedure Code (Cap. 75); or (b) any other written law.” Part IV – of the Criminal Procedure Code makes provisions relating to all criminal investigations place of trial. There is the general authority granted by Section 66 to courts to deal with persons charged with offences committed within Kenya who are within their local limits. There is the specific at Section 67 where https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14498/eng@2025-06-17 5

page 5 of 8

an accused person is required to be sent to the district where the offence was committed. Then there is now Section 71 which lays the law thus: “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.” 14. The law refers to the court in whose local limits … the thing happened. What does that mean? In the ordinary course of business the Judiciary has demarcated courts with territorial of geographical jurisdictions. For good reasons, I believe both administrative and to ensure access to justice for persons within those jurisdictions. Jurisdiction is therefore not just the power to conduct judicial proceedings but the power to conduct those proceedings within the jurisdiction of that court i.e the geographical area within which the court may exercise its authority (Black’s Law Dictionary 10th Edition) or as put by the Concise Oxford English Dictionary 12th Edition - ‘the territory or sphere over which the legal authority of a court…extend[s]’.” 30. I have noted that the applicant has lawfully appeared before the trial court in answer to a summons lawfully issued charging with offence and therefore the court has assumed lawful jurisdiction and may not be faulted for exercising the same. I have also noted that the Gazette Notice number 3337 dated 5/5/2016 establishing the court did not designate any local limits with Nairobi and therefore finds no merit on the submission by the applicant that the court lacked jurisdiction on the matter in view of section 71 above noting that in the new constitutional dispensation, districts have been substituted with county of which Nairobi is one. 31. On the other issues raised by the applicant as grounds for transfer, the court in Stanley Muia Makau v Republic [2020] eKLR had this to say: “ In Joseph Korir alias David arap Chonjo v Republic [2018] eKLR that relied on Kamande & 3 Others vs. Republic [2014] eKLR the court held thus: “ When giving consideration to an application for the transfer of a case, the court will assess whether the applicant’s apprehension was reasonable and founded on sufficient material. The reason for laying emphasis on these factors is that the court has a duty to encourage trust in the integrity and independence of the Judiciary. Therefore allegations which may be directed at Judicial Officers, alleging bias and lack of fairness must not therefore be accepted without there being substantive evidence to back them. If a court was too quick to accept allegations of bias directed against its officers, without first demanding proper substantiation, it would erode the very foundation upon which the judiciary was founded. At the same time, the court must balance this consideration with the need to ensure that justice is not only done, but also seen to be done.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14498/eng@2025-06-17 6

page 6 of 8

13. It would therefore necessitate that before invoking Section 81 of the CPC, the matter be looked at wholesomely for a change of venue ought not to be granted whimsically, so as not to put into question the independence and integrity of the judiciary. I have seen the lower court file and taken into account the intended witnesses and the nature of evidence to be presented before the trial court. The right to a fair trial is guaranteed by article 50 (1) of The Constitution of Kenya and it requires "a fair, speedy and public hearing before an independent and impartial court or tribunal established by law. As analyzed earlier, there is nothing to show that in any of the steps taken towards the prosecution of the applicant, there has been any affront to his sacred right to a fair trial. 14. On the other hand "Forum shopping" typically refers to the act of handpicking a venue in which to try a case for purposes of gaining some unfair advantage or opportunity to throw the dice in one's favour. Such an action would be a subversion of justice with a resultant undermine in the principle of equal protection of the law. In McShannon v. Rockware Glass Ltd. [1978] AC 795, Lord Diplock rejected existence of forum non conveniens (the nonconvenience doctrine positing the discretionary power that allows courts to dismiss a case where another court, or forum, is much better suited to hear the case) in common law stating that for the interests of all the parties and for the ends of justice, the jurisdiction must be exercised - however desirable it may be on grounds of public interest or public policy that the litigation should be conducted elsewhere and not in the English courts. 15. Having evaluated the material placed before me, I am not satisfied that it discloses sufficient justification for change of venue of the hearing in a court other than the trial court. A mere allegation without substantiation is not enough. See John Brown Shilenje v Republic Nairobi Cr. Appeal No. 180 of 1980 where Trevelyan J., stated that the test is that of, “Reasonable apprehension in the applicants or any right thinking person’s mind that a fair trial might not be heard before the magistrate. Mere allegations will not suffice; there must be reasonable grounds for allegations.” 16. A careful perusal of section 81 of The Magistrates Courts Act, shows that the provision clearly enunciates that the paramount norms of transfer of venue are "expediency" and "the interests of justice." I find that the aspersions that the accused will not get a fair trial are unsubstantiated, hence the selection of venue cannot be granted. 32. I associate myself with the above statement and find and holds that the applicant has not placed adequate material before me to enable me order the transfer of the case to another court on allegations of bias and unfair treatment. 33. The applicant’s other contentions as regard the conduct of the trial court are issues best handled through a formal recusal application before the said court to enable the court make a determination thereon and not by way of revision application. 34. On the trial court’s decision complained of the only issue which the applicant raised and which I find has merit was the fact the same relied on what she considered Artificial Intelligence but without giving https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14498/eng@2025-06-17 7

page 7 of 8

the applicant the opportunity of commenting thereon and or offering his response thereto. This is an issue which was open to the applicant to take up with the court on an application for review and not to this court by way of revision in the first instance. 35. I would therefore refer the file back to the trial court where the applicant will be at liberty to file an application for review of the order complained of herein for the same to granted an opportunity to comment of the outcome of the used of artificial intelligence in analysing the document produced by the prosecution and which was in a foreign language and or for the same to offer an alternative interpretation thereon. 36. By reason of the matters contained herein, I find and hold that this application does not satisfy the provisions of section 362 of the CPC and that the issues of the conduct of the trial court as against the applicant are issues which must first be raised before the same by way of a formal application for recusal. 37. The applicant on the issue for denial of bond is at liberty to make an application in the first instance before the trial court for review before the same approaches this court on the issue of denial of bail on the ground that the court relied on artificial intelligence without giving the same an opportunity to see what instrument was used by the court and for the applicant if he so wishes to offer an alternative interpretation thereof for courts determination in exercise of his rights to free and fair hearing. 38. I therefore find no merit on the application herein which I hereby dismiss and it is so ordered DATED SIGNED AND DELIVERED THIS 17th DAY OF JUNE 2025 J. WAKIAGA JUDGE In the presence of https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14498/eng@2025-06-17 8

page 8 of 8