Republic v Simon Wafula & 2 others

3. There be no Order as to costs. 4. Any further orders this Honourable Court may deem fit. 4. The Application is supported by the affidavit of MARORO NYANG’AU, a Prosecution Counsel, and by the grounds on the face of it. The Applicant avers that the Respondents/suspects were presented before the Bungoma Chief Magistrates Court for plea-taking on 8th September 2025 for the offence of Robbery with Violence contrary to Section 295 as read with Section 296(2) of the Penal Code, but no plea was taken because the Defence Counsel made an Application challenging the court's jurisdiction on the grounds that the cause of action took place at Sirisia Sub-County within Bungoma County and hence the trial should take place at Sirisia. 5. The Applicant objected to the Application before the trial court and urged that the matter be heard and determined in Bungoma County rather than in Sirisia Sub-County, on the basis that justice would not be seen to be served if the case proceeded in Sirisia due to the high level of political interference by politicians affiliated with the Respondents. 6. Additionally, they alluded to the fact that there has been a great deal of witness interference, which would jeopardise the case and divert the ends of justice in this case. 7. It is deposed that the trial court rendered a ruling dated 9th September 2025, allowing the said Application and directing that plea-taking be conducted at Sirisia Sub-County on 10th September. The subordinate court further extended the Respondent’s cash bail in Misc. Criminal App. No. E150 of 2025. 8. It is averred that the effect of the ruling will be prejudicial to the Prosecution’s case because of the likelihood of political and witness interference, which could instil genuine fear and anxiety in potential Prosecution witnesses, thereby diverting the course of justice in this case. 9. That further, the trial magistrate did not consider whether the Application made by defence counsel was properly made, as it ought to have been lodged before the High Court. It is urged that the Court grants the prayers sought in the interests of justice. 10. In response to the Application, the 1st Respondent, SIMON WAFULA, filed a Replying Affidavit dated 13th September 2025, opposing the Application on the grounds that it is incompetent, lacks merit, and ought to be dismissed, and that the orders sought are overtaken by events because the Respondents entered a plea before the Chief Magistrate’s Court at Bungoma on 8th September 2025, where they also applied to the court to defer plea-taking and to transfer the matter to Sirisia Law Courts for plea-taking and hearing. 11. He deposed that their Application was based on the ground that the incident forming the basis of the complaint occurred at Namwela Area, which is less than 5 kilometres from Sirisia Law Courts, which is competent to hear and determine the case. 12. They also pleaded that the decision to bring the case to Bungoma Law Courts was laced with malice and was calculated to punish them financially, since they would be forced to bear heavy transport costs to attend court and to bring witnesses to Bungoma Law Courts, which is located more than 30 kilometres from Namwela Area, yet all witnesses in the case, including the suspects, are based in Namwela Area, within walking distance of Sirisia Law Courts. 13. The Respondents refuted the Prosecution's claims that there is a likelihood of political interference if the case is heard at Sirisia Law Courts. They argued that all witnesses, including suspects, are located https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5525/eng@2026-04-23 2

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in Namwela Area near Sirisia Law Courts, thereby opposing the case being heard in Bungoma Law Courts. 14. It is their case that the Prosecution failed to provide evidence of political interference at Sirisia Law Courts. They vehemently refuted this claim and asserted that the court in Bungoma found that Sirisia Law Courts have jurisdiction and thereby ordered the closure of the case in Bungoma with a transfer to Sirisia. 15. The 1st Respondent averred that under Sections 71 and 72 of the Criminal Procedure Code, the place of trial is usually where the alleged offence occurred, and that magistrate courts can transfer cases if offences fall outside their jurisdiction under Sections 78 and 79 of the Criminal Procedure Code. He denied that the requested orders would prejudice the prosecution and asserted that preventing the transfer would cause prejudice by increasing witnesses’ expenses and infringing their rights under Article 50(2)(k). 16. The Applicant then filed a Supplementary Affidavit, sworn by No. 124414 PC ERIC KAI MWATATA of DCI Bumula Sub-Count, dated 9th October 2025. He avers that the case involves Robbery with Violence contrary to Section 296 (2) of the Penal Code, and that the investigations were initially handled at Chwele Police Station. 17. He avers that the complainants, Dedan Murenga Simiyu and Elijah Wamalwa, reported offences, including robbery and malicious damage, arising from the same day and transaction, and that there had been multiple prior criminal reports against the Respondents, including stabbing incidents, assault, malicious damage, and threats, reported at Namwela Police Post and Sirisia Police Station. Consequently, the complainant lacks confidence in Sirisia Law Courts due to perceived political and witness interference and requests that the case be heard at Bungoma Law Courts for better justice. 18. It is deposed that Criminal Case No. E568 of 2024 at the Sirisia courts, involving Simon Wekulo and Mathews Juma, the suspects/1st and 2nd Respondents, was characterised by irregularities and victim intimidation, leading to a loss of confidence in the judicial process. That, from his perusal of the court file and at plea-taking, the full circumstances, including a politically motivated attack context, were never disclosed. 19. It is asserted that, as the Investigating Officer, the deponent believes the matter should be heard at the Bungoma Law Courts to ensure impartiality and fairness, and that no prejudice will be suffered by the Respondents if the case is transferred to the Bungoma courts. 20. In a rejoinder, the Respondents filed a Supplementary Affidavit dated 30th October 2025, sworn by the 1st Respondent, SIMON WAFULA, in which they deposed that the police officer's affidavit should be dismissed as an afterthought, as it seeks to introduce new issues not originally raised in the trial court. It is averred that the complaints do not establish any connection to the parties involved, and the allegations regarding threats are entirely unsubstantiated. 21. It is deposed that there is no evidence that a related criminal case in Sirisia will interfere with this matter. Furthermore, the judicial officer who handled the criminal case has been transferred, and Sirisia has a sufficient number of competent magistrates to hear the case fairly. 22. They assert that the complainant is a police officer based in Nairobi, so hearing the case in Sirisia will not cause him any undue hardship. Accordingly, there is no valid reason for the court to interfere with the trial court's original decision. It is urged that the Court should allow the case to proceed at Sirisia Law Courts as previously ordered. 23. The Application was canvassed through written submissions which are on record. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5525/eng@2026-04-23 3

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The Submissions 24. The Prosecution submitted that there is deep-rooted political interference in Sirisia, which cripples local investigators and the judicial process. They argue that this is borne out by the fact that DCI Headquarters and Bumula DCI had to step in just to secure the suspects' arrest. Counsel cited Articles 47, 48, 50, 159, and 165 of the Constitution, and Section 362 of the Criminal Procedure Code, to establish the High Court's supervisory powers to review subordinate court decisions and ensure the fair administration of justice. 25. Counsel for the Applicant points to a related case in Criminal No. E568 of 2024 in Sirisia, arguing that it was rushed and decided while the victim was still hospitalised, thereby demonstrating a lack of procedural fairness. 26. Counsel submitted that the strongest legal argument in their Application relies on the principle that "justice must not only be done, but be seen to be done." Citing the case of RPM vs. PKM, Nairobi Divorce Cause No. 154 of 2012, on judicial bias, Counsel for the Applicant argues that systemic interference has destroyed public confidence in the Sirisia Law Courts. They assert that a reasonable person would have a "reasonable apprehension of bias" if the case were heard there, and that even the mere appearance of bias is sufficient to justify moving the case. 27. Counsel urged the High Court to exercise its supervisory powers to keep the case in Bungoma, arguing that it is the only venue where the trial will be free from local interference and where public trust in the judicial outcome can be maintained. 28. The Defence Counsel submitted on two issues in opposition, namely whether the application is competent and whether it has merit. It is submitted that the Application seeking to stop the transfer of the criminal case to Sirisia Law Courts should be dismissed because it is both incompetent and lacking in merit. 29. Counsel for the Respondent submits that the Applicant seeks to stay proceedings and review a Ruling in Bungoma Criminal Case No. E1094/2025. By the time the Applicant filed its request, the Bungoma file had already been closed and physically transferred to Sirisia. It is contended that Sirisia had already opened a new, active file in Criminal Case No. E382/2025 an hour before the Application was filed. Accordingly, the orders sought are impossible to grant because the Bungoma file no longer exists, rendering the Application frivolous and overtaken by events. 30. Counsel submitted that the Application lacks merit also because the Court should determine whether it has proper jurisdiction in the face of unproven allegations. It is submitted that the Law on Jurisdiction under Sections 71 and 79 of the Criminal Procedure Code stipulates that offences must be tried where they occurred (locus criminis). In this case, the alleged crime occurred in Namwela, which is only 5km from Sirisia but over 30km from Bungoma. 31. Counsel argues that the trial magistrate was legally correct in transferring the case to Sirisia to serve the interests of justice, to spare the Accused persons from unfair travel costs, and to ensure easy access for local witnesses. 32. On the Applicant’s claim that the case had to be kept in Bungoma to avoid political and witness interference in Sirisia, Counsel dismisses this as baseless speculation, noting that the Applicant provided no concrete evidence or specific details and did not even have the Investigating Officer swear an affidavit to support these claims. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5525/eng@2026-04-23 4

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33. Counsel further submits that the appropriate way to address witness interference is through strict bail or bond conditions, not by changing the venue of the trial. Furthermore, the Respondents have already appeared in Sirisia twice without incident, which demonstrates that the fears of interference are unfounded. 34. Counsel submits that the High Court cannot review a dead file and that the lower court acted entirely within the law by sending the case to the correct territorial jurisdiction. Analysis And Determination 35. From the submissions before me, the main issue for my determination is whether the Applicant has made out a case for the prayers sought in the Application 36. The High Court is vested with supervisory powers by dint of Article 165 of the Constitution, which provides as follows: 165. 37. The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial, or quasi-judicial function, but not over a superior court. This Court’s revisionary jurisdiction is further set out in the Criminal Procedure Code, which also outlines the manner in which such revisionary powers are to be exercised. The relevant provisions state: 362. Power of the High Court to Call for Records The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of any such subordinate court. 38. Section 364 further sets out the following: 364 Powers of the High Court on Revision 1. 2. In the case of a proceeding in a subordinate court, the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may – a. In the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence; b. In the case of any other order other than an order of acquittal, alter or reverse the order. No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defense: Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned. 3. Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed that might have been inflicted by the court which imposed the sentence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5525/eng@2026-04-23 5

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4. Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction. 5. When an appeal lies from a finding a sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed. 39. Thus, this Court has the power to call for the records of the subordinate courts, examine them, and satisfy itself as to their correctness, legality and appropriateness. The question for this Court is whether the trial court erred in rendering its Ruling on 9th December 2025 by allowing the criminal matter to be transferred from Bungoma to Sirisia. 40. The trial court in Bungoma CMCR E1094 of 2025, in its Ruling, found that it lacked territorial jurisdiction over the matter and transferred the matter to the Sirisia Law Courts. The Criminal Procedure Act expressly provides for the transfer of suits from one court to another. 41. Section 81 of the Criminal Procedure Code provides as follows: 81. Power of High Court to change venue 1. Whenever it is made to appear to the High Court— a. that a fair and impartial trial cannot be had in any criminal court subordinate thereto; or b. that some question of law of unusual difficulty is likely to arise; or c. that a view of the place in or near which any offence has been committed may be required for the satisfactory trial of the offence; or d. that an order under this section will tend to the general convenience of the parties or witnesses; or e. that such an order is expedient for the ends of justice or is required by any provision of this Code, it may order i. that an offence be tried by a court not empowered under the preceding sections of this Part but in other respects competent to try the offence; ii. that a particular criminal case or class of cases be transferred from a criminal court subordinate to its authority to any other criminal court of equal or superior jurisdiction; iii. that an accused person be committed for trial to itself. 2. The High Court may act on the report of the lower court, or on the application of a party interested, or on its own initiative. 3. Every application for the exercise of the power conferred by this section shall be made by motion, which shall, except when the applicant is the Director of Public Prosecutions, be supported by affidavit. 4. An accused person making any such application shall give to the Director of Public Prosecutions notice in writing of the application, together with a copy of the grounds on which it is made, and no order shall be made on the merits of the application unless https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5525/eng@2026-04-23 6

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at least twenty-four hours have elapsed between the giving of notice and the hearing of the application. 5. 42. When an accused person makes any such application, the High Court may direct him to execute a bond, with or without sureties, conditioned that he will, if convicted, pay the costs of the prosecutor. In Dennis Ndolo Mutunga v Republic [2019] KEHC 345 (KLR) Kemei J held thus: “ It is evidently clear that section 81 of the Code allows a high court to transfer proceedings from one subordinate to another subordinate court. Therefore the instant application is brought under the incorrect provisions of the law.” 43. In Kagenyi vs. Musiramo & Another (1968) EA 43, the court held that where the subordinate court lacks jurisdiction to determine a matter, a suit cannot be transferred to another court unless, in the first instance, it was brought to a court with jurisdiction to try it. 44. The authorities cited above hold that a Magistrate’s court cannot, on its own, transfer a case to another Magistrate’s court. Only the High Court has the statutory power to order such transfers. Further, any attempt by a Magistrate to transfer a case is void ab initio, and the practical procedure entails parties filing a formal Application before the High Court for transfer orders if a case is filed in the wrong Magistrate’s court. 45. Consequently, I find that the decision of the Magistrates’ Court in Bungoma was tainted with illegality because the court lacked jurisdiction to transfer the suit as it did, and the Defence Counsel/Counsel for the Respondents instituted the Application improperly before that court. The correct procedure would have been for the accused persons to approach this Court to obtain a determination on the matter, or, in the alternative, to raise a preliminary objection on the grounds of territorial jurisdiction at the point of taking a plea. The decision is therefore void ab initio. 46. Having determined this, and in the interests of justice and in line with the Court's duty to ensure the efficient and expeditious dispensation of justice, I am minded to consider the substantive issues raised in the Application as to whether the suit ought to be heard in Bungoma or Sirisia. 47. I have considered the provisions of Sections 71 and 72 of the Criminal Procedure Code which state as follows: 71. Ordinary place of inquiry and trial 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. 72. Trial at place where Act done or where consequence of offence ensues When a person is accused of the commission of an offence by reason of anything which has been done or of any consequence which has ensued, the offence may be tried by a court within the local limits of whose jurisdiction the thing has been done or the consequence has ensued. 48. Based on the facts of this case and my reading of the charge sheet in the trial court file, I note that the offences with which the Respondents are charged were allegedly committed in Matibo Village, Namwela location, in Sirisia sub-county, within Bungoma County. It is not contested that there are https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5525/eng@2026-04-23 7

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competent courts that can hear and determine the criminal case in Sirisia. For these reasons, the Respondents oppose the Application. 49. In this regard, I have considered the reasons advanced by the Applicants for seeking a retransfer or retention of the case in the courts in Bungoma and for having the matter tried there. It is contended that the complainant lacks confidence in the Sirisia Law Courts due to perceived political and witness interference. 50. Counsel submits that justice must not only be done but must be seen to be done. In this case, there is a concern that the accused persons, who are the Respondents herein, have been the subject of multiple previous criminal reports, including stabbing incidents, assault, malicious damage, and threats, reported at Namwela Police Post and Sirisia Police Station. Additionally, a previous criminal case No. E568 of 2024 at Sirisia Courts involving Simon Wekulo and Mathews Juma was characterised by irregularities and victim intimidation, leading to a loss of confidence in the judicial process. These matters were not disclosed during plea-taking. 51. In the case of John Brown Shilenje vs. Republic [1980] eKLR the court held as follows: “ The High court will always require some very strong grounds for transferring a case from one judicial officer to another, if it is stated that a fair and impartial inquiry or trial cannot be held by him; especially when the statement implies a personal censure on such officer.” 52. I have considered the reasons advanced by the Applicant. While the Court appreciates that such allegations are serious and likely to have grave consequences if proven, it must guard against a sensationalist approach in matters placed before it without proof, as this is a court of law and a court of evidence. 53. Sections 107 – 109 of the Evidence Act are clear that he who alleges must prove. I note that no sworn affidavits or statements have been presented to this Court for consideration. It is also unclear why it is alleged that there will be perceived bias or a failure to do justice by the Court, when no issue has been raised about the judicial officers handling this matter. 54. Further, the complainant in this case is said to be a police officer, a fact the Applicant has not rebutted. The Court is unclear as to why and how he will be intimidated if this case proceeds in Sirisia, as alleged. Furthermore, having carefully reviewed the previous criminal matter in Sirisia Criminal Case No. E568 of 2024, where the 1st and 2nd Respondents were charged with assault, I noted that they were convicted on their own pleas of guilty and sentenced to 6 months’ imprisonment, in default of payment of a fine of Kshs. 10,000/= to the State. 55. It is unclear at which point that case was characterised by irregularities and intimidation, in an attempt to impute a similar scenario to the impending prosecution. The Applicant asserts in their Supplementary Affidavit, paragraph 12, as follows: “ …at plea taking, the full circumstances surrounding the commission of the offence including the fact that this was unprovoked politically motivated attack carried out after the victim, a village elder, called for tolerance in political position diversity in her area were not disclosed to the court when the facts were read…” 56. I find that this is, in itself, insufficient reason to impute a lack of fairness and justice in the case if the matter is heard in Sirisia. If anything, the accused persons were then convicted and sentenced. The judicial officer who conducted the matter is not even the one who took the plea in the present case. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5525/eng@2026-04-23 8

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57. For the reasons advanced above, I find that there are no compelling reasons to warrant the matter being heard and determined in Bungoma Law Courts when the appropriate area of jurisdiction is Sirisia. Similarly, there is no cogent material before this Court to persuade it to exercise its discretion in favour of the Applicant. Further, I hold that, in exercise of its supervisory jurisdiction, the High Court must consider only the parameters of correctness, legality and appropriateness. The impugned Ruling dated 10th September 2025 was evidently tainted with illegality and cannot stand. It is accordingly set aside. 58. Consequently, I find the Application lacking in merit and hereby dismiss it. I direct that the criminal suit in Bungoma CMCR E1094 of 2025 shall be transferred for hearing and determination at Sirisia Law Courts. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 23RD DAY OF APRIL 2026. R.E.OUGO JUDGE Miss Matere For the Applicant 1st, 2nd & 3rd Respondents Mr. Maloba - Absent Wilkister - C/A https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5525/eng@2026-04-23 9

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