Peter Kamau Thuo & 3 others v Republic

3. That this Honourable Court be pleased to examine and revise the orders issued on 16th February, 2024 and a ruling delivered on 14th May, 2024 by Hon. Ochoi (CM) in Milimani Chief Magistrate’s Court Criminal Case No. 329 of 2020. 4. That pending the hearing and determination of this application, there be a stay of any further proceedings in Milimani Chief Magistrate’s Court Criminal Case No. 329 of 2020 Republic versus Peter Kamau Thuo & 3 others. 5. That this Honourable Court set aside the proceedings and orders of 15th February, 2024 the ruling dated 14th May, 2024 and further a defence hearing date be given to enable the OCS Ruiru police station, effect arrest of the two (2) witnesses that have declined to attend court. Brief facts 3. On 6th December, 2023 the matter was fixed for further defence hearing before the trial magistrate. Two witness; 1. The Land Registrar, Ruiru 2. The Chairman Githunguri Constituency Ranching company Ltd were summoned to testify. The two did not attend court as required and upon application, warrants of arrest were issued for production in court on 15th February, 2024. 4. On 15th February, 2024 the two witnesses did not attend court. It is the applicant’s contention that their Counsel did not arrive in court in time and they requested the court to place the file aside which request was declined, subsequently, the learned trial magistrate directed that the matter proceed to filing of submissions and fixed 6th March, 2024 for confirming on filing of submissions. 5. It is further Counsel’s contention that when he later on the same day appeared before the Magistrate he informed him that the court assistant had not extracted the warrant of arrest and the OCS Ruiru had not been served so as to effect the arrest. He requested that the court assistant do extract the warrant of arrest but she declined stating that there was no such order in the proceedings of 15th February, 2024 which instead indicated that the matter was for submissions. This court is asked also to set aside the ruling dated 14th May, 2024. 6. The relevant part of the ruling being where the magistrate stated as follows; ‘As regards the warrants, I must clarify that the application made by the defence was that the warrants of arrest do issue for arrest of the Land Registrar Ruiru and the Chairman Githunguri Constituency Ranching Company Limited through the OCS Ruiru. It was upon Counsel for the accused who applied for the same for his clients to pick the filed warrants and present to OCS Ruiru for execution upon, pointing out to the OCS the said individuals and their whereabouts. The court record shows that warrants were filed and signed by myself on 6th December, 2023. The same date they were applied for’. 7. The applicants appear to question the validity of the warrants in the file stating that they bore the date for hearing as 15th February, 2023 instead of 15th February, 2024. 8. It is the applicant’s contention that there are no proper and valid warrants of arrest for collection and for purposes of serving the Ruiru OCS. 9. This application to re-open the defence is opposed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11902/eng@2026-03-10 2

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10. The grounds for the objection are to be found in the respondents replying affidavit sworn on 25th March, 2024 and are as follows; a. The accused persons/applicants were placed on their defence on 26th September, 2022 and they had made applications for adjournments severally for various reasons; a) on 29th November, 2022 b) on 22nd June, 2023 c) on 7th August, 2023 d) on 9th October, 2023 e) on 6th December, 2023 f) on 15th February, 2024 11. That on 6th December, 2023 the accused persons were granted the last adjournment when they were not ready to prosecute their case. They were also granted prayers for the issue of warrants of arrest for witnesses who had not attended court. 12. It is the prosecution’s contention that from the 6th day of December, 2023 to 15th February, 2024 which is a period of over two months the applicants did not communicate to the court on any challenges faced in extracting of the warrants of arrest nor did they seek the courts assistance. 13. That on 15th February, 2024 Counsel for the accused persons and their witnesses were not present in court and the defence was closed by the court. Determination 14. This application is for revisionary powers of the High Court which are provided for under section 362 and 364 of the Criminal Procedure Code. The High Court is mandated to call for the subordinate courts file for purposes of perusal so as to satisfy itself as to the correctness, legality or propriety of that courts orders. 15. The applicants place reliance on the provisions of article 50(2) of the constitution of Kenya 2010, which provides; i) Every accused person has the right to a fair trial which includes the right. c. to have adequate time and facilities to prepare a defence. k) to adduce and challenge evidence. 16. The same constitution in article 159(2) provides that justice should not be delayed. 17. It is not in dispute that the accused persons were placed on their defence on 26th September, 2022. It is also not in dispute that since that date, there had been six (6) adjournments at their behest. 18. On the 6th day of December, 2023 the accused persons were granted prayers for issuance of warrants of arrest against their witnesses who had failed to attend court. 19. In his ruling dated 14th April, 2024 the learned trial magistrate did indicate that it was upon Counsel for the accused who had applied for the warrants to pick the same and to present them to the OCS Ruiru for execution upon pointing out to him the witnesses. He did point out that the court record https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11902/eng@2026-03-10 3

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did show that the warrants were issued and signed by himself on the same date they were applied for which was 6th December, 2023. The applicant’s contention is that there were no valid warrants of arrest for them to pick and serve the OCS for execution. 20. It is noted that the applicants have not demonstrated on the invalidity of the warrants apart from stating that they bore different dates. 21. The warrants were issued on 6th December, 2023 and the defence hearing was fixed for 15th February, 2024 which is a period of more than two months. The applicants have not demonstrated what action they undertook to rectify the warrants and or the situation either by application before the magistrate or by any other remedial action. 22. I find that they were either indolent, or theirs was a deliberate delaying tactic as can be deduced from their numerous adjournments. I find nothing improper, irregular and or incorrect so as to call for this courts intervention. The application for revision has no merit and it is disallowed. 23. The original file to be returned back to subordinate court to proceed from where it had reached in the proceedings. Matter to be mentioned before the Chief Magistrate on 24th March, 2026 for further direction. RULING READ AND DELIVERED VIRTUALLY THIS 10TH DAY OF MARCH, 2026. MARTIN M. MUYA JUDGE In the Presence of: Mr. Wangai – For the Applicant Isacko - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11902/eng@2026-03-10 4

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