John Brown Shilenje V Republic  EKLR
|Criminal Application 180 of 1980||04 Sep 1980|
High Court at Nairobi (Milimani Law Courts)
John Brown Shilenje v Republic
John Brown Shilenje v Republic  eKLR
John Brown Shilenje v Republic
High Court, Nairobi
4th September 1980
Criminal Application No 180 of 1980
Criminal law – trial – venue - transfer to another Court - no fair and impartial trial – test - Criminal Procedure Code (cap 75), section 81(1) (a).
The applicant, a State Counsel, was charged with corruption. He applied for bail on his own bond and, although the Republic’s representative did not oppose the application, the magistrate required a surety. The case was originally fixed for hearing before another magistrate, but was re-allocated and came before the magistrate who heard the application for bail. The applicant applied for the transfer of the case to another magistrate under the Criminal Procedure Code, section 81(1)(a), on the ground that he feared that he would not receive a fair trial before the magistrate who had refused bail on his own bond, whom he had previously known socially when they were both working in the same province, that he had conducted prosecutions before the magistrate and they had from time to time “agreed to disagree” on points of law and practice and that an advocate whom the applicant had wished to represent him had declined to do so on grounds of ill-health after speaking with the magistrate on the phone. At the hearing of the application the applicant added that after the alleged phone call he had pleaded with the advocate to ask the Court to accommodate him on such days as his ill-health prevented him from conducting the case. The advocate, however, denied having made any such phone call.
The application would be dismissed because the refusal of bail on the applicant’s bond alone could not be construed as a suggestion of bias, their earlier social contact did not preclude the magistrate from trying the applicant fairly and impartially, their “agreeing to disagree” with one another on occasions could not support a reasonable apprehension of partiality, it had not been shown that the alleged phone call had taken place, and (even if it had) the applicant’s subsequent plea to the advocate to take the case negated any apprehension of unfairness on the part of the magistrate; accordingly, the incidents referred to by the applicant whether taken individually or collectively would not have created a reasonable apprehension in any right-thinking person’s mind that a fair and impartial trial might not be had before the magistrate.
Re M S Patel’s Application (1913) 5 KLR 66 and
The Republic v Hashimu  EA 656 applied.
Cases referred to in judgment:
- Hannam v Bradford City Council  1 WLR 937 2 All ER 690, England CA.
- Metropolitan Properties Co (FGC) Co Ltd v Lannon  1 QB 577,
-  3 WLR 694,  All ER 304, England CA.
- Patel’s (MS) Application, Re (1913) 5 KLR 66, Hamilton CJ.
- Republic, The v Hashmu  EA 656, Saidi J.
John Brown Shilenje applied to the High Court (Criminal Application No 180 of 1980) for an order transferring his trial on a charge of corruption from the Chief Magistrate to another Court. The facts are set out in Trevelyan J’s judgment.
KC Gautama and SA Wako (instructed by Gautama & Kibuchi) for the Applicant.
B Suttill and J Momanyi Bwonwonga (instructed by the Attorney-General).