Trial magistrate gets nod to proceed with Ksh.1.3B land case

The court has directed that the Ksh.1.3 billion land fraud trial involving former Provincial Commissioner Davis Chelogoi and his co-accused Andrew Kirungu proceed before the original trial magistrate, bringing to an end a procedural dispute over jurisdiction.

The direction follows a ruling by Chief Magistrate Lucas Onyina, who held that the matter must remain with the court where it had substantially progressed, noting that no successor magistrate had formally assumed jurisdiction in accordance with the law.

Chelogoi and Kirungu are charged with the fraudulent acquisition of a parcel of land valued at Ksh.1.3 billion, allegedly belonging to tycoon Ashok Doshi. They have denied the charges.

A dispute had arisen after the transfer of trial magistrate Dolphins Alego, creating uncertainty as to whether the case had shifted to another court or remained part-heard.

At the time of the interruption, the prosecution had already closed its case, and the defence hearing had commenced, with Chelogoi having taken the stand as the first defence witness.

In his ruling, Onyina found that although the matter had been mentioned before different courts for directions, there had been no formal transfer of the case.

He emphasised that the requirements under Section 200 of the Criminal Procedure Code had not been complied with, as no succeeding magistrate had taken over the case after informing the accused of their rights, including the option to recall witnesses.

The court held that without compliance with these procedural safeguards, jurisdiction could not vest in a new magistrate, and any substantive proceedings before another judicial officer would be irregular.

Onyina further noted that a pending recusal application had not been formally withdrawn, adding to the procedural complications, and reiterated that while courts may be administratively reallocated, parties have no role in choosing the judicial officer assigned to a case.

Citing appellate authority, the court underscored that Section 200 should be applied sparingly, particularly in matters that are already substantially heard, to avoid disrupting proceedings and to protect the right to a fair trial.

The court therefore directed that the case be returned to the original trial magistrate to proceed from the defence stage and be concluded, with earlier mentions before other courts deemed overtaken by events.