Magistrate transferred to Employment court can handle pending criminal case; Court rules

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Magistrate transferred to Employment court can handle pending criminal case; Court rules

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Justice Alexander Muteti determined this while dismissing a challenge by former Nairobi Provincial Commissioner Davis Nathan Chelogoi, who had questioned Senior Principal Magistrate Dolphina Alego’s continued handling of his criminal case after she was transferred to the ELRC.

Chelogoi and his co-accused, Andrew Aseri Kirungu, are facing several charges, including conspiracy to defraud, forcible detainer and forgery.

The case was already at an advanced stage when Alego was transferred. All 19 prosecution witnesses had completed their testimony, 136 documentary exhibits had been admitted, and the defence hearing had commenced.

Chelogoi argued that Alego no longer had jurisdiction to deal with the criminal proceedings after her deployment to the ELRC and sought to have proceedings conducted by her after the transfer declared unlawful.

Justice Muteti, however, disagreed, holding that Alego remained a magistrate appointed under the Magistrates’ Courts Act despite being deployed to the specialised court.

The judge noted that there is a distinction between the deployment of magistrates to courts subordinate to courts of equal status and the appointment of judges to courts established under Article 162(2) of the Constitution.

According to the court, transferring a magistrate from the ordinary Magistrates’ Courts to a court subordinate to a superior court of equal status does not, by itself, extinguish jurisdiction that the judicial officer acquired upon appointment.

The High Court also upheld the decision of Chief Magistrate Lucas Onyina to move Chelogoi’s case back to Alego after it had briefly been placed before Senior Principal Magistrate Rose Ndombi.

Justice Muteti found that Onyina, as the head of the court station, had the authority to reallocate the matter, both administratively and judicially, particularly because the trial had already progressed substantially under Alego.

The judge, however, criticised the manner in which the reassignment was undertaken, noting that the parties should ordinarily have been notified and given an opportunity to be present when such a decision is made.

Despite the procedural lapse, the court found that it did not invalidate the reassignment because Chelogoi had failed to demonstrate that he suffered prejudice as a result.

Justice Muteti emphasised that, where possible, a magistrate who has taken a matter through a significant portion of the trial should be allowed to complete it.

This is because the judicial officer who personally hears witnesses is better placed to assess their demeanour, credibility and emotional responses during testimony, rather than leaving the determination to a different judicial officer relying mainly on the recorded proceedings.

The court consequently upheld the decision to return the case to Alego and directed that the trial continue before her.

Justice Muteti further directed heads of court stations to ensure parties are notified whenever cases are reallocated in similar circumstances, saying this would promote transparency and prevent unnecessary disputes over the process.

Chelogoi can now proceed with his defence and allow the trial to run its course. Alternatively, if he maintains his objection to Alego handling the matter, he may pursue his application seeking her recusal before further proceedings continue.

Reporting originally appeared via Citizen Digital. Read the full source for additional context.