Lobby group Sheria Mtaani na Shadrack Wambui has written to the Chief Justice over the directive requiring transfered magistrates to cease dealing with their previous files regardless the stage reached.
The recent administrative directive is currently affecting the Milimani Law Courts, Criminal Division.
In a letter dated 22nd January 2025, the lobby group notes that the directive carries far-reaching practical and legal consequences for the administration of criminal justice.
“While Section 200 of the Criminal Procedure Code provides for the continuation of proceedings before a succeeding magistrate, it does so in express recognition of the peculiar vulnerability of criminal trials to disruption and the heightened risk of prejudice to accused persons,” Sheria Mtaani added.
According to the letter, the statutory right of an accused to demand recall of witnesses, and the court’s corresponding discretion to order rehearing, are safeguards rooted in fairness.
“In matters that have substantially progressed, some over extended periods, this transition almost inevitably occasions delay, duplication, and uncertainty,” the lobby group said.
The NGO further stated that accused persons who had a legitimate and reasonable expectation that their trials would be concluded expeditiously by the judicial officers who heard the evidence are now exposed to the real possibility of rehearing, further adjournments, and prolonged deprivation of liberty.
“This outcome, though unintended, sits uneasily with Article 50 of the Constitution and the overarching imperative of expeditious criminal justice.”
In addition, Sheria Mtaani claims that the directive has institutional implications.
It is their argument that the remaining magistrates in the Criminal Division, in the absence of new appointments or commensurate reallocation of resources, are now required to absorb a substantial volume of partly-heard and mature matters in addition to their existing dockets.
This, they added, effectively doubles their workload and risks compounding delay across the division, to the detriment of all court users; accused persons, victims, witnesses, counsel, and the court itself.
It is against this backdrop that the NGO urges the Chief Justice to reconsider the directive, with a view to permitting the transferred magistrates, where practicable, to conclude the matters they had substantially heard or in which judgments are pending, before fully disengaging.
“Such a measured approach would, in our humble view, better align with the interests of justice, judicial economy, and fairness to all parties, while still preserving the integrity of the administrative transfer process,” the NGO added.
