The High Court has cleared Senior Principal Magistrate Dolphina Alego to continue and conclude the criminal case against Davis Nathan Chelogoi and Andrew Aseri Kirungu, despite her transfer to the Employment and Labour Relations Court (ELRC). Chelogoi and Kirungu face charges including conspiracy to defraud, forcible detainer and forgery.
Justice Alexander Muteti ruled that Alego’s deployment to the ELRC did not strip her of the criminal jurisdiction she acquired upon her appointment as a magistrate. The decision arose from a case filed by Chelogoi, who sought to stop Alego from continuing to hear Nairobi MCCR/E1137/2023 following her transfer. Chelogoi, who is the first accused, argued that once Alego was transferred to the ELRC, she ceased to have jurisdiction over criminal matters and that proceedings conducted before her after the transfer should be set aside.
However, Justice Muteti rejected the argument, finding that Alego remained a magistrate under the Magistrates’ Courts Act despite being deployed to the ELRC. “The deployment of a Magistrate from the mainstream Magistrates Courts to the courts that are subordinate to the courts of Equal Status does not divest such a judicial officer of the jurisdiction acquired at the time of appointment as a judicial officer,” the court held.
The High Court noted that the criminal trial was already at an advanced stage when Alego was transferred. All 19 prosecution witnesses had testified, 136 documentary exhibits had been produced and the defence hearing had already commenced. Justice Muteti said that where a judicial officer has handled a case to such an advanced stage, the preferred practice is to allow that officer to complete the trial. According to the court, the magistrate who personally heard and observed witnesses is better placed to assess their demeanour, credibility and emotions than another judicial officer who would largely have to rely on the written court record.
The High Court also upheld Chief Magistrate Lucas Onyina’s decision to return the criminal file to Alego after it had temporarily been allocated to Senior Principal Magistrate Rose Ndombi. Justice Muteti found that Onyina, as head of station, had both judicial and administrative authority to reassign the case, particularly considering the advanced stage of the proceedings. The judge, however, faulted the Chief Magistrate for making the decision to return the case to Alego without requiring all parties to be present.
The court nevertheless found that the omission did not invalidate the reassignment because Chelogoi had not demonstrated that he suffered any prejudice. Justice Muteti directed heads of court stations to notify parties when making similar case reallocations to avoid questions being raised about the process. The High Court consequently ordered that the criminal case proceed before Alego.
Chelogoi can now tender his defence and allow the trial to proceed to conclusion. If he still wants Alego to step aside, he may pursue his recusal application before her before further proceedings take place.
