Republic v Bakari (Criminal Case E312 of 2025) [2026] KEMC 692 (KLR)
The bottom line
#A Bungoma court found no bias against itself but still recused from the criminal trial because Kenyan law gives an accused that right after a rejected plea deal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the instant Application is properly before this court
- 2.Whether this court should recuse itself from hearing and determining this matter for bias
- 3.Whether this court should recuse itself from hearing and determining this matter upon rejection of the Plea Agreement
Key legal issues
#Whether the application was properly before the court despite being brought under Civil Procedure Act provisions in a criminal matter
The application was properly before the court; wrong provisions do not render it fatally defective and no prejudice was caused
The Civil Procedure Act does not govern criminal litigation, but following Meshki v Inspector General of Police, citing wrong sections is not fatal. The prosecution was not prejudiced, so the application proceeded on its merits.
Whether the court's insistence on the complainant's involvement in plea bargaining amounted to bias
No; the court was discharging its statutory mandate and the defence failed the objective test of reasonable apprehension of bias
Sections 137D and 137O of the Code, Rule 7 of the Plea Bargain Rules, and sections 9 and 20 of the Victim Protection Act (per Article 50(9)) mandate the complainant's involvement. Recusal is reserved for clear-cut cases; a party cannot manufacture an awkward situation then seek recusal.
Whether the court's knowledge of the rejected plea agreement (an admission of guilt) precluded a fair trial
No; by sections 137J and 137M of the Code and Rule 3 of the Rules, the rejected agreement and negotiation information are inadmissible and cannot influence trial
The statute renders plea-agreement contents inadmissible in any subsequent trial, so the court cannot use that knowledge; unfounded apprehension of bias is not a ground for recusal. However, since the accused had not waived his right under section 137J(2), the court recused itself from trial.
Legal principles established
#- Citing wrong sections of the law does not render an application fatally defective where no prejudice is caused
- A court cannot be termed biased simply because it has insisted on compliance with the law
- The objective test of reasonable apprehension of bias governs recusal applications
- Upon rejection of a plea agreement, its contents and information from plea negotiations are inadmissible and cannot be used at trial
- Upon rejection of a plea agreement, either party may seek trial afresh before another court under section 137J(2) of the Criminal Procedure Code unless the accused waives that right
Court orders
#- 1.This Court recuses itself from hearing and determining this matter per section 137J(2) of the Criminal Procedure Code
- 2.This file be placed before the Chief Magistrate for re-allocation and further directions forthwith
- 3.Each party to bear their own costs for the Application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent jurisdiction of the criminal trial court; application expressed under sections 1A, 1B and 3A of the Civil Procedure Act (held not fatal), determined under sections 137J and 137M of the Criminal Procedure Code
Relief refused
#Recusal on the ground of alleged bias and favouritism towards the complainant
The defence failed to meet the objective test of reasonable apprehension of bias; the court's insistence on the complainant's lawful involvement in plea negotiations was fidelity to the law, not bias
Costs of the application in the cause
Court ordered each party to bear their own costs
Costs
Each party to bear their own costs for the Application
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This Court recuses itself from hearing and determining this matter per section 137J(2) of the Criminal Procedure Code
This file be placed before the Chief Magistrate for re-allocation and further directions forthwith
Each party to bear their own costs for the Application
A court cannot be termed as biased simply because it has insisted on compliance with the law.
An application for recusal should be reserved for clear-cut cases.
A reasonable and fair-minded man walking along the streets of Bungoma and knowing all the relevant facts of this case would not have a reasonable suspicion that a fair trial for the Accused Person is not possible before this court
Issues in the judgment
#The application is dated 20th June 2026 and the ruling 12th August 2026; the year 2026 appears to be a typographical anomaly, but is reproduced as printed
Provision cited as 'section 1370' of the Criminal Procedure Code is evidently a typographical rendering of section 137O; similarly '137A – 1370'
Duplicated drafting text in the prosecution's position paragraph ('averred that She further averred that')
The court found no bias justifying recusal yet nonetheless recused itself under section 137J(2) because the accused had not waived his right to trial before another court - a tension resolved by the court as a statutory right, not a finding of bias
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Bakari (Criminal Case E312 of 2025) [2026] KEMC 692 (KLR)", Case Analysis (2026). Notice of Motion dated 20th June 2026 (criminal case, Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/692/eng@2026-08-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.