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MagistratePartially AllowedNotice of Motion dated 20th June 2026 (criminal case, Bungoma)

Republic v Bakari (Criminal Case E312 of 2025) [2026] KEMC 692 (KLR)

Magistrates' Court (Criminal Division), Bungoma
12 August 2026
3,597 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling by Senior Resident Magistrate T.O. Omono at Bungoma determines the Accused Person's Notice of Motion dated 20th June 2026 seeking the magistrate's recusal and re-allocation of the criminal case. The defence alleged bias and favouritism because the court insisted on the complainant's involvement in plea-bargain negotiations and later rejected the Plea Bargain Agreement, contending that the court's knowledge of the agreement (an admission of guilt) would predispose it at trial. The prosecution opposed, describing the application as speculative and an abuse of process. The court framed three issues. First, although the application was erroneously expressed under sections 1A, 1B and 3A of the Civil Procedure Act, which does not govern criminal litigation, it was properly before the court since wrong provisions are not fatal absent prejudice. Second, on alleged bias, the court adopted the objective test of reasonable apprehension of bias and held that insisting on the complainant's statutory and constitutional right to participate in plea bargaining (under sections 137D and 137O of the Criminal Procedure Code, Rule 7 of the Plea Bargain Rules, sections 9 and 20 of the Victim Protection Act and Article 50(9) of the Constitution) was fidelity to the law, not bias; no scintilla of evidence of bias was shown. Third, while the court could not use information from the rejected plea agreement at trial (sections 137J and 137M; Rule 3), the accused had not waived his statutory right under section 137J(2) to have the trial proceed before another court. The application partially succeeded: the court recused itself under section 137J(2), directed re-allocation before the Chief Magistrate, and ordered each party to bear their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the instant Application is properly before this court
  2. 2.Whether this court should recuse itself from hearing and determining this matter for bias
  3. 3.Whether this court should recuse itself from hearing and determining this matter upon rejection of the Plea Agreement

Key legal issues

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01

Whether the application was properly before the court despite being brought under Civil Procedure Act provisions in a criminal matter

Holding

The application was properly before the court; wrong provisions do not render it fatally defective and no prejudice was caused

Reasoning

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.

p. 2
02

Whether the court's insistence on the complainant's involvement in plea bargaining amounted to bias

Holding

No; the court was discharging its statutory mandate and the defence failed the objective test of reasonable apprehension of bias

Reasoning

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.

p. 6
03

Whether the court's knowledge of the rejected plea agreement (an admission of guilt) precluded a fair trial

Holding

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

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 1.This Court recuses itself from hearing and determining this matter per section 137J(2) of the Criminal Procedure Code
  2. 2.This file be placed before the Chief Magistrate for re-allocation and further directions forthwith
  3. 3.Each party to bear their own costs for the Application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 8

Costs of the application in the cause

Court ordered each party to bear their own costs

p. 11

Costs

Each party to bear their own costs for the Application

Quotable passages

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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
p. 11Final orders - recusal under section 137J(2)
This file be placed before the Chief Magistrate for re-allocation and further directions forthwith
p. 11Final orders - re-allocation
Each party to bear their own costs for the Application
p. 11Final orders - costs
A court cannot be termed as biased simply because it has insisted on compliance with the law.
p. 6Recusal - fidelity to law is not bias
An application for recusal should be reserved for clear-cut cases.
p. 7Recusal threshold
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
p. 7Objective test of bias applied

Issues in the judgment

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minor

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

minor

Provision cited as 'section 1370' of the Criminal Procedure Code is evidently a typographical rendering of section 137O; similarly '137A – 1370'

minor

Duplicated drafting text in the prosecution's position paragraph ('averred that She further averred that')

minor

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.