The High Court in Nairobi has upheld a decision directing that a criminal case involving former Nairobi Provincial Commissioner, Davis Nathan Chelogoi, continue before magistrate Dolphina Alego despite her transfer to the Employment and Labour Relations Court.
Justice Alexander Muteti dismissed Chelogoi’s challenge to the reassignment of the case, finding that Alego retained her criminal jurisdiction as a magistrate after her transfer.
Chelogoi, who is the first accused in Nairobi MCCR/E1137/2023 alongside Andrew Aseri Kirungu, had asked the High Court to quash proceedings conducted before Alego. He argued that she no longer had authority to handle criminal matters after being deployed to the Employment and Labour Relations Court.
He also challenged the decision by Nairobi Chief Magistrate Lucas Onyina to move the case back to Alego after it had initially been placed before Senior Principal Magistrate Rose Ndombi following Alego’s transfer.
The case involves charges of conspiracy to defraud, forcible detainer and forgery against Chelogoi and Kirungu. By the time Alego was transferred, 19 prosecution witnesses had testified and 136 documentary exhibits had been produced, while the defence proceedings had commenced.
Justice Muteti found that Alego’s deployment did not cancel her status or jurisdiction as a magistrate.
The judge explained that magistrates serving in courts attached to the specialised courts remain appointed under the Judicial Service Act and the Magistrates’ Courts Act.
Unless the magistrate’s appointment is revoked, the transfer does not remove jurisdiction acquired through that appointment.
The court also rejected Chelogoi’s argument that Chief Magistrate Onyina lacked authority to move the case from Ndombi back to Alego.
Justice Muteti relied on Section 79 of the Criminal Procedure Code, which allows the transfer of cases between magistrates within the relevant jurisdiction. The judge found that Onyina, as head of the station, had the power to reassign the matter to Alego, particularly given that she had already heard the entire prosecution case before her transfer.
However, the judge faulted the Chief Magistrate for making the decision without first involving all the parties.
The court nevertheless held that this omission did not invalidate the reassignment because Chelogoi had not demonstrated that he suffered prejudice as a result.
The High Court further declined to shut out Chelogoi’s application on procedural grounds. Justice Muteti said the court has supervisory jurisdiction over subordinate courts and can intervene where procedural irregularities in criminal proceedings are raised.
The judge said the appropriate course was for the case to continue before Alego. If Chelogoi still wishes to pursue his recusal application, he should have it heard by the trial magistrate before further proceedings take place.
The court also directed that whenever a station head considers moving a case under Section 79 of the Criminal Procedure Code, the parties should be notified to prevent disputes arising from the process.
The ruling was delivered at the Milimani High Court on August 17, 2026.
