https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9858

Guyo v Republic (Miscellaneous Criminal Application E054 of 2025) [2026] KEHC 9858 (KLR) (19 June 2026) (Ruling) Neutral citation: [2026] KEHC 9858 (KLR) Republic of Kenya In the High Court at Garsen Miscellaneous Criminal Application E054 of 2025 JN Njagi, J June 19, 2026 Between Ali Roba Guyo Applicant and Republic Respondent Ruling 1.After the prosecution had called 5 witnesses in the case including the investigating officer PW5, they on the 24/9/2025 made an application to recall one of the witnesses who had testified, PW4, to produce a copy of “No objection” letter which the witness had not produced when he testified in the case. 2.The prosecution also made an application to call 3 more witnesses- the scenes of crime officer, the officer who conducted an identification parade and an eye witness who saw the accused persons parking the subject exhibits into a lorry. The court prosecutor promised to serve the statements of the said witnesses to the defence before the witnesses testified in the case. 3.Miss Adoyo for the accused objected to the prosecution calling more witnesses in the case on the ground that pre-trial had been done in the case and there was no indication that there were such witnesses to be called in the case. She submitted that calling of such witnesses at that stage would be prejudicial to the accused person. She however indicated that she had no objection to PW4 being recalled to produce the “No Objection” letter. 4.The trial court in its ruling stated that since the prosecution had indicated that it would supply copies of witness statement to the accused person before the hearing date, there was no prejudice to the accused persons if the application to call further witness in the case was allowed. The court accordingly allowed the application to call the 3 intended witnesses. It also allowed the application to recall PW4 to produce the “No objection” letter. 5.Miss Adoyo then filed the instant revision application with this court. She filed written submissions in support of the application and submitted that the application is made under Section 362 of the Criminal Procedure Code. She relied on the case of Republic-v-Jared Wakhule Tubei & Another HC Bungoma Revision Case No. 26 of 2012 where it was held that the powers of revision under Section 362 of the Criminal Procedure Code are exercised where the orders or proceedings of the subordinate court are found to be illegal, marred by impropriety or are generally irregular. 6.Counsel submitted that PW4 failed to produce the “No objection” letter when he testified in the case. Further that the investigating officer PW5 testified in the case and failed to avail the purported eye witness, failed to avail photographs of the stolen stock and failed to avail the identification parade form despite conducting the same. That the prosecution failed to inform the trial court the reasons of not availing the necessary evidentiary documents and the efforts made in availing them if they were not in their possession during the trial. That the prosecution came to the realization that the documents were not availed when the defence was cross-examining in the matter. That Article 50(2) (i) of the Constitution grants an accused person the right to be informed in advance of the evidence the prosecution intend to rely on, and to have reasonable access to the evidence. That in the present case the prosecution failed to comply with the provision of the said Article. That the prosecution has ambushed the defence after the prosecution called its last witness. That the act of the prosecution recalling witnesses and introducing evidence they ought to have during the trial undermines the fairness of the trial and violates the criminal procedure. That delaying disclosure of evidence up to the last minute is an attempt to ambush the defence and is a miscarriage of justice. Counsel urged the court to revise the orders of the trial court. 7.The Respondent did not file submissions in respect to the application. 8.I have considered the application and the grounds advanced in support of the application. Section 362 of the Criminal Procedure Code grants this court the power to call for a file orders of the subordinate court so as to satisfy itself that any orders made conform with the law and procedure. 9.In the first place, miss Adoyo told the trial Court that she did not object to PW4 being recalled to produce the “No objection” letter. She in the premises cannot raise the objection with this court when she did not do so with the trial court. 10.As regards the order allowing the calling of further witnesses in the case, this court can only interfere under the provisions of Section 362 of the Criminal Procedure Code if the orders are illegal, improper or an abuse of the court process. In my view Article 50 (2) (i) does not bar the calling of further witnesses who were not disclosed during pre-trial. What has to be ensured is that before calling such witnesses the defence is informed in advance of their evidence and the accused is given reasonable access to that evidence and sufficient time to prepare his/her defence. In the case of Lennox Chengek Chestit v Republic [2021] KEHC 3105 (KLR), Justice C. W. Githua held that:19.My take is that the right of an accused person to be informed of the prosecution’s evidence in advance cannot be narrowly interpreted to mean that disclosure can only be made before commencement of the trial. In my opinion, disclosure can be made in the course of the trial but before the evidence in question is produced in court.20.It is further my position that Article 50 (2) (j) should be read together with Article 50 (2) (c) which provides that an accused person should be given adequate time and facilities to prepare for his defence. This in effect means that even if disclosure is made in the course of the proceedings, it would only affect an accused person’s right to a fair trial if he was denied an opportunity to interrogate it and prepare for cross examination of the witnesses expected to tender the evidence in court. I therefore agree with the respondent’s submissions that the prosecution’s duty of disclosure is continuous and can be discharged even after commencement of a trial but before the prosecution closed its case. 11.I am in agreement with the above holding. Further to that, the defence has the right to ask for further cross-examination of witnesses who have testified if there is late disclosure of the evidence. Miss Adoyo has not alleged that there was such denial. 12.I have noted from the trial court’s record that on 1/10/2025 the prosecution informed the court that the defence had been supplied with the copies of witness statements of the intended witnesses. The defence has not demonstrated that there was prejudice in the late disclosure of the evidence of the intended witnesses. 13.In view of the foregoing I do not find any merit in the application and the same is dismissed. RULING DELIVERED, DATED AND SIGNED AT GARSEN THIS 19TH DAY OF JUNE 2026.J. N. NJAGIJUDGEIn the presence of:Miss Adoyo for ApplicantMr.Oluoch for Respondent Accused present:Applicant: AbsentCourt Assistant - Rahma