https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7227

Karweni v Republic (Criminal Revision E064 of 2025) [2026] KEHC 7227 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KEHC 7227 (KLR) Republic of Kenya In the High Court at Narok Criminal Revision E064 of 2025 CM Kariuki, J May 22, 2026 Between Christopher Karweni Applicant and Republic Respondent (From the proceedings before the Hon. D. Ngayo (SRM) on the 18th day of September, 2025, in Narok MCS No. E048 of 2022) Ruling A. Introduction And Background 1.Before this Court is the Applicant’s revision application dated 21st October 2025 brought pursuant to Sections 362 and 364 of the Criminal Procedure Code seeking revision of the ruling delivered on 18th September 2025 by Hon. D. Ngayo (Senior Resident Magistrate) in Narok Sexual Offences Case No. E048 of 2022. 2.The Applicant, Christopher Karweni, is charged before the subordinate court with the offence of rape contrary to Section 3(1)(a)(b) as read with Section 3(3) of the Sexual Offences Act, No. 3 of 2006. He also faces an alternative charge of committing an indecent act with an adult contrary to Section 11A of the Sexual Offences Act. 3.The record shows that the Applicant pleaded not guilty and the matter proceeded to a full hearing before the trial court. The prosecution closed its case, and the Applicant, who was unrepresented during the prosecution’s case, personally cross-examined the prosecution witnesses. The Applicant also filed submissions on the case to answer. 4.On 19th June 2025, the trial court ruled that the Applicant had a case to answer and placed him on his defence. 5.Subsequently, on 29th July 2025, counsel for the Applicant entered an appearance and orally applied for the reopening of the prosecution case to enable counsel to cross-examine the prosecution witnesses afresh on the ground that counsel had not represented the Applicant during the hearing of the prosecution case and that the offence facing him was serious in nature. 6.The trial court's decision reflects its duty to balance justice and fairness, reassuring the audience of a fair process and the court's commitment to integrity. 7.Aggrieved by that ruling, the Applicant moved this Court seeking revision of the subordinate court’s order because the learned trial magistrate failed to adequately consider the Applicant’s constitutional right to legal representation and the need for a fair trial. 8.The application was opposed through a replying affidavit sworn on 10th March 2026 by learned prosecution counsel, Ms Kioko Linet Kerubo. B. Parties’ Submissions 9.Learned counsel for the Applicant, Mr Ndichu, submitted that the Applicant was unrepresented throughout the prosecution’s case and that the seriousness of the offence warranted reopening of the prosecution case to allow counsel an opportunity to cross-examine the witnesses. Counsel argued that the right to legal representation under Article 50 of the Constitution is fundamental and that the trial court ought to have exercised discretion in favour of reopening the case in the interests of justice. 10.Counsel further submitted that no prejudice would be occasioned to the prosecution because it had not been demonstrated that the witnesses were unavailable. He urged the Court to exercise its revisionary jurisdiction under Sections 362 and 364 of the Criminal Procedure Code and order the reopening of the prosecution case. 11.Ms Kerubo pointed out that the Applicant actively participated, which underscores his engagement and the court's recognition of his rights, fostering respect for procedural fairness. C. Issues For Determination 13.The issues arising for determination are:i.Whether this Court should interfere with the discretion exercised by the trial court in declining to reopen the prosecution case;ii.Whether the Applicant’s right to a fair trial was violated by the refusal to reopen the prosecution case; andiii.Whether the threshold for revision under Sections 362 and 364 of the Criminal Procedure Code has been met. D. Analysis And Determination 14.The High Court's revision jurisdiction, outlined in Section 362 of the Criminal Procedure Code, allows it to supervise subordinate courts to ensure the correctness and legality of proceedings, emphasising its supervisory role to maintain trust in judicial oversight.“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.” 15.The scope of revision was discussed in Joseph Nduvi Mbuvi v Republic [2019] eKLR, where the Court held that revisionary jurisdiction is meant to enable the High Court to correct glaring illegalities, irregularities, improprieties, or incorrectness in proceedings before subordinate courts. 16.Similarly, in Director of Public Prosecutions v Perry Mansukh Kansagara & 8 Others [2020] eKLR, the Court emphasised that revisionary jurisdiction is supervisory in nature and should not be used to substitute the discretion of the trial court merely because another court would have arrived at a different conclusion. 17.The Court reaffirmed that the trial court's discretion in declining to reopen the case is to be respected, maintaining judicial boundaries and fairness. 18.Article 50(2)(g) of the Constitution guarantees every accused person the right:“to choose, and be represented by, an advocate, and to be informed of this right promptly.” 19.Article 50(2)(h) further provides for legal representation at State expense where substantial injustice would otherwise result. 20.The Court of Appeal in David Njoroge Macharia v Republic [2011] eKLR held that the right to legal representation at State expense is not automatic in every criminal case and depends on whether substantial injustice would result if legal representation is not provided. 21.The record demonstrates the Applicant's active participation, including cross-examining witnesses and filing submissions, indicating his awareness of his rights and the case's gravity. 22.The replying affidavit filed by the Respondent annexed the Applicant’s written submissions dated 24th May 2025, demonstrating his active participation in the proceedings and his appreciation of the nature of the case facing him. 23.The Court has also considered whether the trial court improperly exercised its discretion in declining to reopen the prosecution case. 24.The decision to reopen a prosecution case is discretionary, based on circumstances that meet the ends of justice and avoid prejudice, highlighting the court's role in balancing fairness and procedural integrity. 25.The record before this Court shows that the Applicant never complained during the prosecution hearing that he was unable to conduct his defence or cross-examine witnesses effectively. It was only after the court ruled that he had a case to answer that counsel came on record and sought to reopen the entire prosecution case. 26.While the offence facing the Applicant is undoubtedly serious, seriousness alone cannot be a basis for reopening proceedings that were otherwise regularly conducted. 27.The Court further notes that the Applicant identified no specific prejudice. Counsel merely made a general request to cross-examine witnesses afresh. No indication was given regarding what material areas had not been covered during the earlier cross-examination or what injustice had arisen from the manner in which the trial had proceeded. 28.An accused person who elects to conduct his own defence cannot later invalidate proceedings merely because he subsequently secures legal representation. 29.This Court is therefore not persuaded that the learned trial magistrate acted illegally, improperly, or irregularly in declining to reopen the prosecution case. 30.The trial court properly exercised judicial discretion after considering the circumstances of the matter. This Court finds no basis upon which to interfere with that discretion under its revisionary jurisdiction. E. Disposition 32.Consequently, the Applicant’s revision application dated 21st October 2025 lacks merit and is hereby dismissed. 33.The proceedings before the subordinate court shall proceed to a defence hearing before the trial court. 34.It is so ordered. DATED, SIGNED, AND DELIVERED AT NAROK, THIS 22ND DAY OF MAY, 2026.…………………………………….CHARLES KARIUKIJUDGE