[2017] KEHC 4644 (KLR)
The court found that the accused's defence introduced new evidence that was not brought forth during the prosecution's case. Applying Section 212 of the Criminal Procedure Code and the precedent in Mohamed Sanga Mwazombo v Republic, the court held that the prosecution is entitled to adduce rebuttal evidence in such...
Source-derived case information.
- Citation
- [2017] KEHC 4644 (KLR)
- Parties
- Defendant: Danmark Ochieng Otieno; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 32 of 2015
- Procedural Posture
- Criminal Case / Ruling on Application to Adduce Rebuttal Evidence
- Outcome
- application for leave to adduce rebuttal evidence granted
- Judges
- TW Cherere
- Legal Topics
- Rebuttal Evidence, Criminal Trial Procedure, Recall of Witnesses
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Danmark Ochieng Otieno
Defendant
Republic
Respondent
Procedural Posture
Criminal Case / Ruling on Application to Adduce Rebuttal Evidence
Legal Issues
- 1 Whether the prosecution should be granted leave to adduce rebuttal evidence in response to new matters raised by the accused in his defence.
- 2 Whether the accused's defence introduced new evidence unforeseen by the prosecution.
Ratio Decidendi
The court found that the accused's defence introduced new evidence that was not brought forth during the prosecution's case. Applying Section 212 of the Criminal Procedure Code and the precedent in Mohamed Sanga Mwazombo v Republic, the court held that the prosecution is entitled to adduce rebuttal evidence in such circumstances. The court further reasoned that the defence would not be prejudiced, as it would have the opportunity to cross-examine the new evidence. Consequently, the state was granted leave to tender rebuttal evidence, with directions on disclosure to the defence.
Court Disposition
application for leave to adduce rebuttal evidence granted
Orders
- The state is granted leave to tender rebuttal evidence.
- The state has 30 days from the date of this order to supply the defence with a list of witnesses and statements of witnesses it intends to call.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CRIMINAL CASE NO. 32 OF 2015
DANMARK OCHIENG OTIENO…..….…….……...ACCUSED
VERSUS
REPUBLIC…………………………………....PROSECUTOR
RULING
When this matter came up for defence hearing today; accused stated that he was not at the scene when the offence herein was committed.
Ms. Wafula, learned counsel for the state applied to call rebuttal evidence on the ground that accused had raised new evidence.
Mr. Ojuro, learned counsel for accused submitted that accused had not raised new evidence since he had admitted that he had been at the scene but that he had left before the offence was committed.
I have considered the submissions by the state and the defence. Section 212 of the Criminal Procedure Code states:
If the accused person adduces evidence in his defence introducing a new matter which the prosecutor could not by the exercise of reasonable diligence have foreseen, the court may allow the prosecutor to adduce evidence in reply to rebut that matter
I have considered the case of Mohamed Sanga Mwazombo v Republic [2015] eKLR, in which the court held that witnesses can be recalled under section 212 of the Criminal Procedure Code. The court went further to state that:
Under Section 212 of the Criminal Procedure Code, the prosecution may be allowed to adduce more evidence in reply to the defence evidence so as to rebut what the accused would have stated in his defence. Under that Section, the court would consider whether the defence evidence could not have been foreseen by the prosecution by the exercise of reasonable diligence.
I have considered the line of defence adopted by the accused and it no doubt raises new evidence that was not brought forth during the hearing of the prosecution case.
I have therefore come to the following conclusion:-
The drafters of the law in enacting Section 212 of the Criminal Procedure Code must have foreseen a situation where a party would raise new evidence that could not have been foreseen by the adverse party
That the state is therefore within the law to apply to rebut the defence case
The court shall after the new evidence is adduced determine if it contradicts, impeaches or defuses the impact of the evidence offered by the defence or whether the prosecution intends to use it to clarify its evidence adduced earlier and make the appropriate decision
The defence will not be prejudiced if new evidence is tendered for the reason that it will have an opportunity to test its newness in cross-examination
It is therefore hereby ordered:
a. The state is hereby granted leave to tender rebuttal evidence
b. The state has 30 days from the date of this order to supply the defence with a list of witnesses and statements of witnesses it intends to call
DATED, SIGNED AND DELIVERED THIS10thDAY OFJuly.2017
T. W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant - Felix
Accused - Present
For Accused - Mr. Ojuro
For the State - Ms. Wafula