https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11699
The High Court found no basis to interfere with the trial court’s refusal to reopen the defence case because the prosecution and defence had already closed their cases and the matter was only pending submissions. The application was therefore impractical, unnecessary, and overtaken by events, with no demonstrated...
Source-derived case information.
- Citation
- [2026] KEHC 11699 (KLR)
- Parties
- Applicant: Emmanuel Kwayu Waswa; Respondent: Republic
- Court
- High Court
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E034 of 2023
- Procedural Posture
- Criminal Revision / Application to Review/revise Lower Court Order After Rejection of Request to Reopen Defence Case and Recall Witnesses
- Outcome
- Application dismissed.
- Judges
- ["M Muya"]
- Legal Topics
- Revision Jurisdiction, Reopening Defence Case, Recall of Witnesses, Fair Hearing, Right to Legal Representation, Article 25(c), Article 50(2)(c), Mootness/overtaken by Events
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emmanuel Kwayu Waswa
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Application to Review/revise Lower Court Order After Rejection of Request to Reopen Defence Case and Recall Witnesses
Legal Issues
- 1 Whether the High Court should revise or set aside the lower court’s order rejecting the applicant’s request to reopen the defence case and recall witnesses.
- 2 Whether the applicant’s constitutional rights to fair hearing and legal representation were breached.
- 3 Whether the application was competent where the original lower court file was not called for under sections 362 and 364 of the Criminal Procedure Code.
Ratio Decidendi
The High Court found no basis to interfere with the trial court’s refusal to reopen the defence case because the prosecution and defence had already closed their cases and the matter was only pending submissions. The application was therefore impractical, unnecessary, and overtaken by events, with no demonstrated illegality or impropriety in the lower court’s ruling.
Court Disposition
Application dismissed.
Orders
- The Notice of Motion dated 5 June 2023 is dismissed in its entirety.
- No revision orders issued.
Full Case Text
Judgment text and source record
1 paragraphs
Waswa v Republic (Criminal Revision E034 of 2023) [2026] KEHC 11699 (KLR) (24 June 2026) (Ruling) Neutral citation: [2026] KEHC 11699 (KLR) Republic of Kenya In the High Court at Nyeri Criminal Revision E034 of 2023 M Muya, J June 24, 2026 Between Emmanuel Kwayu Waswa Applicant and Republic Respondent Ruling 1.The Notice of Motion application dated 5th June, 2023 seeks the following orders; 1.Spent. 2.That the Honourable Court be pleased to review and set aside the orders issued on 22nd May, 2023 rejecting the applicant’s application to re-open the defence case and re-call witnesses to enable him to prepare and challenge evidence. 3.That the court be pleased to issue such orders that it may deem fit to prevent the ends of justice from being defeated. 2.The grounds for this application are on the face of the record. 3.According to the applicant as deponed in his affidavit sworn on 6th June, 2023. 4.That on the 22nd May, 2023 when the matter was coming up for mention to confirm filing of submissions his Counsel informed the court that they did not intend to file submissions and instead requested the court to recall PW2, PW3, PW5 and DW1 for purposes of cross-examination of the witnesses. 5.This application is opposed. 6.It is noted that the original file was not called for purposes of certifying correctness, propriety and or illegality of the Lower Court record as required under section 362 and 364 of the Criminal Procedure Code. 7.The application for re-call of the witnesses was after close of prosecution case and the defence and the matter was remaining for submissions. 8.The applicant maintains that his rights to legal representation and fair hearing were breached and denied under Article 25(c) and Article 50(2) (c) of the constitution. 9.This matter had progressed up to conclusion and what was remaining was submissions. To re-open the case would be time consuming and frustrating to the prosecution. There was nothing improper or illegal in the Lower Courts decision not to allow re-opening of the case afresh when it had reached its tail end. There were no stay orders granted by the court. This application has been over taken by events. 10.The application for revision has no merit and it is dismissed. RULING READ AND DELIVERED VIRTUALLY THIS 24TH DAY OF JUNE, 2026.................MARTIN M. MUYAJUDGEIn the Presence of:Court Assistant – Isaack Molu