[2023] KEHC 26940 (KLR)

Kuria v Republic (Criminal Revision E263 of 2023) [2023] KEHC 26940 (KLR) (Crim) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26940 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E263 of 2023

LN Mutende, J

December 14, 2023

Between

David Kariuki Kuria

Applicant

and

Republic

Respondent

Ruling

1. David Kariuki Kuria, the Applicant is charged jointly with Hannah Njeri Ndungu in Makadara Chief Magistrate’s Criminal case No. 3550 of 2015 for various offences as follows:Conspiracy to commit a felony contrary to section 393 of the Penal Code; Fraudulent appropriation by directors of a company contrary to section 328 (b) of the Penal Code; Making a false statement by directors contrary to Section 329 (a) of the Penal Code; Stealing by directors contrary to section 282 of the Penal Code and Stealing by servant contrary to Section 281 of the Penal Code .

2. Per the particulars of the offence, the sum stolen amounts to Ksh 7,377,761/=

3. The applicant approached this court through an application dated 23rd April 2023 seeking setting aside of the Ruling of the trial court delivered on 31st March 2023 so as to allow the applicant to recall the witnesses for further cross examination.

4. The application for revision is premised on grounds that the magistrate erred in denying the accused his right to recall witnesses, and, in stating that witnesses may have lost their memory without evidence to conclude as such.

5. The application is supported by an affidavit deposed by the applicant where he depones that the matter was previously before Hon. Heston Nyagah, now a High Court Judge, and following his appointment, the matter was placed before the Chief Magistrate for directions and he sought witnesses to be recalled.

6. That his application was based on the nature of the case and that his current advocate was not present during trial. Further that the witnesses were known to him and that they resided at Kayole within Nairobi County hence it would not be difficult to trace them as they were also present in court when the application was made.

7. That the right to fair trial demands recalling of witnesses. That the circumstances in the case give rise to the right and the court has a duty to enhance that right. That there is no limit to cross examine witnesses, they would be re-examined by the prosecution.

8. That the burden was on the prosecution to prove that witnesses could not be traced and no allegation was made to this extent and no reason for stating that loss of memory.

9. That the accused is the focal point of the criminal trial; the nature of charges and change of judicial officer and advocate required the trial magistrate to note the demeanor and asses the credibility of witnesses. Therefore, there is an error and the court has power to interfere with the said discretion.

10. The application is opposed by the respondent who filed grounds of opposition where it is stated that the prosecution closed its case without the applicant making such an application during pendency of the trial. That: the application is made to delay the conclusion of the matter as the applicant has not pointed out the areas he seeks clarification; the court was not advised on new facts that emerged and which he was not aware of during the hearing; the court can make a decision not to recall any witness if it is not convinced of the purpose of issuing the order; all matters must be heard and determined within reasonable time without delay and lapse of time will prejudice the respondent as there will result into loss of memory and transfer of officials.

11. In a further affidavit the applicant reiterated that the right to fair hearing cannot be taken away. That he never sought adjournment during the prosecution case and that the court only declines recalling of witnesses if they cannot be traced. That the fact that witnesses were cross examined did not prevent him from recalling them and there is no limitation period for recalling witnesses. Lastly that Section 200 of the Criminal Procedure Code meant to enhance fair trial and challenge evidence at any time and that denial amounts to unfair trial.

12. Pursuant to directions given the application was to be disposed through written submissions, but the applicant’s submissions, if any were not on record.

13. It is urged by the respondent that the right to recall witnesses is not absolute under Article 50(2) of the Constitution which provides that an accused person has the right to a fair hearing including the right to adduce and challenge evidence. That Section 146 (4) of the Evidence Act provides that a witness may be recalled for cross examination or reexamination.

14. That under Section 150 of Criminal Procedure Code, the witness is recalled if it appears essential for a just decision of the case. That there would be no injustice in the matter since the applicant cross examined witnesses and litigation must come to an end and justice delayed is justice denied.

15. This is a matter where Hon. F. N. Kyambia CM took over the matter after Hon. Nyagah CM (As he then was) was elevated to the higher bench. The succeeding magistrate explained the provisions of section 200(3) Criminal Procedure Code (CPC) when the second accused /applicant herein unlike his co-accused through his counsel opted to have certain witnesses recalled.

16. The prosecution opposed the application stating that the case was brought in the year 2015 and that it was hard to trace the witnesses. Further that the applicant extensively cross examined the witnesses. In response thereto, it was urged that the witnesses lived at Kayole hence were available.

17. The court ruled that Section 200(3) of the CPC made it mandatory for the court to inform an accused of the right as provided but retained the discretion to recall witnesses depending on circumstances of the case as held in the case of R-vs- David Chepkwony Kibor (2021) eklr.

18. That the Issue before court was whether the case should start afresh as per the 2nd accused prayer or whether it should proceed from where it had reached.

19. The court took into consideration the fact of ten (10) witnesses having testified and the case being more than 7 years old having been filed in 2015. Further that the accused having been placed on their defence meant that prosecution witnesses were extensively cross examined, even if witnesses were to be traced considering the age of the matter they may have lost memory on the events leading to the case. That the matter was at defence hearing stage and not convenient to have the matter start afresh.

20. I have considered rival arguments. The provisions of Section 362 as read with Section 364 of the Criminal Procedure Code (CPC) provide for revisional jurisdiction bestowed upon the High court and the general supervisory power over proceedings before the subordinate court. The power of the court is limited to amending errors, omissions and commissions apparent on the court record or orders made outside the law and or procedure.

21. In the case of Joseph Nduvi Mbuvi -Vs- Republic [2019] eKLR, a persuasive authority, the court held that:“The revisionary jurisdiction of the High Court should only be invoked where there are glaring acts or omissions but should not be a substitute for an appeal. In other words, parties should not argue an appeal under the guise of a revision.”The court proceeded to state as follows:“In my considered view, the object of the revisional jurisdiction of the High Court is to enable the high Court in appropriate cases, whether during the pendency of the proceedings in the subordinate court or at the conclusion of the proceedings to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still ongoing, should be proceeded with. In other words, the High Court’s revisionary jurisdiction includes ensuring that where the proceeding in the lower court has been legally derailed, necessary directions are given to bring the same back on track so that the trial proceeds towards its intended destination without hitches. Not only is the jurisdiction exercisable where the subordinate court has made a finding, sentence or order but goes on to state that it is also exercisable to determine the regularity of any proceedings of any such subordinate court as well.”

22. It is not in dispute that the accused may seek to recall and cross examine witnesses under Section 200(3) of the CPC; the glaring issue is on the court’s interpretation that the applicant wanted the matter to start afresh while the co-accused wanted to proceed from where it reached.

23. Section 200(1) (b) and (3) of the CPC refer to matters which are part heard and have been taken over by a succeeding magistrate. The provision enacts that:200. (1)Subject to subsection (3), where a magistrate, after having heard and recorded the whole or part of the evidence in a trial, ceases to exercise jurisdiction therein and is succeeded by another magistrate who has and exercises that jurisdiction, the succeeding magistrate may -a.……….b.Where judgment has not been written and signed by his predecessor, act on the evidence recorded by that predecessor, or re-summon the witnesses and recommence the trial.(3)Where a succeeding magistrate commences thehearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be re-summoned and and the succeeding magistrate shall inform the accused person of that right.

24. Under Section 200(3) of the CPC, the matter may either start afresh or continue from where it reached. The right is available even in cases where the matter does not start afresh, and, the court is obligated to inform the accused person of that right.

25. In the case of Johanes Amadi –Vs- Republic (2018) eKLR the Court of Appeal stated that:“... Before a Judge proceeds with a trial in which another Judge has partly heard and recorded evidence, the accused person must be informed of his right to have the hearing proceed denovo or proceed from where the previous Judge had reached. Should the accused person choose to proceed with the trial from where it has reached, the court must inform him of his right to have any of the witness who have already testified re-summoned and re-heard.”

26. In this case, the court erred in its interpretation of the law in finding that the applicant wanted the matter to start denovo. From the proceedings while the co-accused wanted the case to proceed from where it had reached, the applicant wanted some witnesses identified as Sammy Kamau, James Nderitu and Wilson Maina to be recalled for further cross examination. This therefore brings in the question as to whether the right to recall witnesses is absolute.

27. Section 200(3) of the CPC provides that the accused “may demand” This is pursuant to the accused right to fair trial. It is however discretionary, subject to a decision to be made. The court on its part has a mandatory duty to inform the accused of this right. In doing so the court must also consider the rights of the victim. Prevailing circumstances and the interest of justice must be considered.

28. In the case of James Kamau Kihiu -vs- Republic, Criminal Appeal No. 17 of 2014, the court held that the right to recall witnesses by the accused is not absolute and will depend on the reasons given and circumstances obtaining in a case.

29. Based on judicial decisions by the courts following concrete facts presented, the option is applied sparingly and considerations by the court have been listed to include whether it would be convenient to recall witnesses and whether the application is brought as a tactic to delay the trial.

30. In the case of Ndegwa V. Republic [1985] KLR at 534 the Court of Appeal stated:“Section 200 is a provision of the law which is to be used very sparingly indeed, and only in cases where exigencies of circumstances, not only are likely but will defeat the end of justice, if a succeeding Magistrate does not, or is not allowed to adopt and continue a criminal trial started by a predecessor or owing to the latter becoming unavailable to complete the trial.”

31. In the case of Joseph Kamau Gichuki –Vs- Republic (2013) eklr the Court of Appeal stated that:“This Court has previously held that section 200 of the Criminal Procedure Code should be invoked sparingly and only in cases where the ends of justice will be defeated if a succeeding magistrate does not continue a trial commenced by his predecessor. Some of the considerations to be borne in mind before invoking section 200 include whether it is convenient to commence the trial de novo, how far the trial had proceeded, availability of witnesses who had already testified, possible loss of memory by the witnesses, the time that had lapsed since the commencement of the trial and the prejudice likely to be suffered by either the prosecution or the accused”

32. Article 50(2)(e) of the Constitution requires a trial to be initiated and be resolved without unreasonable delay. In as much as an accused is regarded in principle as too important and valuable, the Constitution and Statute provides for protection of the rights of the victim (See Article 50(9) of the Constitution and Preamble to the Victim Protection Act). Therefore, in considering the application to recall witnesses under Section 200 of the CPC, the court must balance other competing interests since such an application has potential to cause delay and final determination of the case which is against the spirit of justice.

33. This is a case where the applicant was represented by counsel who substantially cross-examined witnesses. The prosecution closed its case and the applicant was placed on his defence. The court in its discretion considered the age of the matter and was of the view that there is a possibility that witnesses had lost memory over the eight (8) year period.

34. Lapse of time, possibility of memory loss and need to consider public policy was addressed by the court of appeal in the case of Nyabutu & Another vs Republic (2009) KLR 409 as cited in the case of Abdi Adan Mohamed vs Republic (2017) eklr (supra) where the Court of Appeal stated that:…In this case the trial judge passed on after having fully recorded evidence from 7 witnesses and from the two appellants and had in fact summed up to the assessors. The trial, moreover, was not a short one but a protracted one which had taken over five years to conclude. The passage of time militated against the trial being started de novo. Though prosecution witnesses might have been available locally, re-hearing might have prejudiced the prosecution, and possibly also, the appellant because of accountable loss of memory on the part of either the prosecution witnesses or the appellants. Musinga, J. in our view acted in an attempt to dispatch justice speedily and cannot be faulted because the law permitted him to do so. It cannot be lost in mind that public policy demands that justice be swiftly concluded.”

35. I must also emphasize that the court exercising revisional jurisdiction has very limited power and at the very least is that it cannot be a tool to supervise the trial magistrates conduct of the proceedings unless breach of law has been demonstrated. This is a case where the trial court was justified in dismissing the application for recall of witnesses.

36. For that reason, the application is dismissed. The file shall be returned to the lower court for purposes of fastracking the matter with a view of meeting the goal of access to justice.

37. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS AT NAIROBI,THIS 14TH DAY OF DECEMBER, 2023. L. N. MUTENDEJUDGEIN THE PRESENCE OF:N/A for ApplicantMs. Kibathi for ODPPCourt Assistant - Mutai