https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10353

Ougo v Republic (Criminal Revision E092 of 2026) [2026] KEHC 10353 (KLR) (8 July 2026) (Ruling) Neutral citation: [2026] KEHC 10353 (KLR) Republic of Kenya In the High Court at Kibera Criminal Revision E092 of 2026 DR Kavedza, J July 8, 2026 Between Lucy Adhiambo Ougo Applicant and Republic Respondent Ruling 1.The applicant is charged before the Chief Magistrate's Court at Kibera with the offence of obtaining money by false pretences contrary to section 313 of the Penal Code. The matter is pending delivery of judgment. 2.By a Notice of Motion dated 4th June 2026, the applicant seeks orders staying the delivery of judgment in Kibera Chief Magistrate's Criminal Case No. 643 of 2024 and that the proceedings be reopened to enable her testify on oath, recall her defence witness for further examination and re-examination where necessary, and call additional defence witnesses before judgment is delivered. 3.The application is supported by the applicant's affidavit sworn on 4th June 2026. She depones that when the matter came up for defence hearing on 16th February 2026, she sought an adjournment because her advocate was absent. She states that the application was declined and that the defence case was thereafter closed without her being afforded an opportunity to fully present her defence. She further contends that she was denied the opportunity to re-examine her defence witness and to call other witnesses whom she considers material to her case. 4.The applicant further avers that when the matter came up for mention, the trial court made remarks suggesting that any application seeking to arrest the judgment would inevitably fail. She therefore apprehends that any application before the trial court would not receive impartial consideration. She maintains that unless this Court intervenes, judgment will be delivered in violation of her constitutional right to a fair trial under Article 50 of the Constitution. 5.I have carefully considered the application, the supporting affidavit and the proceedings of the trial court. The sole issue for determination is whether the applicant has established sufficient grounds to warrant this Court's intervention by staying the delivery of judgment and reopening the defence case. 6.Article 50(2) of the Constitution guarantees every accused person the right to a fair trial, including the right to adduce and challenge evidence, to have adequate time and facilities to prepare a defence, and to have the trial conducted fairly. The right to be heard is a cardinal principle of the administration of justice. 7.In Judicial Service Commission v Mbalu Mutava & Another [2015] eKLR, the Supreme Court stated:“The right to be heard is not only a rule of natural justice but is now a constitutional principle entrenched in Article 50 of the Constitution." 8.Similarly, in Pashito Holdings Limited & Another v Paul Nderitu Ndungu & 2 Others [1997] eKLR, the Court held:“The fundamental rule of natural justice is that a person should not be condemned unheard." 9.These authorities affirm that every accused person must be afforded a reasonable opportunity to present his or her defence before a determination is made. However, the constitutional guarantee is satisfied where the opportunity is afforded. It does not entitle a party to reopen proceedings after voluntarily closing his or her case merely because of a subsequent change of mind. 10.The record shows that on 16th February 2026 the matter proceeded for defence hearing. Contrary to the applicant's assertions, she testified in her defence, was fully heard, was cross-examined by the prosecution and thereafter voluntarily closed her defence case. Upon closure of the defence, the trial court directed the parties to file written submissions by 2nd March 2026. 11.On 2nd March 2026, the applicant informed the trial court that her submissions were ready. Having confirmed that the defence case had been concluded and submissions were complete, the trial court fixed judgment for 6th April 2026. 12.The record further shows that on 6th April 2026 the applicant failed to attend court, prompting the trial court to issue a warrant of arrest. The matter subsequently came up on 18th May 2026 when the applicant appeared before the trial court and was remanded pending further proceedings. 13.Significantly, at no point before closing the defence case did the applicant seek leave to call additional witnesses or recall her witness for further examination. Neither did she make any application before filing submissions nor before the date fixed for judgment seeking to reopen the defence case. The record is completely silent on any such request. Instead, the applicant voluntarily closed her case, confirmed that her written submissions were ready and allowed the matter to proceed to judgment. 14.The applicant's contention that she was denied an opportunity to present her defence is therefore not borne out by the record. The proceedings clearly establish that she was heard and fully participated in the defence hearing. The constitutional right to a fair hearing requires that an accused person be afforded an opportunity to present a defence. It does not guarantee repeated opportunities after a party has consciously elected to close his or her case. 15.Equally, I find no basis for the allegation that the trial court prejudged any application that might have been presented before it. In any event, the applicant never made any application before the trial court seeking to reopen the defence case. Her apprehension is therefore speculative and unsupported by the record. 16.This Court will only interfere with ongoing criminal proceedings in exceptional circumstances where there is a clear violation of constitutional rights or where intervention is necessary to prevent a miscarriage of justice. No such circumstances have been demonstrated in the present case. The application is plainly an afterthought intended to delay the conclusion of the trial. 17.I therefore find that the applicant has failed to establish any legal or factual basis to warrant this Court's intervention. The. Notice of Motion dated 4th June 2026 lacks merit and is hereby dismissed. The stay of judgment sought is declined. The trial court shall proceed with the delivery of judgment on a date to be fixed by that court on priority basis. Orders accordingly. RULING DATED AND DELIVERED VIRTUALLY THIS 8TH DAY OF JULY 2026..................D. KAVEDZAJUDGEIn the presence of:Kwaro for the ApplicantMutuma for the RespondentKarimi Court Assistant