[2025] KEHC 9279 (KLR)

Parties

Procedural Posture

Criminal Appeal / Application for Leave to Recall Witnesses Pending Retrial Before a Different Magistrate

Legal Issues

1. 1 Whether the applicant should be granted leave to recall PW13, DW1, and DW2 for further examination and cross-examination before a new magistrate.
2. 2 Whether the recall of witnesses is within the scope of the court's previous judgment and consistent with the principles of fair trial under Article 50 of the Constitution.
3. 3 Whether allowing the application would amount to re-litigation or abuse of process.

Ratio Decidendi

The court found that, although its previous judgment directed the taking of evidence from additional defence witnesses only, the context and the principles of fair trial under Article 50 of the Constitution required a broader interpretation. The applicant raised legitimate concerns regarding the completeness and accuracy of the original record, particularly the evidence of PW13, the investigating officer. The court held that section 146(4) of the Evidence Act and section 150 of the Criminal Procedure Code grant it discretion to allow the recall of witnesses if their evidence is essential to the just decision of the case. The recall of PW13, DW1, and DW2 was deemed necessary to clarify...

Court Disposition

application allowed

Orders

• The applicant is granted leave to recall PW13, DW1, and DW2 for further examination in chief and cross-examination.
• The trial magistrate shall allocate reasonable and limited time for this exercise and proceed to conclude the matter expeditiously.