[2020] KEHC 1400 (KLR)
The court found that while the lower court acted in compliance with the constitutional requirement for a speedy trial, the absence of the applicant's advocate on the hearing date resulted in the applicant being deprived of the opportunity to have his counsel cross-examine PW2. The court noted that no prejudice would...
Source-derived case information.
- Citation
- [2020] KEHC 1400 (KLR)
- Parties
- Applicant: Mwikamba Mwambi; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 105 of 2019
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- application allowed
- Legal Topics
- Criminal Revision, Fair Trial Rights, Recall of Witness, Speedy Trial, Absence of Counsel
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwikamba Mwambi
Applicant
Director of Public Prosecutions
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the lower court erred in proceeding with the hearing in the absence of the applicant's advocate.
- 2 Whether the refusal to recall PW2 for further cross-examination violated the applicant's right to a fair trial under Article 50(2)(e) of the Constitution.
- 3 Whether the High Court should revise the lower court's orders in the interest of justice.
Ratio Decidendi
The court found that while the lower court acted in compliance with the constitutional requirement for a speedy trial, the absence of the applicant's advocate on the hearing date resulted in the applicant being deprived of the opportunity to have his counsel cross-examine PW2. The court noted that no prejudice would be suffered by either party if the orders were revised, especially since the prosecution did not oppose the application. In the interest of justice and to uphold the applicant's right to a fair trial, the court allowed the application, ordered the reopening of the trial, and directed that PW2 be recalled for further cross-examination.
Court Disposition
application allowed
Orders
- Milimani Law Court, Traffic Case No. 21522/2018, Republic versus Mwarubi Mwikamba, is to be re-opened.
- PW2 is to be recalled for further cross-examination.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL REVISION CASE NO.105 OF 2019
MWIKAMBA MWAMBI.....................................................APPLICANT
VERSUS
DIRECTOR OF PUBLIC PROSECUTIONS................RESPONDENT
RULING
The applicant, MWAMBI MWIKAMBA has moved the court vide a letter dated 2. 4.2019 The applicant has sworn an affidavit in support of his claim, basically that on the material day of hearing of his traffic case No. 21522/2018, on 28. 2.2019, the case proceeded in the absence of his advocate. That there are issues that the advocate for the applicant would have wanted to take up with the witness (PW2), thus necessitating an application for recall of the witness (PW2). The said application for recall was also dismissed. These orders gave rise to the present application.
The applicant has not been opposed by the Republic.
I have considered the submissions of learned counsel for the applicant. I have also perused the proceedings and the rulings of the lower court regarding this matter. The one thing that comes out is that it is the advocate who failed to present himself before the trial court for hearing on a date fixed. In the ruling of the court, it was in compliance with the Constitutional requirement as to a speedy trial under Article 50(2)(e) of the constitution that the case proceeded in the manner in which it did.
Under section 362 of the Criminal Procedure Code;
“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court”
I have particularly considered the element of propriety of the orders of the lower court in light of the constitutional requirement to fair trial (Article 50(2)(e). Also in light of the fact that no prejudice would be suffered by either sides if the aggrieved orders are revised, and the fact the prosecution do not oppose this application. In the interest of justice, I allow the application of the applicant dated 2. 4.2019 and order that Milimani Law Court, Traffic case number 21522/2018, Republic versus Mwarubi Mwikamba, be re-opened so that PW2 may be recalled for further cross-examination. The hearing of the case would then proceed in the normal manner and be concluded without any delay.
HON. JUSTICE D. OGEMBO OGOLA
23RD OCTOBER 2020
Court:
Ruling read out in open court (on-line) in the presence of the applicant, his advocate Ms. Muhochi and Mr. Momanyi for the state.
HON. JUSTICE D. OGEMBO OGOLA
23RD OCTOBER 2020