https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6939

Owino v Republic (Criminal Appeal E232 of 2023) [2026] KEHC 6939 (KLR) (Crim) (11 May 2026) (Ruling) Neutral citation: [2026] KEHC 6939 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Criminal Criminal Appeal E232 of 2023 MW Muigai, J May 11, 2026 Between Phenny Okwaro Owino Appellant and Republic Prosecution Ruling Trial Court Proceedings 1.The Appellant was charged with the offence of Obtaining Money by False Pretenses contrary to Section 313 of the Penal Code. 2.The particulars of the charge sheet are that; On 10/11/2020 at HFC Rehani within Nairobi County with intent to defraud obtained Ksh 2,566,802/- from Alfred Omondi Achar by falsely pretending that she purchased land from Oaklands Limited a fact she knew to be false. 3.The prosecution case was by 2 witnesses; PW1 who testified on 4/5/2021 and was cross examined by Defense Counsel and PW2 who testified on 2/11/2022and was cross examined by Defense Counsel. Written Submissions were filed by both Prosecution and Defense on 23/11/2022. The Trial Court delivered Ruling on 18/1/2023 that the Accused person had a case to answer. 4.The Defense Hearing was slated for 18/1/2023 but did not take off. The record reads; ‘Sworn Defense No witness’. 5.On 20/2/2023, Counsel for the Accused person addressed Trial Court sought perusal of the Court file, making copies of the proceedings and sought directions on Application filed on 19/2/2022 and made application for recusal of Trial Court on grounds alleged that on 4/5/2021, the Court was of the view that the matter be compromised as Accused person shall pay back the Complainant the money owed and advised Accused to discuss repayment plan, the Accused was adjudged guilty even before trial. 6.Secondly, it was alleged that the Trial court declined to allow Accused [Defense] to mark for production and cross examination of the Complainant a vital document on a vital matter which Prosecution had a duty to disclose but failed to do so. 7.Thirdly, it was alleged that the matter was listed for hearing on 19/1/2022 before Court No 9 and thus the Accused person’s Advocate was in hearing ELC No 8 of 2017 and there was legitimate expectation that such change would be communicated. These allegations depicted a consistent pattern that the Trial Court controlled hearing in favor of Prosecution to the detriment of the Defense. 8.On 15/3/2023, the Trial Court delivered Ruling and recused herself from further presiding over the matter. The Chief Magistrate Milimani reallocated the matter to Court No9 on 27/3/2023, the new Trial Court handled the matter, heard and determined pending application dated 31/3/2023 on whether the matter would proceed de novo or not. On 11/7/2023, the Trial Court was to deliver Ruling and start the matter de novo. On 12/6/2023 Ruling was delivered contrary to what was delivered on 11/7/2023. The new Trial Court recused it self and matter was placed before Chief Magistrate Milimani Court No 1. 9.On 19/6/2023, Counsel for Accused person Mr Oduol addressed Court No 1 Chief Magistrate Hon L.O.Onyina on alleged serious misconduct against Hon E . Kimilu SPM & Hon M. Nanzushi SPM respectively in the conduct of Trial proceedings that deprived the Accused person fair trial and Prosecution conceded to transfer of case to another court. The Chief Magistrate delivered Ruling on 10/7/2023 and took administrative action that the matter would proceed from his Court.On same day 10/7/2023, the Accused person was informed of her rights under Section 200 (3) of Criminal Procedure Code. 10.Counsel for the Accused person Ms Matu addressed the Court that due to the manner in which evidence had been provided so far and in light of complaints made with regard to the 2 former Trial Courts presiding over the matter, the Accused person sought that the CM Court recall the Prosecution witnesses and matter starts de novo. There are 2 Prosecution witnesses, the complainant who resides abroad [US]habitually visits the jurisdiction of the Court and the second witness is Investigating Officer who resides in Kenya. 11.The Prosecution sought mention date to respond to the application and first find the Police file and find out availability of witnesses among other factors before responding to the Application.The Ruling of the Court was delivered on 4/8/2023 that the court could proceed with the matter with the evidence on record without prejudice to the Defense. Since the Accused person had been placed on her Defense informed of her rights under Section 211 CPC defense Hearing was to proceed on date to be allocated. 12.The appellant filed appeal against the decision of Hon L. Onyina CM delivered on 4/8/2023 declining the appellant/ accused application dated 31/3/2023 where the accused prayed for de novo hearing of the case. Petition Of Appeal 13.The Petition of Appeal was filed with the Record of Appeal to this Court on 17/8/2023. The High Court granted orders of stay of proceedings on 30/11/2023 and on 29/01/2024 leave was granted to the Complainant in Trial Court proceedings to be enjoined as Interested party. The Petition raised grounds summarized as follows Grounds Of Appeal 14.The Appellant contends: -1.That the Hon. Magistrate erred in law and fact in dismissing the Appellant’s Application dated 10th July 2023 seeking that the Hon. Court resummon and rehear the Prosecution Witnesses and order that the matter proceed de novo.2.That the Hon. Magistrate erred in law and fact in ignoring the background of the proceedings and failing to appreciate that the proceedings were tainted and unreliable.3.That the Hon. Magistrate erred in law and fact in failing to appreciate that over the course of the proceedings before Hon. Esther K. Kimilu (SPM) and Hon M. Nanzushi (SPM), the Appellant reasonably believed that the Hon Magistrates displayed bias against her to the detriment of her case and thus their records were unreliable.4.That the Hon. Magistrate erred in failing to exercise his discretion under Section 200 of the Criminal Procedure Code in favor of the Appellant.5.That the Hon. Magistrate erred in ignoring the fact that the Appellant raised issue with the Hon. Esther K. Kimilu (SPM)’s conduct in an application dated 20/2/2023 including the manner in which the prosecution’s case was conducted and the evidence therein recorded.6.That the Hon. Magistrate erred in ignoring the fact that both Hon. Esther K. Kimilu (SPM) and Hon. M. Nanzushi (SPM) acceded that the Appellant had raised serious issues and recused themselves from further conduct of the matter.7.That the Hon. Magistrate failed to appreciate that the object of judicial recusal is to ensure that justice between the parties is uncompromised and due process of law is realized.8.That the Hon. Magistrate erred in law and fact in failing to hold that continuing to rely on Hon. Esther K. Kimilu (SPM) and Hon. M. Nanzushi (SPM)’s written proceedings will defeat the very purpose of the recusal.9.That the Hon. Magistrate failed to appreciate that the proceedings were tainted on account of the bias against the Appellant and relying on Hon. Esther K. Kimilu (SPM) and Hon. M. Nanzushi (SPM)’s written proceedings will materially prejudice the Appellant.10.That the Hon. Magistrate erred in law and fact in failing to find that the court record as taken down by Hon. Esther K. Kimilu (SPM) is not a true reflection of the facts in the matter, the Magistrate declined to allow the Appellant’s previous counsel to mark crucial documents for identification and to cross examine the Complainant.11.That the Hon. Magistrate erred in law and fact in failing to find that Hon. Esther K. Kimilu (SPM)’s decision of 23rd November 2022 to place the Appellant on her defense was based on flawed proceedings and must be viewed as a tainted one.12.That the Hon. Magistrate erred in ignoring the statutory and time-honored formula that the Magistrate making the judgment should have seen, heard and assessed the demeanor of witnesses. A Magistrate who did not observe the evidence is not in a position to assess credibility and personal demeanor of all the witnesses.13.That the Hon. Magistrate failed to appreciate that placing reliance on Hon. Esther K. Kimilu SPM’s written proceedings will occasion a failure of justice.14.That the Hon. Magistrate erred in failing to appreciate that the matter was a suitable case for the court’s discretion allocated under Section 200 of the Criminal Procedure Code in favor of the Appellant.15.That the Hon. Magistrate erred in exercising its discretion injudiciously by disallowing the Applicant’s Application of 10th July 2023 despite there being no objection from the Prosecution.16.That the Hon. Magistrate erred in law and fact in violating the principle of judicial precedent where the Appellate Courts upheld the right to begin a Trial de novo and the principle …….’No rule of natural justice, no rule of statutory protection, no rule of evidence and no rule of common sense is to be sacrificed, violated or abandoned when it comes to protecting the liberty of a subject. He is the most sacrosanct individual in the system of our legal administration’17.That the Hon Magistrate erred in law and fact in failing to uphold that the right to a fair trial must begin from the commencement of judicial proceedings and be manifest until their culmination.18.That the Ruling and Orders of the Hon. L. Onyina (CM) delivered on 4th August 2023 are contrary to Articles 25(3) 48, 50(1) and 159(2)(a) of the Constitution of Kenya, 2010 which guarantee access to justice for all persons irrespective of their status.19.That the Ruling and Orders of the Hon. L. Onyina (CM) delivered on 4th August 2023 are contrary to Section 3 (b) & (f) of the Judicial Service Act, 2011 which requires that the Judiciary facilitates the conduct of a judicial process designed to render justice and to protect human rights.20.That the Hon. Magistrate erred in fact and in law by abdicating his discretion to counsel watching brief and further acting in dereliction of the Court’s duty by failing to enforce justice and the rule of law. Written Submissions The Appellant’s Submissions. 15The appellant frames issues as:a.whether the cumulative effect of procedural irregularities unreasonable bias compromised integrity of the record rendered the proceedings a nullity and warranted denovo trial.b.Whether the learned chief magistrate Hon Onyina misdirected himself in his discretion under Section 200 by failing to consider that the profound flaws in the proceedings made it unjust and prejudicial to continue from the existing record.c.Whether the magistrate decision to dismiss the application for de novo proceedings violated the appellant’s right under Article 25 48 and 50 of Constitution. 16.The Magistrate’s discretion under Section 200 should be exercised judicially and take into account the overarching principles of fair trial. That the application of Section 200 should not compromise the accused fundamental rights to a fair trial. The appellant relies on the case of Peter Karobia Ndegwa -Vs- Republic and Joseph Ndungu Kagiri -Vs- Republic 2016 KEHC 4153 . 17.That all factors in the trial court pointed towards denovo trial. That the previous proceedings were marred by allegations of findings of serious issues and record tampering and their foundation was rotten. 18.That the irregularities from pre-judgement and restriction of cross examination and the unreliable court record render the proceedings a mistrial. That continuation of the compromised trial will lead to irreparable prejudice. 19.That the application was made when the prosecution had called 2 witnesses, restarting the case would not cause inordinate waste of judicial time or resources. Further, the prosecution witnesses were available. The investigating officer resides in Kenya while the complainant was a resident of the USA but he often travels to Kenya. The complainant’s replying affidavit dated 12/4/2023 was also sworn in Nairobi. 20.That the request for a fresh trial can only be declined where circumstances in granting the orders would be so futile where witnesses were not available. That there was no evidence that the witnesses were incapacitated or unavailable. The burden of proof of their availability was on the prosecution. The court is referred to the case of Abdi Adan Mohamed- Vs- Republic 2017 KECA 517 and the case of Ndegwa Vs Republic. 21.That no prejudice would be suffered by calling the witnesses since their evidence would remain the same. The appellant would suffer immense and irreparable prejudice by being forced to a defense based on a record she believed to be the product of bias and inaccurate. 22.That the witnessed testified in May 2021 and November 2022 and the lapse of time is not so significant to cause loss of memory and the case involved voluminous documentary evidence. 23.That in this case, the Magistrate who determine the case will rely on records which the appellant felt that Magistrate, Hon Nanzushi should recuse herself. Further, the Magistrate who decides the case cannot assess the credibility of the witnesses who testified before Hon Kimilu. 24.Whether the appellant’s rights were violated. The appellant’s case is that the Court’s decision to continue with the tainted record constitutes a direct violation of several constitutional rights. 25.That the effect of the detailed events l was a negation of his right to fair trial which is non derogable. That the Trial Magistrate prejudged the case and the legitimacy of the record is in doubt. 26.That the Trial Magistrate cannot argue expediency or judicial economy justifies the erosion of this absolute right. That the appellant was forced to give a defense when she had lost confidence in the record. 27.Further that the right to access of justice was also violated in the trial when the proceedings were corrupted and lack legitimacy. 28.That the result of the recusal of two magistrates and discrepancy in the ruling is appearance that justice is lost in the case and public confidence is destroyed. 29.The appellant further urges that whereas the physical record remains, the moral and legal authority as a reliable impartial account of proceedings is extinguished when judicial officers disqualify themselves after acknowledging serious issues raised. 30.That to cling on such a record in the name of speed and expediency is to endorse rushed and unconsidered justice. That the appellant seeks a substantially just trial 31.That the prosecution claim that allegations of constitutional violation are to be raised before the High Court, however, every Court has a duty to uphold the Constitution. The Trial Magistrate had the obligation to consider whether continuing with the trial would violate the appellant’s right. Section 8 of the Magistrate Court’s Act confirms the Magistrate’s jurisdiction to grant appropriate redress for violation of fundamental rights arising from proceedings before it. 32.The Magistrate fell into grave error in law and principle by failing to recognize the fundamental truth and the decision to dismiss the application for de novo proceedings was injudicious and in disregard to binding precedence on violation of the appellant’s constitutional right. 33.The Appellant relies on the case of Joseph Ndungu Kagiri, Peter Karobia Ndegwa -Vs- R , R Vs Arnold Ouma Munyekenye 2016 KEHC 26 KLR The Respondent’s Submissions. 34.The prosecution frames the following issues for determination.Whether the was procedural irregularity rendering the entire proceedings a nullityWhether the court wrongly exercised its discretion under Section 200 of the Criminal Procedure Code. 35.The prosecution concedes that there are conflicting rulings on the application dated 31/3/2023. That the anomaly could be corrected within the revisionary jurisdiction of the High Court which was never preferred. 36.That the conflicting rulings did not cause prejudice and were made before the court formally assumed jurisdiction by explaining Section 200 (3) of the Criminal Procedure Code to the Appellant. 37.There is no evidence that the proceedings were tainted and unreliable. Further, there is no illegality or procedural irregularity that made the proceedings a nullity. 38.On the Court’s decision under Section 200 of the Criminal Procedure Code, the prosecution’s case is that the provision is couched in mandatory terms with regard to informing the accused his right to recall witnesses. The de novo proceedings are not mandatory. That there are no concerns on the manner the evidence of witnesses was taken down by the Trial Court. 39.Lastly, the prosecution urges that the right to fair trial is not exclusive to the Appellant but extends to the victim under the Victim Protection Act. Reliance is placed to the case of Leonard Maina Mwangi Vs DPP & 2 Others (2017) eKLR. That the accused right do not supersede the victim’s right and constitutional interpretation of rights call for the Court to strike a balance between both parties as was emphasized in the Supreme Court Petition No 23 of 2019 Joseph Lendrix Waswa vs Republic 40.The prosecution submitted that the appeal and recall of witnesses would greatly prejudice the victim’s right to a fair trial and right to have a trial begin and conclude without unreasonable delay. Interested Party Submissions 41.On 29/01/2024 the High Court granted leave to the Complainant in Trial Court proceedings to be enjoined as Interested party. 42.The Submissions consist of the following case-law Office of Director of Public Prosecution vs Peter Onyango Odongo & 2 Others 2015 KEHC91 KLR Abdi Adan Mohammed vs Republic [2017] KECA 517 KLR Leonard Maina Mwangi vs Director of Public Prosecution & 2 Others [2017] eKLR Lendrix Waswa vs Republic 2020 KESC 23 (KLR) to fortify the position that the application under Section 200 CPC should be considered in the presence of the Accused person, the Prosecution and views of the Complainant/Victim should also be considered in order for the Trial Court to reach a fair and just and informed decision to ALL parties to the proceedings. Analysis & Determination 43.The Court considered the pleadings filed by parties through Counsel, the Record of Appeal and written submissions by parties and the issue for determination is mainly whether the Ruling of 4/8/2023 should /should not be set aside and whether the Grounds of Appeal are or not established by the Trial Court record and oral and written submissions made by parties.The gist of the Appellant’s appeal is that the Trial Court vide Ruling delivered on 4/8/2023 erred in failing to exercise his discretion under Section 200 of the Criminal Procedure Code in favor of the Appellant.The Trial Court ignored the fact that the Appellant raised issue with the Hon. Esther K. Kimilu (SPM)’s conduct in an application dated 20/2/2023 including the manner in which the prosecution’s case was conducted and the evidence therein recorded. 44.Both Hon. Esther K. Kimilu (SPM) and Hon. M. Nanzushi (SPM) acceded that the Appellant had raised serious issues and recused themselves from further conduct of the matter.The Trial Court failed to appreciate that the object of judicial recusal is to ensure that justice between the parties is uncompromised and due process of law is realized.The Trial Court erred in law and fact in failing to hold that continuing to rely on Hon. Esther K. Kimilu (SPM) and Hon. M. Nanzushi (SPM)’s written proceedings will defeat the very purpose of the recusal. Recusal/disqualification Of Trial Court 45.Recusal is rooted in the principle of natural justice and ensures that a Judge does not preside over a matter where they have personal interest, bias or where their impartiality could be reasonably questioned. The Right to Fair Hearing under Article 50 of the Constitution is enshrined that every person has the right to have any dispute decided in a fair and public hearing before a Court or if appropriate another independent and impartial Tribunal.The Judicial Service [Code of Conduct and Ethics] Regulations of 2020 lists circumstances and or grounds of recusal as follows; “ Regulation 21 provides that :(1)A judge may recuse himself or herself in any proceedings in which his or her impartiality might reasonably be questioned where the judge—a)is a party to the proceedings;b)was or is a material witness in the matter in controversy;c)has personal knowledge of disputed evidentiary facts concerning the proceedings;d)has actual bias or prejudice concerning a party;e)has a personal interest or is in a relationship with a person who has a personal interest in the outcome of the matter;f)had previously acted as Counsel for a party in the same matter;g)is precluded from hearing the matter on account of any other sufficient reason;h)or a member of the Judge’s family has economic or other interest in the outcome of the matter in question.(2)Recusal by a Judge shall be based on specific grounds to be recorded in writing as part of the proceedings.In Trust Bank V Midco International (K) Ltd and 4 others 2004 eKLR. This was an application seeking orders that the court ruling on 18.12.2004 be reviewed and set aside. The ground was that the judge in that decision had, prior to his appointment as a judge, acted for the plaintiffs. The judge had not disclosed this fact to the parties. It was held that the applicant was denied the opportunity to raise the issue of disqualification and test it before the judge. There was a miscarriage of justice but not from actual bias or prejudice. 46.Applying the law and principles of recusal of judicial Officer from Court proceedings. On 4/5/2021 hearing commenced during trial with PW1 who testified and was cross examined. Thereafter, the Court record depicts various adjournments for different reasons recorded. On 19/1/2022 is the 1st time the application for recusal was mentioned. 47.grounds for recusal were; On 4/5/2021 the Court was of the view that the proceedings should be compromised as the Accused person shall pay back the Complainant money owed and advised Accused person and Complainant to discuss and arrange a repayment plan. The Accused person was adjudged guilty even before trial. 48.The 2nd incident was that during cross-examination of the Complainant by the advocate of the Accused person, the Trial Court declined to allow the Accused person to mark for production and cross examination the Complainant a vital document which relates to the matter and which the prosecution had a duty to disclose but failed to do so. 49.On 15/03/2023, the Trial Court recused itself from further hearing of the matter.With regard to the Next Trial Court where the application under Section 200 CPC was ventilated and 2 different Rulings emerged was conceded by the Trial Court and even conceded by the Prosecution ODPP in their submissions to this Court that there were 2 Rulings with different outcomes and was the basis of the 2nd recusal of the Trial Court. 50.Therefore, I find that in line with principles of natural justice ensuring fair trial and upholding rule of law at every instance the Trial Court was alleged or seemed compromised or biased the Trial Court recused itself from further proceedings of the matter. The Appellant obtained redress in both instances of cited bias. 51.Section 200 Criminal Procedure CodeSection 200 CPC provides;43.(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)deliver a judgment that has been written and signed but not delivered by his predecessor; or(b)where judgment has not been written and signed by his predecessor, act on the evidence recorded by that predecessor, or resummon the witnesses and recommence the trial.(2)……(3)Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be resummoned and reheard and the succeeding magistrate shall inform the accused person of that right.(4)Where an accused person is convicted upon evidence that was not wholly recorded by the convicting magistrate, the High Court may, if it is of the opinion that the accused person was materially prejudiced thereby, set aside the conviction and may order a new trial. 52.In Joseph Kamau Gichuki v. R CR. Appeal No. 523 of 2010, cited in Nyabutu & Another v. R, (2009) KLR 409, where the Court stressed that;“By dint of section 200(1) (b) of the Criminal Procedure Code a succeeding judge may act on the evidence recorded wholly by his predecessor. However, Section 200 aforesaid is a provision of the law which is to be used very sparingly and only in cases where the exigencies of the circumstances, not only are likely but will defeat the ends of justice if a succeeding judge does not, or is not allowed to adopt and continue a criminal trial started by a predecessor owing to the latter becoming unavailable to complete the trial. See Ndegwa v. R. (1985) KLR 535. 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.” 53.In Joseph Kamora Maro -Vs-. Republic [2014] KECA 66 (KLR), the Court of Appeal Okwengu Makhandia Sichale JJA in Malindi held that:“The position in law is that a trial Magistrate taking over a case that is partly heard is mandatorily obligated to inform an accused person of his right to recall witnesses. After an accused person has been informed of his right, he/she may elect to have the witnesses recalled. What happens thereafter is for the court to decide depending on the availability of witnesses, the length the trial has taken, because if it has taken too long, chances are that some witnesses may have left the jurisdiction of the court as was the case here or some may even have died. To this extent we are in agreement with the learned Judges of the High Court that “this provision does not oblige the succeeding magistrate to start de novo” but what is mandatory is to inform an accused of his right under section 200 (3) of the Criminal Procedure Code.” 54.In the case of Galaxy Paints Company Limited –Vs- Falcon Guards Limited [1999] KECA 136 (KLR), the Court of Appeal explained that :“Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. 55.In the instant matter applying the principles of law and case-law above, the Appellant raised as grounds of appeal that the Trial Court ignored the fact that the Appellant raised issue with the Hon. Esther K. Kimilu (SPM)’s conduct in an application dated 20/2/2023 including the manner in which the prosecution’s case was conducted and the evidence therein recorded.The Trial Court erred in law and fact in failing to hold that continuing to rely on Hon. Esther K. Kimilu (SPM) and Hon. M. Nanzushi (SPM)’s written proceedings will defeat the very purpose of the recusal.However, from the Trial Court record, there was no issue raised regarding the evidence recorded during trial was not what PW1 & PW2 testified in open Court. 56.Secondly, the particulars of bias and prejudice related only to Trial Court’s comment that the Accused should pay the money to Complainant before hearing was conducted and that a document deemed important to the case was not marked. Nowhere was the issue of proceedings recorded being in issue was raised until the Appeal. 57.Thirdly, the parties Prosecution, Defense Accused Person were in Court as each witness testified and was subjected to cross examination. Upon obtaining the proceedings for filing various applications at no point was any anomaly as regards the record raised or any concern raised or any amendment requested for. Committal Bundles 58.Fourthly, to ensure fair hearing, in all criminal proceedings Pre-trial /case management processes include provision of Witness statements and documentary evidence to be relied on during trial -Committal bundles are exchanged between the Prosecution and Defense Counsel and/or Accused person. 59.The Court of Appeal settled the position in Thomas Patrick Gilbert Chomondeley vs. Republic ; where the Court held that there is a duty on the prosecution to disclose to the accused person the evidence which they intend to rely on in supporting their case. 60.Quoting extensively from the decision of the Canadian Supreme Court of R. vs. STICHOMBE [1992] LRC (Crim.) 68 the Court of Appeal stated at page 4 thus:Our understanding of the Canadian decision is that there is a duty on the part of the prosecuting authorities to disclose to an accused person the evidence which they intend to bring before the court in support of their charge. The duty also includes disclosing to accused person evidence which the prosecution has in their possession but which they do not intend to use during the trial. Such evidence may if adduced weaken the prosecution’s case and strengthen that of the defence; whatever may be its nature the prosecution is still obliged to disclose it to the defence. The duty continues during the pre- trial period and during the trial itself, so that if any new information is obtained during the trial it must be disclosed. [Underlining ours] 61.In light of the fore going, it is therefore settled law that the accused person or through his advocate is entitled to be supplied with witness statements and other documents the prosecution intends to rely on at the trial before witnesses testify.Therefore, if the evidence on record was skewed not what witnesses testified in open Court and was subjected to cross examination, it would have been raised by /after comparing with Witness statements provided.From the record of proceedings taken on 10/7/2022 the appellant /accused person; confirmed her rights under Section 200 (3) of the Criminal Procedure Code.The Appellant’s Counsel addressed the Court that the accused would be seeking for recall of the prosecution witnesses and requested an order that the proceedings begin de novo. 62.The grounds for de novo hearing related to the way the evidence was provided and the Appellant’s complaint against the two previous Magistrates. That the witnesses were easily available. The Complainant was domiciled in the USA but he visited the country and the Investigating Officer was a resident of the Republic. Further that effluxion of time between the evidence and application for de novo hearing was not so great to occasion necessary memory loss by the witnesses. The Magistrate making the decision ought to hear and assess the demeanor and credibility of witnesses. 63.Lastly, the proceedings taken by Hon. Kimilu and the decision on case to answer were faceted and were not to be relied on. The appellant also referred court to Article 50 (5) of the Constitution on fair trial and urges that no rule of justice statutory protection should be sacrificed when liberty is at stake. 64.The Prosecution was not opposed to the application save that the case proceeds virtually to alleviate the complainant’s travelling costs.The Trial Court Proceedings confirm that on 4/5/2021, Open Court physical hearing was conducted after the Defense declined virtual hearing due to the documents involved. The Complainant flew from Texas for hearing on that day. Clearly, the Defense would require only physical hearing. Therefore, recall of Complainant would necessitate physical hearing again. 65.Office of Director of Public Prosecutions v Peter Onyango Odongo & 2 others [2015] KEHC 91 (KLR) J.A.Makau opined;. In my view Section 200 (3) of the Criminal Procedure Code protects the rights of the accused to a fair trial as guaranteed by the Constitution under Article 5O (2) of the constitution which states every accused person has the right to a fair trial, which includes other rights as set out thereunder. Section 200 (3) of CPC as couched or framed does not have any provision to protect the rights of the complainant. It is silent on the rights of the complainant.The question therefore is does the silence on the 5rights of the complainant under Section 200 (3) CPC mean the complainant's rights are not protected? The succeeding Magistrate before determining the accused demand for retrial or recalling or re-summoning of any of the witnesses, in my view, as Section 200(3) is not mandatory for the accused demand to be granted or to be allowed, the succeeding Magistrate is not supposed to deal with Section 200 (3) of C.P.C. in isolation of several articles of the constitution dealing with the Bill of Rights as Section 200 (3) of CPC is not exhaustive in itself. The succeeding Magistrate is supposed to be guided by Article 27 (1) of the Constitution, which states every person is equal before the law and has rights to equal protection and equal benefit of the law. This means the protection to fair trial is automatically granted to both the complainant and the accused. 66.The Complainant at Pg 103-106 of Record of Appeal opposed the appellant’ election for denovo proceedings. The Complainant deposed that among other reasons during trial that the appellant was represented by competent advocates and she never indicated in the Trial that counsel acted against her instructions.Section 200 CPC is not mandatory to have proceedings start de novo but it is mandatory the Accused person is informed of the right to resummon or recall witnesses. The recusal by Trial Magistrate was not tantamount to proof of bias. The Trial Court gave Ruling of Case to answer and the Succeeding Court did not have powers to set aside or sit on appeal on its own decision as orders were granted by Court of equal jurisdiction. 67.The matter commenced 10/12/2020, pending to date 6 years later. The accused person was granted bail/bond and during Trial and changed Advocates severally. He travelled from US to attend physical hearing as requested and if the Court granted the application for recall of witnesses, then the Complainant requested the Accused/ Defense to foot/cater for his travel and accommodation expenses. 68.The Complainant testified in open court produced documents and was subjected to cross-examination. Out of no fault of his own, he is to be recalled and made to incur expenses and matter is delayed 6 years to date.On the other hand, the Appellant /Accused person has obtained legal redress at every turn where tenets of fair trial have been infringed or violated by recusal of Trial Courts. 69.The Parties/Counsel had/have no issue with the current/present Trial Court save for the impugned Ruling that the matter proceed with Defense Hearing. The Trial court record does not reflect any abuse of judicial discretion or breach of fair hearing to all parties. 70.In the absence of cogent evidence of pre-judice except that the witnesses demeanor was not taken into account by Succeeding Magistrate and that the record is tainted by recusal of Magistrates and a document was not marked during cross examination; these are issues that can and will be redressed through summoning of witnesses(s) by the Trial Court or the Defense during Defense hearing under Section 146 of Evidence Act and Section 150 of Criminal Procedure Code to present evidence the crucial document and/or any other evidence withheld by Prosecution or hindered by earlier Trial Courts as alleged or the case maybe. 71.The Evidence Act envisages that although the burden and standard of proof of the charge/information statement and particulars of offence(s) remain with the Prosecution. Without shifting this burden of proof, the Act allows Accused to adduce evidence in certain cases;111.Burden on accused in certain cases(1)When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him: 72.Therefore, any evidence within the knowledge of the Appellant that was withheld by Prosecution or not recorded by Trial Court, she is at liberty to disclose during Defense Hearing.With regard to the Succeeding Court considering the demeanor of witnesses; Iam persuaded by the following case; 73.In Ng’ethe -Vs- Republic [2024] KEHC 7483 (KLR), Rhoda Rutto LJ held that :”As to the demeanor of the witnesses as submitted by the appellant that the matter starting de novo will grant the ‘new’ magistrate a chance to observe the demeanor of the witnesses pursuant to section 199 of the CPC I find no merit in this assertion. Section 199 of the CPC requires a magistrate to record such remarks as he thinks are material in respect to the demeanor of the witness whilst under examination. It is not mandatory that the demeanor of each witness to be recorded unless such demeanor is “material”. Disposition 74.Section 200 (3) of Criminal Procedure Code protects rights of accused person to ensure he/she is informed of right to recall and resummon witnesses and protect the complainant victim in determining the proceedings start de novo or not. 75.The case shall proceed for trial and incompliance with the accused right to fair trial under Article 50 of Constitution 76.This Court finds the justice of the case demands fairness to ALL parties and expediency in hearing and determination of the case. 77.In the upshot, the appeal lacks merit and is hereby dismissed. JUDGMENT DELIVERED SIGNED & DATED IN OPEN COURT CRIMINAL DIVISION HIGH COURT NAIROBI ON 11/5/2026.M.W. MUIGAIJUDGE