[2006] KEHC 2699 (KLR)
The court found that confusion in the calling and testimony of witnesses between two criminal cases, involving the same accused, compromised the fairness and integrity of the trial process. Since one case had already resulted in an acquittal, remedial action could only be taken in the ongoing case. The court...
Source-derived case information.
- Citation
- [2006] KEHC 2699 (KLR)
- Parties
- Applicant: Prosecutor, Kitui; Defendant: Kamuti Mbindyo
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Revision Case 6 of 2006
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- Retrial ordered; case to start de novo and proceed expeditiously.
- Judges
- DA Onyancha
- Legal Topics
- Trial Procedure, Witness Management, Case Confusion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Prosecutor, Kitui
Applicant
Kamuti Mbindyo
Defendant
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether confusion in witness testimony between two criminal cases justifies a retrial.
- 2 Whether the court can order a de novo trial under Section 362 of the Civil Procedure Code.
Ratio Decidendi
The court found that confusion in the calling and testimony of witnesses between two criminal cases, involving the same accused, compromised the fairness and integrity of the trial process. Since one case had already resulted in an acquittal, remedial action could only be taken in the ongoing case. The court exercised its revisionary jurisdiction under Section 362 of the Civil Procedure Code to order a retrial (de novo) to ensure justice is served. The court further directed that the retrial commence within 30 days and proceed without adjournment until completion, to avoid further prejudice to the accused due to delay.
Court Disposition
Retrial ordered; case to start de novo and proceed expeditiously.
Orders
- The trial in Criminal Case No. 1208 of 2003 shall start de novo.
- The retrial shall commence within 30 days from the date of this order.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
Revision Case 6 of 2006
PROSECUTOR, KITUI .................................................................................. APPLICANT
VERSUS
KAMUTI MBINDYO ......................................................................................... ACCUSED
RULING
It has been brought to the attention of this court that most of the witnesses called to and who have testified in this case are those who were intended to testify in Kitui Principal Magistrate’s Criminal Case No. 1210 of 2003. It appears that some confusion arose and witnesses who ought to have testified in Criminal Case No. 1208 of 2003, testified in Criminal Case No. 1210 of 2003 and vice versa. Little can be done in Criminal Case No. 1210 of 2003 where accused has been acquitted, probably because of the confusion. But since Criminal Case No. 1208 of 2003 has not been completed, a remedial action of this court under Section 362 of Civil Procedure Code can be taken.
It is difficult to understand how such confusion could have occurred and little explanation has been given but it is clear to me that the confusion may not have been intended. It may also be possible that it arose because the accused person was same in both cases.
Be that what it may, I think that the best course will be to order that the trial starts de novo. It is so ordered.
In view of the fact that this case started in 2003, it will be unfair to subject the accused person (s) to another, probably deliberate slow trial once again. Accordingly, the retrial shall be commenced within 30 days and shall not be adjourned for any reason from one day to the next day, until it is completed. Orders accordingly.
Dated at Machakos this 6th day of April, 2006
Read and delivered in the presence of
D.A. ONYANCHA
JUDGE