[2022] KEHC 2323 (KLR)
The court found that, although section 200 of the Criminal Procedure Code allows for a trial to start de novo when a new judge takes over, it is not mandatory. The court must consider the circumstances of each case. In this matter, the trial was already part-heard with 8 witnesses, the case was 14 years old, and...
Source-derived case information.
- Citation
- [2022] KEHC 2323 (KLR)
- Parties
- Applicant: Republic; Defendant: Edward Kirui
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 96 of 2014
- Procedural Posture
- Criminal Case / Ruling on Application to Start De Novo After Part Heard Trial
- Outcome
- Application to start trial de novo dismissed; trial to proceed from current stage.
- Judges
- DO Ogembo
- Legal Topics
- Trial De Novo, Section 200 Criminal Procedure Code, Delay of Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Edward Kirui
Defendant
Procedural Posture
Criminal Case / Ruling on Application to Start De Novo After Part Heard Trial
Legal Issues
- 1 Whether the trial should commence de novo under section 200 of the Criminal Procedure Code given the age and history of the case.
- 2 Whether the circumstances justify refusing the application to start afresh.
Ratio Decidendi
The court found that, although section 200 of the Criminal Procedure Code allows for a trial to start de novo when a new judge takes over, it is not mandatory. The court must consider the circumstances of each case. In this matter, the trial was already part-heard with 8 witnesses, the case was 14 years old, and this would be the third time the trial would start afresh. The court held that ordering a de novo hearing would cause serious delay and was not justified. Therefore, the trial should proceed from where it had reached, with the defence retaining the right to apply for recall of witnesses.
Court Disposition
Application to start trial de novo dismissed; trial to proceed from current stage.
Orders
- The matter shall proceed from where it had reached.
- The defence may apply for recall of any witnesses who have already testified.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CRIMINAL CASE96 OF 2014
PROSECUTOR....................................................................................REPUBLIC
VERSUS
EDWARD KIRUI...................................................................................ACCUSED
RULING
I have considered the submissions of both sides. Section 200 of the criminal procedure code is not mandatory in its nature. So that an application to start de novo may be disallowed depending on circumstances. This case is a part heard, with 8 witnesses so far. It is 14 years old before this court. The court has been told this would be the 3rd time it would start a fresh. I am of the opinion that the circumstances are such that it would amount to a serious delay of this case if it is ordered to start de novo.
I therefore rule that this matter do proceed from where it had reached. The defence otherwise reserves the right to apply for recall of any witnesses who have already testified. Section 200 of the criminal procedure code duly complied with.
D. O. OGEMBO
JUDGE
15. 2.2022.
Court:
Hearing date to be fixed herein. Hearing 23rd/25th/30th May 2022.
D. O. OGEMBO
JUDGE
15. 2.2022.
Kiprono:
We apply for certified copies of the ruling. Also a date for pre-trial.
Court:
Proceedings/ruling to be prepared. Date of mention to be given for directions/pre-trial as requested by the defence. Mention 23. 3.2022.