[2020] KEHC 1150 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

CRIMINAL CASE NO 7 OF 2017

REPUBLIC..................................PROSECUTOR

VERSUS

ANTHONY SHABAN MURAGE......ACCUSED

R U L I NG

1. Anthony shaban Murage is charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. The Information before court states that the said Accused allegedly committed that offence on 13th January 2017. The Accused pleaded not guilty to that offence on December 2017. The Accused’s trial Commenced on 28th October 2019. On that day the court received the evidence of three prosecution’s witnesses. On 11th March 2020 the court received evidence of two other prosecution witnesses. In total the prosecution has called five witnesses. The testimony of all five witnesses was received when this case was heard by Justice Meoli. The said Learned judge is no longer stationed at the Kiambu High Court. I took over this matter from the Learned judge, Justice Meoli, and when this case came up for hearing before me on 11th November 2020 and on being requested to elect how the trial should proceed as per Section 200 of the Criminal Procedure Code, the Accused elected to start this trial de novo.

2. The prosecution opposed the starting of the trial de novo on the grounds that this matter was old; the witnesses would be difficult to trace because they had re-located; and further the prosecution invited the court to consider the time and availability of witnesses when ordering the hearing to start de novo.

3. According to the Accused’s Learned counsel the witnesses can easily be traced because they testified in the year 2019.

ANALYSIS AND DETERMINATION

4. The provisions of Section 200 of the Criminal Procedure Code apply Mutatis Mutandis to the High Court. Section 200 provides:

Conviction on evidence partly recorded by one magistrate and partly by another

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—

1(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. Where a magistrate who has delivered judgment in a case but has not passed sentence, ceases to exercise jurisdiction therein and is succeeded by a magistrate who has and exercises that jurisdiction, the succeeding magistrate may pass sentence or make any order that he could have made if he had delivered judgment.

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.

5. This court is faced with the scenario where five prosecution witnesses have testified before Justice Meoli. From the list of witnesses provided before court it will seem that there are three more witnesses of the prosecution yet to testify in this case. It is in a scenario such as this one that Section 200 was enacted. As it will be noted under that Section 200 the Accused may demand that any witness be re-summoned and be heard. The Court of Appeal in the case Abdi Adan Mohamed -v- Republic (2017) e KLR in discussing the case of Ndegwa -v- R (1985) e KLR and considering the provisions of Section 200 stated:

“The learned Judges in Ndegwa (supra) emphasised that the court in applying the provisions of section 200 must ensure the accused person is not prejudiced. They said:

“…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 the subject. He is the most sacrosanct individual in the system of our legal administration….”

6. But the Court of Appeal stated in the case Abdi Adan Mohamed (supra) that the re-summoning of witness in certain circumstances can be impossible. This is what the court stated in Abdi (supra):

“It must, however be remembered that it is the demand by the accused persons to re-summon” witnesses, in circumstances that make such demands impossible to grant, particularly in situations where the witnesses cannot be traced or are confirmed dead that has been the single-most challenge to trial courts. To ameliorate this, some of the considerations developed through practice to be borne in mind before invoking Section 200 include, whether it is convenient to commence the trialde novo, how far has the trial reached, availability of witnesses who had already testified, possible loss of memory by the witnesses, the time that had lapsed since the commencement of the trial and the prejudice likely to be suffered by either the prosecution or the accused.”

7. I am persuaded by the submissions of the state that this is an old matter. The offence is alleged to have occurred in the year 2017. The prosecution has called five of its witnesses. Those witnesses who testified are largely civilian witnesses. The prosecution submitted that those witnesses will not easily be traced. I note that the Accused submitted otherwise but I am on a balance of probability persuaded by the state’s submission. It is for the above reason that I find the request of the Accused cannot be acceded to. It certainly cannot be acceded to on the ground that the Accused has instructed another advocate to represent him. This is because I have perused the proceedings and I have found that the testimony of the prosecution’s witnesses who testified is readable and comprehendible.

8. In conclusion therefore, I decline to order that this case do start de novo. This case will proceed for further hearing from where it stopped before Justice Meoli.

SIGNED AND DELIVERED VIRTUALLY THIS 10TH DAY OF DECEMBER 2020.

MARY KASANGO

JUDGE

10th December 2020

Before Justice Mary Kasango

C/A: - Kevin

First Accused: - No appearance

Second accused: -

For both Accused: - Mr. Njehu holding brief for Mr. Njuguna

For the State: - Mr. Kasyoka

COURT

Ruling virtually delivered in their presence.

MARY KASANGO

JUDGE