[2014] KEHC 719 (KLR)
The court held that under Section 200 of the Criminal Procedure Code, it is the accused's right to request that witnesses be resummoned and reheard when a new judge takes over a criminal trial. The court's role is limited to explaining this right to the accused. The prosecution's opposition to starting the trial...
Source-derived case information.
- Citation
- [2014] KEHC 719 (KLR)
- Parties
- Applicant: Republic; Defendant: Arther Onyango Ondigo
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Murder Case 32 of 2010
- Procedural Posture
- Criminal Murder Case / Ruling on Whether Trial Should Start Afresh After Transfer of Judge
- Outcome
- Application to have the trial start afresh granted.
- Legal Topics
- Right to Fair Trial, Rehearing After Judge Transfer, Section 200 Criminal Procedure Code
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Arther Onyango Ondigo
Defendant
Procedural Posture
Criminal Murder Case / Ruling on Whether Trial Should Start Afresh After Transfer of Judge
Legal Issues
- 1 Whether the accused is entitled to have the trial start afresh after a change of judge.
- 2 Whether the prosecution's objection to starting the trial afresh is valid in the absence of reasons for inability to secure witnesses.
- 3 What is the correct application of Section 200 of the Criminal Procedure Code in this context.
Ratio Decidendi
The court held that under Section 200 of the Criminal Procedure Code, it is the accused's right to request that witnesses be resummoned and reheard when a new judge takes over a criminal trial. The court's role is limited to explaining this right to the accused. The prosecution's opposition to starting the trial afresh was not supported by sufficient reasons, as they failed to demonstrate why witnesses could not be secured. Furthermore, Article 25(c) of the Constitution guarantees the right to a fair trial, which includes the right to have the case heard by the judge who will determine it. The court found that not much time had passed since the last prosecution witness was heard, and...
Court Disposition
Application to have the trial start afresh granted.
Orders
- The matter shall be heard afresh before any of the two judges at the station.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL MURDER CASE NO.32 OF 2010
REPUBLIC ….................................................................................................. PROSECUTOR
VERSUS
ARTHER ONYANGO ONDIGO …....................................................................... ACCUSED
RULING
This matter was heard before Justice Sitati who proceeded on transfer and on 4th November 2014 the matter was listed before me for directions when Mr. Kaburi appeared for Mr. Nyagwencha and stated that the defence would like the matter to proceed from where it had reached. At that stage the accused person addressed the court and stated that he would like the matter to start afresh.
Miss Mbelete for the state informed the court that the state had closed its case and therefore the matter was fixed for direction on 2nd December 2014 in the presence of Mr. Nyagwencha advocate for the accused.
On 2nd December 2014 when the matter came up for directions Mr. Ayienda appeared for Mr. Nyagwencha and submitted that since the accused had indicated that he would like the trial to start afresh he was leaving it to the court.
Mr. Majale for the state submitted that the state was opposed to the matter starting afresh on the basis that the state had closed its case and that securing witnesses to attend trial may not be possible but without giving reason as to why it would not be possible to secure the attendance of the witnesses.
Under Section 200 Criminal Procedure Code it is the accused person and not the court to demand that any witness be resummoned and reheard. The role of the court is limited to explaining to the accused person his rights.
The Court of Appeal in the case of Peter Korobia Ndegwa -vs- Republic Criminal Appeal No.125 of 1984 had this to say:-
“Section 200 is a provision of the law which is to be used very sparingly indeed and only in cases where the exigencies of the circumstances not likely but will defeat the end of justice if a succeeding magistrate 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.......
No rules of natural justice, no rules of statutory protection, no rules of evidence and no rule of common sense is to be sacrificed violates or abandoned when it comes to protecting the liberty of the subject. He is the most sacrosent individual in the system of our legal administration.”
Article 25 (c) of the Constitution provide that the right to fair trial shall not be limited and since the prosecution offered no reasons as to why it may not be possible to secure the attendance of the witnesses and having noted that not much time has passed since the last prosecution witness was heard, I hereby direct that this matter be heard afresh before any of the two judges at the station.
Signed and dated this 9th day of December, 2014
J. WAKIAGA
JUDGE.
In the presence of:
Miss Muthoni for for State
Mr. Nyagwencha for Accused
Dated this 9th day of December, 2014