[2014] KEHC 3266 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL REVISION APPLICATION NO. 11 OF 2013

REPUBLIC …………………………………………….APPLICANT

VERSUS

BONIFACE OKEROSI MISERA ………………1ST RESPONDENT

CEPHAS KAMANDE MWAURA ……………..2ND RESPONDENT

(From the original order in criminal case no. 44 of2010)

RULING

Boniface Okerosi Misera the 1st respondent and Cephas Kamande Mwaura the 2nd respondent are facing trial before the lower court for the offence of fraudulent acquision of public property contrary to Section 45 (1) (a) as read with Section 48 of the Anti-Corruption and Economics Crime Act No. 3 of 2003.

The record shows that 22 prosecution witnesses have already been called and the prosecution closed its case. On 27th August, 2012 the learned trial magistrate Hon . Lucy Nyambura (as she then was) ruled that both respondents had a case to answer. However, before they could tender their respective defences the Hon. Lucy Nyambura was elevated to the High Court. This matter was then taken over by another magistrate and on 31st January, 2013 the respondents elected to proceed with the case from where Hon. Nyambura had left but to recall all prosecution witnesses for further cross-examination. This step was taken Under Secton 200 (3) of the Criminal Procedure Code.

The magistrate seized of the matter ordered that all prosecution witnesses be recalled. By a letter dated 14th February, 2013 the Senior Principal Prosecution Counsel on behalf of the Director of Public Prosecutions sought revision of the said order on 3 substantive grounds.

The prosecution had closed its case and it is now time for the accused persons to defend themselves and not for the prosecution to continue adducing evidence.

The prosecution having closed its case, it will be highly irregular for its witnesses to be recalled for the benefit of the accused.

Section 200 (3) is not coached in mandatory terms and there is no indication that the magistrate strictly followed the requirement of the said section.

This court is being asked to examine the record, satisfy itself and pronounce on the legality or the propriety of the orders of the lower court made on 31st January, 2013. The court is being urged to revise and set aside the order recalling the prosecution witnesses for further cross-examination. In the meantime, this court was asked to stay the proceedings in the lower court.

The applicant and the respondents have filed written submissions addressing the issues herein and cited some authorities. The parties were also allowed to highlight the said submissions. I have read all the material before me together with all the cited authorities. During the highlighting of the submission it transpired that the respondents wished to recall only one or two of the witnesses but in particular P.W. 14. Whatever the case, all the steps sought and opposed revolve around the provisions of Section 200(3) of the Criminal Procedure Code which provides as follows,

“200(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”.

The accused person has the discretion to demand that any witness be re-summoned and reheard. Once that demand is made, the succeeding magistrate shall inform the accused person of that right. The right to be informed appears mandatory. What is not clear from this section is whether or not the court is bound by the demand of the accused person. Had the legislature intended that the court must resummon and rehear the witnesses this would have been stated clearly.

In the absence of such clear provision it is enough that the accused is informed of that right. It does not necessarily follow that the court must accede to the demand. I say so because this is a provision that may be abused. If for example a witness has given evidence and left the jurisdiction of the court, or where a witness dies or where he cannot be found even after the exercise of due diligence, an accused person may insist on that right and if granted may derail the course of justice.

The court therefore should retain the power to decide whether or not to re summon and reheard any witnesses. Each case should depend on its own circumstances. I am fortified in that holding by Section 146 (4) of the Evidence Act which states as follows,

“146(4) the court may in all cases permit a witness to be recalled either for further examination- in- chief or for further cross-examination, and if it does so, the parties have a right of further cross-examination and re-examination respectfully. “

This however should be exercised or invoked before the close of the prosecution case. Where the prosecution has closed its case, there should be no room for the invocation of Section 200 (3) of the Criminal Procedure Code. This is clear from the provisions of Section 211 of the Criminal Procedure Code which comes into play “at the close of the evidence in support of the charge”.

At that point, the court makes a decision that a case has been made out against the accused person sufficiently to require him to make a defence. That decision is not made in a vacuum. To allow the defence or accused person to recall any witness at that stage for whatever reason appears irregular. That is the position in the instant case.

In the cited authorities none had reached the stage where the present case had reached. The respondents in any case were represented by counsel all along. No prejudice has been shown shall befall them if they are not allowed to recall the witnesses.

Our justice system is advisorial. The prosecution has tendered all the evidence to prove the charge. A decision has been made that the respondents have a case to answer. It is their turn to defend themselves. I find that the order made by the learned trial magistrate on 31st January, 2013 requiring all the prosecution witnesses to be recalled was misplaced and irregular.

Accordingly, that order is set aside and the trial shall continue by the respondents defending themselves in line with the provisions of the Criminal Procedure Code.

It is so ordered.

SIGNED DATEDandDELIVEREDin court this 3rd Day of July 2014.

A.MBOGHOLI MSAGHA

JUDGE