[2012] KEHC 4967 (KLR)
The court found that the accused had been competently represented by his previous counsel, Mr. Obara, and that no specific instances of unfairness or violation of fair trial rights had been demonstrated. The application for a de novo trial was made only after twelve prosecution witnesses had testified and the...
Source-derived case information.
- Citation
- [2012] KEHC 4967 (KLR)
- Parties
- Applicant: Republic; Respondent: Clinton Kiio Nzamalu
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 21 of 2009
- Procedural Posture
- Criminal Case / Application for Trial De Novo After Prosecution Evidence
- Outcome
- application dismissed
- Judges
- JV Juma
- Legal Topics
- Right to Fair Trial, Change of Counsel, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Clinton Kiio Nzamalu
Respondent
Procedural Posture
Criminal Case / Application for Trial De Novo After Prosecution Evidence
Legal Issues
- 1 Whether the accused is entitled to have the trial start de novo after twelve prosecution witnesses have testified.
- 2 Whether the accused's right to a fair trial has been violated by previous counsel's representation.
- 3 Whether the application for a de novo trial constitutes an abuse of court process.
Ratio Decidendi
The court found that the accused had been competently represented by his previous counsel, Mr. Obara, and that no specific instances of unfairness or violation of fair trial rights had been demonstrated. The application for a de novo trial was made only after twelve prosecution witnesses had testified and the prosecution was about to close its case, suggesting the application was not genuine but rather an attempt to delay or frustrate the proceedings. The court held that justice must be balanced for both the prosecution and the defence, and that requiring the State to recall and re-bond twelve witnesses would be prejudicial and unnecessary. The application was therefore dismissed as...
Court Disposition
application dismissed
Orders
- The application for a de novo trial is dismissed.
- The trial shall proceed to its logical conclusion.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COUET OF KENYA
AT MOMBASA
CRIMINAL CASE NO. 21 OF 2009
REPUBLIC ………………………………………………… PROSECUTION
VERSUS
CLINTON KIIO NZAMALU …………......………………….……. ACCUSED
RULING
The accused through his lawyer MR. ATANCHA has made an application to have his trial start de novo. This application was vehemently opposed by MR. ONSERIO for the State. A brief history of the trial so far will suffice. The accused was first arraigned in court on 4th June 2009. He entered a plea of not guilty to a charge of murder. His trial commenced before me on 24th April 2011 at which trial the accused was represented by MR. OBARA Advocate. On 15th December 2011 after a total of twelve (12) prosecution witnesses had testified the accused applied to be assigned a new lawyer claiming that he had no confidence in his lawyer. It is then that Mr. Atancha was assigned to take over the trial and made this application for a de novo hearing.
I find it very surprising that it is only after twelve (12) witnesses have testified and the prosecution is about to close its case that the accused ‘suddenly realises’ that he has no confidence in his advocate. If this was a genuine complaint then he would have raised the issue far much earlier in the trial. Mr. Atancha claims that accused has been denied a fair trial. With respect I totally disagree. The accused has at all times been accorded his fair trial rights in line with the Constitution of Kenya. In any event the accused has not stated in what exact manner any of his trial rights have been violated. Likewise Mr. Atancha in declaring the services of his senior colleague to have been below par has not stated precisely how the former advocate’s services were wanting. Mr. Obara has appeared in several matters before this court. He is a senior, respected and competent lawyer. I have no doubt that he gave this case his best just as he does in all cases in which he appears. Whilst I am mindful of the rights of an accused to counsel of his choice this very belated application for a de novo trial smacks of mischief. It is in my view frivolous, vexatious and amounts to an abuse of court process. The accused had competent representation from Mr. Obara and I have no doubt that he will continue to receive competent representation from Mr. Atancha. Justice must be done to both the prosecution and the defence. I see no reason to compel the State having already availed 12 witnesses to start searching for and re-bonding the witnesses who have already testified. In short I find no merit in this application for a de novo trial and the same is hereby dismissed. I hereby direct that this trial proceed to its logical conclusion.
Dated and delivered in Mombasa this 5th day of April 2012.
M. ODERO
JUDGE
In the presence of:
Mr. Odhiambo holding brief for Mr. Atancha
Mr. Gioche for State