[2015] KEHC 2137 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

Criminal Case No. 63 Of 2010

LESIIT, J.

REPUBLIC…………..………..……...................…...PROSECUTOR

-VERSUS -

COSMAS MULWA KITUYA……… …….……….………ACCUSED

COURT ORDER

1. This case was coming up for judgment today.

2. Briefly this case was heard by two judges before I took it over for hearing. Mwilu, J, as she then was, heard the evidence of 8 witnesses for the prosecution. Muchemi, J took over the case under Section 201(1) and 200 of the Criminal Procedure Code and proceeded with the case from where the previous judge left it and heard two witnesses, PW9 and 10. When I took over the case under Section 201(1) and 200 of Criminal Procedure Code the accused opted to have the case proceed from where the previous judges left off. The prosecution then promptly applied to re-call PW1 and PW10 to adduce further evidence which was not opposed. The prosecution then closed its case. After placing the accused to his defence he gave an unsworn statement. He called no witnesses and closed his case.

3. I have now had the opportunity to study the proceedings. During that exercise it became apparent to me that critical evidence was left out. That evidence is not from the two witnesses whose statements the prosecution attempted to adduce in evidence, and which the court declined. It is the evidence of the officer who took over the exhibits in this case. Specifically those marked by Mwilu, J in her proceedings as exhibit a, b and c during the evidence of PW1.

4. PW1 clearly stated on his evidence that the three items were given to him by No. 68929 Sgt Justus Munyasia. These were not produced as exhibits and they ought to have been produced as same.

5. The other piece of evidence of Dr. Njau ungai whose evidence was also recorded by Mwilu, J in his evidence, Dr. Mungai stated that he recovered two bullets from the body of the deceased CHARLES NGUGI MWIHAKI. In his evidence Dr. Mungai stated that he handed over the two bullets to P.C. Mwanzia. P. C. Mwanzia did not testify and therefore there is a disconnect in the evidence in relation to the two bullets.

6. When PW1 the Ballistic Expert was re-called to testify, he stated that he had received some exhibits from No.63938 P.C. Geofrey Mwiti on 23rd August 2012. He proceeded to examine the said exhibits as a result of which he made his report P.Exh.7.

7. These exhibits were also not produced as exhibits.

8. Section 150 of the Criminal Procedure Code gives the court the power to summon any person as a witness or re-call and re-examine a person who has already been examined. That section provides as follows:

“150. A court may, at any stage of a trial or other proceeding under this Code, summon or call any person as a witness, or examine any person in attendance though not summoned as a witness, or recall and re-examine a person already examined, and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case:

Provided that the prosecutor or the advocate for the prosecution or the defendant or his advocate shall have the right to cross-examine any such person, and the court shall adjourn the case for such time (if any) as it thinks necessary to enable the cross-examination to be adequately prepared if, in its opinion, either party may be prejudiced by the calling of that person as a witness.”

9. The power of court to summon witnesses was the subject of a case heard by LUTTA, Vice President of the Eastern Africa Court of Appeal in BUKENYA & ANOTHER VS. UGANDA 19 EA [1972] 549. The court held as follows:

“With respect, that is not quite correct. It is well established that the Director has a discretion to decide who are the material witnesses and whom to call, but this needs to be qualified in three ways. First, there is a duty on the Director to call or make available all witnesses necessary to establish the truth, even though their evidence may be inconsistent. Secondly, the Court itself has not merely the right, but the duty to call any person whose evidence appears essential to the just decision of the case (Trial on indictments Decree, S. 37).”

10. That case is binding on this court and has been adopted widely even by the Court of Appeal of Kenya. In it the court opined that where the prosecution fails to call vital witnesses, the court had not just the power but the duty to call such witnesses to testify before it. I am aware of the Court of Appeal case of Mwangi vs. Republic [1984] KLR 595 where the court stated:

“Whether a witness should be called by the prosecution is a matter within the discretion of the prosecution and the court will not interfere with that discretion unless it may be shown that the prosecution was influenced by some oblique motive.”

11. In the instant case, the issue at hand is not whether witness(es) should be called to testify for the prosecution or whether failure to call them was motivated by some oblique motive. The issue is whether crucial witnesses with material evidence to the case were left out. I find that there were vital witnesses who were not called and that their evidence was of material importance to the fair and just determination of this case. [See Daniel Njoroge Mbugua vs. Republic [2014] eKLR; NRB CA 18 of 2009].

12. I think I have said enough on the matter at this stage. For these reasons I invoke the powers given to the court under Section 150 of the Criminal Procedure Code and issue witness summons to:

1) No. 231710 CIP ALEX CHIRCHIR

2) NO. 232119 CIP PAUL SONGOK

3) NO. 68020 SGT JUSTUS MUNYASIA

4) NO. 95047770 SGT IBRAHIM MALAVA

5) P.C. MWANZIA (NO.69091)

13. These witnesses should come accompanied with the exhibits that they handled in relation to this case.

14. Those are my orders.

DATED AT NAIROBI THIS 24TH DAY OF SEPTEMBER, 2015.

LESIIT, J.

JUDGE.