[2013] KEHC 1625 (KLR)
The court found that the record was incomplete because PW7, a crucial prosecution witness, had not completed his testimony and the defence had not been given an opportunity to cross-examine him. This omission was an inadvertent oversight by the prosecution. In the interest of justice and to ensure a fair trial, the...
Source-derived case information.
- Citation
- [2013] KEHC 1625 (KLR)
- Parties
- Applicant: Republic; Defendant: Daniel Musyoka Muasya; Defendant: Paul Mutua Muasya; Defendant: Walter Otieno Ojwa
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Murder Case 42 of 2009
- Procedural Posture
- Criminal Case / Pre Judgment; Ruling on Recall of Witness
- Outcome
- Witness to be recalled for completion of testimony before judgment preparation.
- Judges
- JV Juma
- Legal Topics
- Murder Trial, Recall of Witness, Right to Cross Examination
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
Daniel Musyoka Muasya
Defendant
Paul Mutua Muasya
Defendant
Walter Otieno Ojwa
Defendant
Procedural Posture
Criminal Case / Pre Judgment; Ruling on Recall of Witness
Legal Issues
- 1 Whether the failure to allow the defence to cross-examine PW7 renders the record incomplete.
- 2 Whether the court should recall PW7 to complete his testimony in the interest of justice.
Ratio Decidendi
The court found that the record was incomplete because PW7, a crucial prosecution witness, had not completed his testimony and the defence had not been given an opportunity to cross-examine him. This omission was an inadvertent oversight by the prosecution. In the interest of justice and to ensure a fair trial, the court invoked its powers under section 150 of the Criminal Procedure Code to recall PW7 so that he could complete his testimony and the defence could exercise its right to cross-examination. The court held that this step was necessary to ensure the completeness of the record and to enable the court to reach a just decision.
Court Disposition
Witness to be recalled for completion of testimony before judgment preparation.
Orders
- PW7 Gibson Gube Tunje to be recalled to complete his testimony.
- Defence to be given opportunity to cross-examine PW7.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL CASE (MURDER) NO. 42 OF 2009
REPUBLIC…………….....………PROSECUTION
VERSUS
1. DANIEL MUSYOKA MUASYA
2. PAUL MUTUA MUASYA
3. WALTER OTIENO OJWA.....……..…ACCUSED
RULING
The three accused persons herein jointly face a charge of murder. The matter is before this court for the preparation of the judgment. However I have carefully perused the court record and I find the same to be incomplete. One witness being PW7 GIBSON GUBE TUNJE did not complete his testimony. This witness took the stand on 9th February, 2011 and gave his evidence in chief. He was however stepped down in order to await the availability of a document for him to identify. The prosecution closed its case without ever recalling PW7. The defence therefore had no opportunity to cross-examine him. I am certain that this was an inadvertent oversight. In my view PW7 was a crucial witness whose evidence is necessary to enable this court reach a just decision. In the interest of justice he ought to be allowed to conclude his testimony and the defence as of right must be given a chance to cross-examine him. To ensure completeness of the record I invoke the court’s powers under section 150 of the Criminal Procedure Code and direct that the said witness be re-called in order to complete his testimony before this court can proceed to prepare the judgment.
M. ODERO
JUDGE
In the presence of:
Mr. Egunza h/b Mr. Magolo
Mr. Jami for State
Court Clerk Mutisya
Court:
Hearing 8th November, 2013 for PW7 to complete his testimony.
M. ODERO
JUDGE
30TH OCTOBER, 2013