[2022] KEHC 1215 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

CRIMINAL CASE NUMBER E002 OF 2021

REPUBLIC...................................................................................................PROSECUTOR

VERSUS

EULOGUE CHRISTIAN BALEDI KADIMA.................................................ACCUSED

RULING

1. Eulogue Christian Baledi Kadima, the accused herein is charged with the offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code. It is alleged that on 7th January 2021 at Syokimau Ferndale Court in Athi River Sub-County within Machakos County, he murdered Elizabeth Koki Musyoki.

2. The hearing of this matter commenced before Kemei, J and 4 witnesses testified before Kemei, J was transferred to Bungoma. On 18th November, 2021, Muigai, J recused herself from handling this matter and the matter was placed before this Court. By then the directions under section 200 of the Criminal Procedure Code had not been issued.

3. When this matter was placed before me the accused appealed that the hearing starts de novo. That application was opposed by the other parties to the proceedings. It is that application that is the subject of the present ruling.

4. In his submissions the accused cited Section 200(3) of the Criminal Procedure Code and Section 34 of the Evidence Act and submitted that in his current scenario, the desirability of a trial Judge to commence and conclude a trial is very central to the applicant as this will amount to the tenets of a fair trial as enshrined under Article 50 of the Constitution and in light of the fact that the trial courts have since changed. In support of his submissions the accused relied on the case of Abdi Adam Mohammed vs. Republic [2017] eKLR.

5. While appreciating that there is no exclusive provision for a matter to start de-novo, he urged the Court to consider his prayer sought based on how far the trial proceedings have reached taking into account the fact that the Prosecution had initially intimated that it intended call 16 witnesses but later dropped the number to 8. According to the accused, there is no hindrance with regard to the availability of the prosecution witnesses and the turn around time of the trial process due to the reduced number of the prosecution witnesses to be availed. He urged the Court to consider both parties when making directions so as not to cause any prejudice to either.

6. In support of his case, he referred to the case of Director of Public Prosecution vs. Kipyegon Josphat & 2 others [2019] eKLR.

7. In seeking to have the trial startde novothe accused expressed his willingnessto attend trial to finality in the interest of justice and contended that the previous proceedings have been characterised by on goings not originating from his end but occasioned by change of trial courts overtime. It was his urging that this matter starts de-novo for a quicker, faster & equitable trial process as enshrined under Article 23(1) of the Constitution.

8. The accused then submitted on the issue of his right to bail which is not the subject of the present ruling.

9. According to him, since he has been undertaking proceedings on my own due to lack of legal representation, which is one such way of achieving fairness in a criminal trial as enshrined under Articles 24, & Article 50(2)(g)(h) of the Constitution in having the matter start de novo, the Court would be ensuring that his right to a fair trial as per Article 50(2)(g)(h) is protected. In this regard, he cited the decision of the Court of Appeal in David Njoroge Macharia vs. Republic (2011) eKLRand argued that this court has jurisdiction to grant prayers sought pursuant to Article 23, 27, 49, 50 & 165 of the Constitution.

The State’s Case

10. The application was opposed by the State. According to Mr Bernard Ngetich, the Learned Prosecution Counsel. According to him, one of the witnesses called was a relative of the deceased and to make her repeat the events in Court sessions is not only cruel but also inhuman. It was his view that starting the case de novo will not only amounts to inordinate delay but also to procedural technicality and starting the matter de novo goes against the spirit and letter of the Constitution as envisaged in Article 159(2)(b) and (d) of the constitution of Kenya 2010. According to him, Article 27 of the Constitution provides equality and freedom from discrimination as every person is equal before the law and has the right to equal protection and equal benefit of the law while Article 28 of the Constitution protects the dignity of every citizen thus, the victim's dignity will be violated by the Applicant’s use of Section 200(3) of the Criminal Procedure Code, to start the matter de novo which infringes on the constitutional right.

11. Learned Counsel cited Article 47 of the Constitution and submitted that considering the need for administrative action to be expeditious, efficient, lawful, reasonable and procedurally fair, the invocation of Section 200(3) of the Criminal Procedure Code by the Applicant at this stage of the proceedings only leads to unreasonable delays noting that Article 47 not only protects the accused persons but also the complainant in any criminal proceedings.

12. The Respondent further submitted that Article 50 of the Constitution seeks not only to protect the accused persons but also the complainant from long and emotional trials and that this court is enjoined to not only protect the rights of an accused but also balance the rights of parties in a case. It was his position that pursuant to Art 50(9) of the Constitution, 2010 victims of offences have since been incorporated as parties in a criminal case with rights such as are legislated under the Victims Protection Act hence their rights and interests too must be considered in the whole equation when determining whether to allow a case to be commenced de novo when an accused chooses to exercise his discretion. In support of the submissions he cited Abdi Adam Mohammed vs. Republic [2017] eKLR and Ndegwa vs. Republic [1985] KLR at 534 and submitted that Section 200 has its limitations which include; whether it is convenient to commence the trial de novo, how far the trial has reached, the availability of witnesses who have already testified, possible loss of memory by the witnesses, the time that has lapsed since the commencement of the trial and the prejudice likely to be suffered by either the prosecution or the accused.

13. It was submitted that in this case, the language of Section 34 is wide enough to encompass situations where the witness who had already testified is dead, or cannot be found, or is incapable of giving evidence, or is prevented by the accused person from attending court, or where his presence cannot be obtained without an amount of delay or expense which in all fairness would be unreasonable. According to the State, the Applicant has not raised any compelling reason as to why the matter should start de novo particularly since the Constitution provides for the timely conclusion of matters and bearing in mind the nature of the offence against the Applicant herein, the same should be taken into consideration in his application. It was further submitted that de novo hearing should not be taken as an opportunity to fill in gaps noted during the hearing by bringing a new set of evidence for the repeat trial. This is because a de novo hearing is a continuation of a trial and not a second trial and reliance was placed on the decision of the Indian Supreme Court inAjay Kumar Ghoshal etc. vs. State of Bihar & ANR. [Criminal Appeal Nos. 119-122 Of 2017where it was held that:

“A 'de novo trial' or retrial is not the second trial; it is continuation of the same trial and same prosecution. The guiding factor for retrial must always be demand of justice.”

14. It was therefore submitted that Section 200(3) of the Criminal Procedure Codewas not intended to aid an accused person to make a blanket request for the recall of witnesses without laying sufficient basis why he wants such witness recalled. In addition, Article 159 (2) (a) (b) and (d) of the Constitution deals with justice to all irrespective of status, justice not being delayed and being administered without undue regard to procedural technicalities. That the accused and the complainant should get justice without delay and should be administered without undue regard to procedural technicalities. That the accused and the complainant are entitled to justice without procedural technicalities and discrimination. The Court in determining an application under Section 200(3) of the Criminal Procedure Code, it was argued, should take into account with Article 28 of the constitution of Kenya 2010 which provides every person has inherent dignity and the right to have that dignity respected and protected.

15. According to the State, the application of Section 200(3) of the Criminal Procedure Code is commonly abused especially where the application is made with a view to defeat the ends of justices and especially where the accused knows the witnesses cannot be traced or are dead or the complainant cannot be traced or cannot get the witnesses without the enormous expense or the application is made to cause witnesses to have no faith with the court system and fail to turn up or where the case has been pending for long period without being determined, such applications for witnesses to be recalled in my view should not be granted especially where the accused has had the opportunity to cross-examine witnesses and specifically where the matter had been pending for a long time. This is because granting such an application, the court may be acting contrary to article 47, 50(2)(e) and 159(2)(d) of the constitution which demands that justice shall not be delayed, and trial should be concluded without unreasonable delay and lastly everyone has a right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

16. In the State’s submissions, Section 200(3) of theCriminal Procedure Code gives an accused person an opportunity to demand to have any witnesses recalled. This Section makes it mandatory for succeeding judicial officer to inform the accused person of his right to have any of the witness recalled for cross-examination or to testify again. It was however, noted that it is not mandatory to recall the witnesses for either cross-examination or to give evidence as far as this section is concerned with but it is mandatory to explain the accused his rights, the failure to inform the accused of his rights under that Section renders the subsequent proceedings a nullity.

17. In light of the above, the State urged that the Applicant’s prayer for the matter to start de novo be dismissed and the matter to proceed to its logical conclusion without delay.

Victim’s Case

18. In opposing the accused’s application, the family of the deceased (the Victim) submitted that the accused had not presented any evidence or reason to necessitate the case to begin de novo. It was submitted that under Section 200(3) of the Criminal Procedure Code, where a case is part heard and a judicial officer ceases to exercise jurisdiction the matter is succeeded by another Magistrate/judicial officer an accused may demand that any witnesses be re-summoned and reheard and the succeeding magistrate/judicial officer shall inform the accused of that right.

19. In this case it was submitted that the case is part heard whereby 4 witnesses have testified and the accused did not object to any of them adducing evidence. He did not raise any challenge or issue when evidence was being led in court on account that he did not have legal representation. According to the record, a counsel had been appointed by the court under the pro bono scheme for the accused with whom they later fell out and the advocate was discharged on 12th March, 2021.

20. It was submitted that the accused later on was denied bail however during the bail hearing the court enquired from him if he would urge the application without counsel and he responded in the affirmative. Once again, the court informed him of the right to be represented by a counsel of his own choice but he elected to represent himself. Even after the case was set down for hearing the accused has had on diverse dates expressed that he would hire a private lawyer to represent him. This, it was submitted, illustrates he had knowledge and was duly informed of the right to have a counsel of his choice. He once again retorted that he would represent himself. It was therefore contended that the court having taken the accused’s views he cannot now turn around and claim that the reason he needs the case to begin is because he intends to engage a counsel.

21. It was submitted that the accused has on numerous times raised or filed applications meant to delay/defeat and or frustrate the victims in their quest for justice. The requests, it was submitted, are usually made in bad faith and taking into account the judicial time and resources spent in hearing this case the accused’s request should be declined since he has misapplied the provision of Article 50(2) of the Constitution on fair trial. It was submitted that though the said Article provide that an accused person has a right to choose and be represented by an advocate and to be informed promptly, the court cannot be faulted by a party who elected free from any coercion, threat, duress or undue influence to proceed without a counsel since the provision only obligates the court to inform an accused person of the right to be represented by an advocate. Since this burden was satisfied and the court appointed counsel only for the accused to either fall out and or reject them with an expression he would engage one the reasons for starting the case de novo cannot be so solely he had no counsel.

22. According to the victim’s family, the accused is flip-flopping the issue of legal representation yet he has no advocate in mind he would engage. If the court was to cede to demands made by the accused, it should look at the antecedents. This issue of legal representation has been dealt with in the past and unless the accused is applying for review where one ought to demonstrate the change in circumstances to necessitate a variation of the orders directing the accused to proceed with the hearing without an advocate. It was submitted that the accused cannot state that there is/was any prejudice occasioned on him when the case proceeded without a counsel without even indicating what prejudice he suffered if any.

23. According to the family, a court, in exercising jurisdiction on a question under section 200 (3) of the Criminal Procedure Code, should be minded on the need to do justice and that a party who acquiesced his right to counsel cannot be heard to claim he is to be prejudiced since the tenets of a fair trial were observed and upheld. In their submissions, judicial discretion cannot be exercised in the accused’s favour when his acts/conduct illustrate that he waived his right to counsel. The Court was urged to look on the totality of the circumstances and find that no prejudice was/could be suffered by the accused. In any case having waived the right to counsel it cannot be that now since the trial judge was transferred he can make a request to have the request begin de novo.

24. In support of the submissions, reliance was placed on Ndegwa vs. R [1985] eKLR, Paul Kabiru Muriithi vs. R [2019] e KLRand Adan Mohamed vs. R [2017] e KLRand it was submitted that in considering an accused request the court is to be minded of:

(a) How far the trial has reached.

(b) Availability of witnesses who had testified

(c) Possible memory loss by the witnesses.

(d) Time lapse since the commencement of the trial.

(e) The prejudice to be suffered by the prosecution and the witnesses.

25. Regarding the availability of the witnesses sought to be re-summoned, it was submitted that in this case there have been 4 witnesses who testified and were cross examined by the accused at length. There is no evidence that there was any question he needed to pose to them that he did not or was barred and he advanced no reason other than prejudice which is unsubstantiated for the matter to begin de novo. Accordingly, it was submitted that the accused failed to satisfy the criteria of special circumstances to necessitate the case to begin afresh. The nature of the offence and the evidence led by the witness who testified would only lead the court to a finding adopting the evidence taken by Justice Kemei. The considerations highlighted hereinabove would guide the court and lead to a finding declining the request to commence the trial de novo. In this regard the Court was urged to adopt the findings in Mercy Mugure vs. R {2018} e KLR and R vs. Wellington Lusiri [2014] eKLRand to find and so hold that the accused’s application to have the case begin de novo is unmerited. The court was also urged to consider the nature of witnesses who testified, the psycho social effects of having to recall them over an incident that affected their loved one and or employer. The record, it was submitted, would reflect the emotional trauma the deceased sister would undergo despite having broken down severally during the trial. The victim’s quest is for justice to be seen to be done and the sooner the better for closure and the culprit(s) be brought to book with a finding of guilty. The Court was therefore urged to decline the accused’s request and direct the case be heard from where it last stopped.

Law Society of Kenya’s Case

26. The application was similarly opposed by the Law Society of Kenya.

27. According to the Society, that it may not be easy to procure the attendance PW1 who is no longer in employment of the deceased family and that the Prosecution has expressed difficulty in tracing the witness. It is similarly difficult to trace PW2. Further,PW3, the sister to the deceased, will suffer trauma if forced to repeat the testimony afresh. In addition, the trial has been a protracted one, with three witnesses testifying for a period of twelve months. Re-hearing, it was submitted, will prejudice the prosecution because of possible loss of memory on the part of either the prosecution witnesses or the accused. It was further submitted that it is obvious that the accused, who has not given any plausible reason for recalling the witnesses, is determined to frustrate the trial. To the LSK, there is no prejudice to the accused person if the court relies on the testimonies of the witnesses who had testified before.

28. The Court was urged to invoke and apply Section 34 of the Evidence Act and curb the abuse of the court process since the accused appears to be determined to frustrate the trial. Reliance was also sought in the case of Abdi Adan Mohammed vs. Republic [2017] eKLRand it was submitted that the above facts constitute compelling reasons for this Court to deny the applicant bail his request to have the matter start de novo. It was urged that this Court should balance the interest of the parties and decline the accused person’s application.

Determination

29. I have considered the issues raised above. As stated at the beginning of this ruling, the matter revolves around the interpretation and application of section 200 of the Criminal Procedure Codewhich provides as follows:

‘(1) Subject to subsection (3), where a magistrate, after having heard and recorded the whole or part of the evidence in a trial, ceases to exercise jurisdiction therein and is succeeded by another magistrate who has and exercises jurisdiction therein and is succeeded by another magistrate who has and exercises that jurisdiction, the succeeding magistrate may –

(a) deliver a judgment that has been written and signed but not delivered by his predecessor; or

(b) where judgment has not been written and signed by his predecessor, act on the evidence recorded by that predecessor, or resummon the witnesses and recommence the trial.

(2) Where a magistrate who has delivered judgment in a case but has not passed sentence, ceases to exercise jurisdiction therein and is succeeded by a magistrate who has and exercise that jurisdiction, the succeeding magistrate may pass sentence or make any order that he could have made if he had delivered judgment.

(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.

(4) Where an accused person is convicted upon evidence that was not wholly recorded by the convicting magistrate, the High Court may, if it is of the opinion that the accused person was materially prejudiced thereby, set aside the conviction and may order a new trial.

30. For completeness of the record, section 201 of the Code provides that:

(1) The Chief Justice may make rules of court prescribing the manner in which evidence shall be taken down in cases coming before the High Court, and the judges shall take down the evidence or the substance thereof in accordance with those rules.

(2) The provisions of section 200 of this Act shall apply mutatis mutandis to trials held in the High Court

31. In Ndegwa v. R (1985) KLR 535Madan, CJ, Kneller and Nyarangi, JJ.Aexpressed themselves as hereunder:-

“It could also be argued that the statutory and time honoured formula that the trial magistrate being the best person to do so, he should himself see, hear, assess and gauge the demeanour and credibility of witnesses. It has been and will be so in other cases that will follow. In this case, however, the second magistrate did not himself see and hear all the prosecution witnesses even though he said that he carefully "observed" the evidence given by the prosecution witnesses. He therefore was not in a position to assess the personal credibility and demeanour of all the witnesses in the case. A fatal vacuum in this case in our opinion…for these reasons we have stated, in our view the trial was unsatisfactory…No rule of natural justice, no rule of statutory protection, no rule of evidence and no rule of common sense is to be sacrificed, violated or abandoned when it comes to protecting the liberty of the subject. He is the most sacrosanct individual in the system of our legal administration….”

32. InJoseph Kamau Gichuki v. R CR. Appeal No. 523 of 2010,cited in Nyabutu & Another v. R, (2009) KLR 409,the Court stressed that;

“By dint of section 200(1) (b) of the Criminal Procedure Code a succeeding judge may act on the evidence recorded wholly by his predecessor. However, Section 200 aforesaid is a provision of the law which is to be used very sparingly and only in cases where the exigencies of the circumstances, not only are likely but will defeat the ends of justice if a succeeding judge 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. See Ndegwa v. R. (1985) KLR 535. In this case the trial judge passed on after having fully recorded evidence from 7 witnesses and from the two appellants and had in fact summed up to the assessors. The trial, moreover, was not a short one but a protracted one which had taken over five years to conclude. The passage of time militated against the trial being startedde novo. Though prosecution witnesses might have been available locally, re-hearing might have prejudiced the prosecution, and possibly also, the appellant because of accountable loss of memory on the part of either the prosecution witnesses or the appellants. Musinga, J. in our view acted in an attempt to dispatch justice speedily and cannot be faulted because the law permitted him to do so. It cannot be lost in mind that public policy demands that justice be swiftly concluded.”

33. The said cases were cited by the Court of Appeal in Abdi Adan Mohamed vs. Republic [2017] eKLR where it held that:

“As much as it is practically possible it is highly desirable that the trial magistrate or judge must hear the case to conclusion and ultimately render judgment as it is important for the final arbiter to be in a position to weigh the evidence taken together with his or her observation of the demeanour of witnesses…In other words Section 200, as was emphasised in Ndegwa (supra) will be resorted sparingly and only in cases where the exigencies of the case dictates. Even where the trial magistrate has been transferred, arrangements ought to be made for him or her to return to the former station to complete the trial, unless in cases where only a few witnesses had testified. In such a case the succeeding magistrate may continue with the trial from the stage it had reached. The provision can also be used where the evidence already recorded is more or less formal or largely uncontroverted…Section 200 envisages two situations in a trial that is incomplete at the time the trial magistrate ceases to exercise jurisdiction. The trial magistrate will have either recorded the whole or part of the evidence. Where judgment has been written and signed by the former magistrate, the succeeding magistrate is only required to deliver it. Where all the witnesses have been heard and the trial magistrate is transferred, no issue arises. The succeeding magistrate may act on the recorded evidence. But the succeeding magistrate may also recommence the trial and resummon witnesses. The transition of criminal cases from a magistrate or judge who has ceased to have jurisdiction to the one succeeding him or her remains a matter of concern.”

34. The Court however appreciated that:

“Problems are normally encountered in the last scenario where the succeeding magistrate decides to adopt the evidence recorded by the predecessor or altogether recommence the trial. In that case the accused person may demand that any witness be re-summoned and re-heard and the succeeding magistrate shall inform the accused person of that right. As we have said earlier where only a handful of witnesses have testified or where the evidence so far recorded is not contested or is only formal in nature, the hearing need not startde novo. The re-summoning of a witness or witnesses and re-hearing of the case is intended to ensure that the succeeding magistrate is able to assess personally and independently the demeanour and credibility of the particular witness or witnesses and to weigh their evidence accordingly...Section 200 therefore entrenches the accused person’s rights to a fair trial as provided for today under Article 50(1) of the Constitution. It must, however be remembered that it is the demand by the accused persons to re-summon witnesses, in circumstances that make such demands impossible to grant, particularly in situations where the witnesses cannot be traced or are confirmed dead that has been the single-most challenge to trial courts. To ameliorate this, some of the considerations developed through practice to be borne in mind before invoking Section 200 include, whether it is convenient to commence the trialde novo, how far has the trial reached, availability of witnesses who had already testified, possible loss of memory by the witnesses, the time that had lapsed since the commencement of the trial and the prejudice likely to be suffered by either the prosecution or the accused…Was Section 34 aforesaid intended to supply the evidence envisaged by Section 200 so that upon a magistrate who succeeds another who has partly heard a case can rely on the earlier recorded evidence if it is demonstrated that the witness sought to be re-called for the reasons, among others that the witness is dead? Where, in the language of Section 200(3) the accused demands that any witness be “re-summoned and re-heard,” the demand must be subject to availability of the witnesses sought to be re-summoned. It, of course, will be impractical where it is demonstrated that the witness sought to be re- summoned is deceased, to insist on calling such a witness. Similarly if a witness cannot be traced and it is demonstrated to the satisfaction of the court that efforts to trace him have failed, the magistrate or judge may adopt and rely on the evidence on record previously recorded by the outgoing magistrate or judge. That is why in demanding the re-summoning of any witness, the accused person must do so in good faith. The language of Section 34 is wide enough to encompass situations where the witness who had already testified is dead, or cannot be found, or is incapable of giving evidence, or is prevented by the accused person from attending court, or where his presence cannot be obtained without an amount of delay or expense which in all fairness would be unreasonable. In such a case the evidence recorded by the previous trial magistrate or judge is admissible in the trial by the succeeding magistrate or judge. To resort to previously recorded evidence under Section 34, the proceeding must be between the same parties as the previous proceeding and in criminal trial the parties are deemed to be the prosecutor and the accused person; the adverse party in the first proceeding had the right and opportunity to cross-examine the witnesses; and the questions in issue were substantially the same in the first as in the second proceeding.”

35. In the said case, the Court explained that:

“We reiterate what the Court said in Ndegwa v. R. (supra) that the most sacrosanct individual in the system of our legal administration is the accused person. By reviewing his order without first hearing the appellant the magistrate erred and the appellant was thereby prejudiced. It ought to be remembered always that where an accused person demands for the recalling of a witness or witnesses who are said to be unavailable due to death, or cannot be found, or is incapable of giving evidence, or whose presence cannot be obtained without unreasonable or expense, the burden of proving these things is on the prosecution. At no stage did the prosecution avail evidence of which witnesses they were unable to avail and why. Throughout the issue for some time was that the availability of the prosecution. Towards the end, it was generally intimated that the investigating officer had difficulty in tracing some witnesses. What is more telling is the fact that even after the trial magistrate ordered that the trial would proceed from where the last magistrate stopped, the prosecution sought time to establish who in the list of witnesses had not testified. For the reason that the trial magistrate failed to establish why the witnesses could not be called and instead went ahead for review his own order without giving the appellant an opportunity to comment on the prosecution application, there was a mistrial. Though alive to the history of the trial, the learned Judges merely agreed with the course employed by the learned magistrate to adopt the evidence presented before his predecessor but erred for failing to interrogate whether there was any basis for the magistrate to do so without establishing why the witnesses were unavailable…As we conclude we think this appeal demonstrates quite clearly how Section 200 has been applied mechanically in disregard to the implications on the overall administration of justice, even in cases undeserving that ought to proceed without re-calling witnesses or those that should be completed by the outgoing magistrate, for example, in the matter before us, the trial that commenced in 2008 was not concluded until 2012, a period of 4 years due to transfers of trial magistrates...Trial courts ought to comply with the guidance given in the case of Ndegwa v. R [supra] that Section 200 should be used sparingly; that in cases where only a few witnesses have testified and are available, a new trial may be ordered.”

36. From the foregoing, several principles can be deduced as regards section 200 of the Criminal Procedure Code and these principles, in my view are as follows:

(a)As much as it is practically possible it is highly desirable that the trial magistrate or judge must hear the case to conclusion and ultimately render judgment as it is important for the final arbiter to be in a position to weigh the evidence taken together with his or her observation of the demeanour of witnesses.

(b) The transition of criminal cases from a magistrate or judge who has ceased to have jurisdiction to the one succeeding him or her remains a matter of concern.Section 200, should be resorted to very sparingly and only in cases where the exigencies of the case dictates; the circumstances, not only are likely but will defeat the ends of justice if a succeeding judge 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; that that in cases where only a few witnesses have testified and are available, a new trial may be ordered.

(c)Even where the trial magistrate has been transferred, arrangements ought to be made for him or her to return to the former station to complete the trial, unless in cases where only a few witnesses had testified.

(d)Sincethe re-summoning of a witness or witnesses and re-hearing of the case is intended to ensure that the succeeding magistrate is able to assess personally and independently the demeanour and credibility of the particular witness or witnesses and to weigh their evidence accordingly, Section 200 entrenches the accused person’s rights to a fair trial as provided for today under Article 50(1) of the Constitution. In the system of our legal administration, the most sacrosanct individual is the accused person.

(e) The provision may be used only a handful of witnesses have testified orwherewhere the evidence so far recorded is not contested or is more or less formal in nature.

(f) In making a determination, some of the considerations developed through practice to be borne in mind before invoking Section 200 include, whether it is convenient to commence the trialde novo, how far has the trial reached, availability of witnesses who had already testified, possible loss of memory by the witnesses, the time that had lapsed since the commencement of the trial and the prejudice likely to be suffered by either the prosecution or the accused.

(g) In demanding the re-summoning of any witness, the accused person must do so in good faith.

(h) Where an accused person demands for the recalling of a witness or witnesses who are said to be unavailable due to death, or cannot be found, or is incapable of giving evidence, or is prevented by the accused person from attending court, or whose presence cannot be obtained without unreasonable or expense which in all fairness would be unreasonable, the burden of proving these things is on the prosecution.

(i) Section 200 ought not to be applied mechanically in disregard to the implications on the overall administration of justice, even in cases undeserving that ought to proceed without re-calling witnesses or those that should be completed by the outgoing magistrate.

37. In this case, as stated hereinabove, 4 prosecution witnesses had testified by the time Kemei, J was transferred and Muigai, J recused herself from the matter. While that number is, on the face of it, small, as held in Nyabutu & Another vs. R (supra) the availability of the prosecution witnesses locally is not the only determinant factor since such factors as prejudice to the prosecution, and possibly also, the accused due to accountable loss of memory on the part of either the prosecution witnesses or the accused are all factors to be taken into consideration. Where a re-hearing may subject the witness to possible emotional harm and trauma, the Court may well be justified in declining to subject such a witness to re-live the experience in a re-hearing. In other words, the demand by an accused for a re-hearing must be based on good faith and ought not to be made with the objective of traumatizing the witnesses or unnecessarily delaying the trial or ensuring that the trial does not take off. I associate myself with the sentiments of Mabeya, J inDirector of Public Prosecution vs. Kipyegon Josphat & 2 others [2019] eKLR that:

“…section 200 of the CPCis not a carte blanchelicense for criminal cases to always start de novoevery time a trial court changes. It is a desirable idealistic aspiration. However, like all aspirations, it has limitations. The limitation is what the Court of Appeal set out in the case of Abdi Adan Mohamed v. Republic (supra) The aforesaid limitation include; whether it is convenient to commence the trial de novo, how far the trial has reached, the availability of witnesses who have already testified, possible loss of memory by the witnesses, the time that has lapsed since the commencement of the trial and the prejudice likely to be suffered by either the prosecution or the accused. Despite the issue of the fatigue of the witnesses, the likelihood of the unavailability of witnesses being raised before the trial court, the Learned Magistrate neither considered nor referred to the same.”

38. In my view, where the accused, with the view of scuttling or delaying the trial, obstructs the same by making applications that are meant to have the trial Judge or Magistrate disabled from continuing with or completing the trial, the Court will not readily have acceded to an application to start the trialde novo.

39. In this case, if I understand the accused, his case is thatthere is no hindrance with regard to the availability of the prosecution witnesses and the turnaround time of the trial process due to the reduced number of the prosecution witnesses to be availed. According to him, since he has been undertaking proceedings on my own due to lack of legal representation, which is one such way of achieving fairness in a criminal trial as enshrined under Articles 24,25 &Article 50(2)(g)(h) of the Constitution in having the matter start de-novo, the Court would be ensuring that his right to a fair trial as per Article 50(2)(g)(h) is protected. In this regard, he cited the decision of the Court of Appeal in David Njoroge Macharia vs. Republic (2011) eKLRand argued that this court has jurisdiction to grant prayers sought pursuant to Article 23, 27, 49, 50 & 165 of the Constitution.

40. In this case PW1 was an employee of the deceased who discovered the deceased dead in the morning. She did not witness the occurrences leading to the deceased’s death save that according to her, it was the accused whom she saw visiting the deceased last. After PW1 finished testifying the accused recalled her for further cross-examination. According to PW2 he was a bouncer at club which the deceased and the accused used to visit. The accused also hired his services to act as his security while at the club. According to his evidence, the accused informed him about the scuffle between him and the deceased. He was the one arrested in possession of the deceased’s car. PW3, according to her had only known the accused briefly though they had been chatting for some time. She was with the accused when the accused was arrested while in the course of making travelling arrangements outside the country. PW4, was the deceased’s sister who confirmed that the deceased was the accused’s girlfriend. Her evidence was that though initially the relationship between the deceased and the accused was cordial, it later ran into problems. She was the one who led the police to PW2 upon being informed that PW2 was in possession of the deceased’s car.

41. In this case the accused contends that he is likely to be prejudiced since he conducted the earlier trial without the benefit of legal representation. However, the record indicates that on 12th March, 2021, his then advocate who was acting for him pro bono sought to cease acting for him due to some misunderstanding between them. The accused informed the court that he had no objection to his advocate being discharged and indicated that he would be able to represent himself. The accused seemed to have had a change of mind since on 10th May, 2020 he applied to availed the services of a pro bono advocate, an application that the court granted. However, the Deputy Registrar was reportedly unable to get any advocate willing to take up his case on a pro bono basis. Accordingly, the accused responded as follows:

“I have noted the sentiments of the Deputy Registrar. I am alright defending myself in them matter. I am ready to face my accusers today since I am suffering for a crime I did not commit…I am very much ready, the prosecution should avail all witnesses.”

42. In this case, it is clear that only 4 witnesses have testified. They cannot be termed as merely formal witnesses notwithstanding that none of them testified that they saw the accused inflict the fatal injuries on the deceased. However, there is evidence allegedly linking the deceased to the accused as the person who had something to do with her death.

43. In my view the objection to the trial commencing de novo is due to the emotional inconvenience that the witnesses who have testified are likely to be subjected to, and the availability of witnesses who had already testified. As regards the former, so far the only witness who is related to the deceased was PW4. Her evidence was however limited to her knowledge of the relationship between the accused and the deceased, the information she received from PW2 and what she found when she went to the deceased’s house. It is not contended that she cannot be availed to testify.

44. As for availability of the witnesses, both the prosecution and the victim’s counsel did not address the Court on the same. The only party that addressed the issue was the Law Society of Kenya which submitted thatit may not be easy to procure the attendance PW1 who is no longer in employment of the deceased’s family and that the Prosecution has expressed difficulty in tracing her. As noted above there was no such indication by the prosecution in these proceedings. It was also submitted that it is similarly difficult to trace PW2. Again the prosecution has not said anything about the availability or otherwise of this witness.

45. I have considered the material placed before me. In arriving at a decision that is just I must consider what prejudice, if any, is likely to be occasioned to the prosecution witnesses or the accused should a re-hearing be ordered or declined. Here, the Court must balance between the accused’s right to be represented by counsel, the prosecution’s interests as well as the victim’s right not to be subjected to inhuman treatment by being subjected to re-live the experiences of the death of the deceased. While the record indicates that the accused expressed his willingness to proceed with the hearing without the benefit of legal representation, the fact that he did make a formal application for the same and only waived the right after he was informed that no advocate was willing to take up his case locally is worth noting.

46. Article 50 (2) (g)(h) of the Constitution of Kenya 2010 on fair hearing, states that:

(2) Every accused person has the right to a fair trial, which includes the right--

(g) to choose, and be represented by, an advocate, and to be informed of this right promptly; (h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;

47. In addition, the Legal Aid Act 2016, section 43 on duties of the court when interacting with an unrepresented person states that:

“A Court before which an unrepresented accused person is presented shall:

a) Promptly inform the accused of his or her right to legal representation;

b) If substantial injustice is likely to result, promptly inform the accused of the right to an advocate assigned to him or her; and

c) Inform the service to provide legal aid to the accused person”

48. In Joseph Kiema Philip –vs- Republic [2019] eKLRthe court with regards to the said requirement stated that:

“The right to legal representation is founded upon well-known principles, doctrines and concepts which include access to justice, right to fair trial, the rule of law and equality before the law. This fundamental right is recognized in a myriad of states due to its importance in ensuring that the process is just, credible and transparent. Thus legal representation is a cardinal principle of fair trial. The criminal justice system in Kenya places the right to fair trial at a much higher pedestal, and in that respect and in the context of this matter; the accused is placed in somewhat advantageous position. Therefore, legal representation is a fundamental constitutional dictate envisaged under article 50 of the Constitution of Kenya 2010”

49. In Macharia vs. Republic HCCRA 12 of 2012 [2014] eKLR which was considered and cited with approval by the court in the case ofJoseph Ndungu Kagiri vs. Republic [2016] eKLR which it was stated as follows:

“Art 50 of the Constitution sets out a right to a fair hearing, which includes the right of an accused person to have an advocate if it is in the interests of ensuring justice. This varies with the repealed law by ensuring that any accused person, regardless of the gravity of their crime may receive a state appointed lawyer if the situation requires it. Such cases may be those involving complex issues of fact or law; where the accused is unable to effectively conduct his or her own defence owing to disabilities or language difficulties or simply where the public interest requires that some form of legal aid be given to the accused because of the nature of the offence...We are of the considered view that in addition to situations where “substantial injustice would otherwise result”, persons accused of capital offences where the penalty is loss of life have the right to legal representation at state expense.”

50. A miscarriage of justice was discussed in the case of Zahira Habibullah Sheikh & Another vs. State of Gujarat & Others AIR 2006 SC 1367 where the Supreme Court of India stated:-

“It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted…Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, the condemnation should be rendered only after the trial in which the hearing is a real one, not a sham or mere farce and pretense…The fair trial for a criminal offence consists not only in technical observance of the frame, and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice.”

51. The Supreme Court in Republicvs. Karisa Chengo and 2 others (2017)eKLR stated as follows:-

“[87] Article 50(2)(h)of the Constitution provides that “[e]very accused person has the right to a fair trial, which includes the right…to have an advocate assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly.” It does not define what “substantial injustice” means. However, in David Macharia Njoroge v. Republic, (supra), the Court of Appeal held that “substantial injustice” results to “persons accused of capital offences” with “loss of life” as the penalty if they have no counsel during their trials. We do not entirely concur with that holding, as it has the effect of limiting the right to legal representation in criminal trials only to cases where the accused person is charged with a capital offence. The operative words in Article 50 (2) (h) are “if substantial injustice would otherwise result…” While it is therefore undeniable that a person facing a death penalty and who cannot afford legal representation is likely to suffer substantial injustice during his trial; the protection embedded in Article 50 (2) (h) goes beyond capital offence trials. The Court of Appeal indeed appears to have embraced this reasoning in a recent decision in Thomas Alugha Ndegwa v. Republic; C.A No. 2 of 2004, when it allowed an application for legal representation by the appellant who had been convicted of defilement and sentenced to life imprisonment.”

52. In this case, the accused seemed to have decided not to pursue his said right upon being informed that none of the local advocates was willing to take up his matter after the misunderstanding between him and his erstwhile counsel appointed for him by the State. The law clearly places upon the State the obligation to provide an accused person in the circumstances of the accused herein with legal representation. While the accused is at liberty to decline legal representation and defend himself, where that option is being exercised following unavailability of an advocate to defend him, it is my view that such option cannot be said to have been voluntarily exercised particularly where there was in place an order that he be provided with legal representation.

53. The duty of the State to provide legal representation to an accused person is a State constitutional obligation that cannot be delegated to any other entity or person. Where advocates decline, for whatever reason to take legal representation of an accused who is entitled to legal representation at the State’s expense, it behoves the State to ensure that it avails legal representation to the accused at its own costs. This is so because our criminal justice system dictates that an accused person is presumed innocent until proven guilty no matter what others may think of him or her. While there may well be some genuine discomfort amongst some people with this presumption of innocence, it is a time tested principle in all jurisdictions which apply democratic principles and unless we opt to go the dictatorship route, we have no option but to endure it.

54. The Constitution of Kenya prescribes the rule of law as a binding national value, and as was appreciated in Dr. Christopher Ndarathi Murungaru vs. AG and another, Civil Application No. Nai. 43 of 2006 (24/2006), at page 12:

“... the Constitution of the Republic is a reflection of the supreme public interest and its provisions must be upheld by the courts, sometimes even to the annoyance of the public…We have said before and we will repeat it. The Kenyan nation has chosen the path of democracy: our Constitution itself talks of what is justifiable in a democratic society. Democracy is often an inefficient and at times messy system. A dictatorship, on the other hand, might be quite efficient and less messy. In dictatorship, we could simply round up all these persons we suspect to be involved in…crimes and simply lock them up without much ado. That is not the path Kenya has taken. It has opted for the rule of law and the rule of law implies due process. The courts must stick to that path even if the public may in any particular case want a contrary thing…”

55. I associate myself with Bagmall, J in Crowcher vs. Crowcher [1972] 1 WLR 425, 430 that:

“the only justice that can be attained by mortals, who are fallible and are not omniscient is justice according to the law: the justice that flows from the application of sure and settled principles to proved or admitted facts.”

56. Having considered the material placed before me and balancing the interests of the accused and the prosecution and while I appreciate that the accused may not have had anything to do with the transfer of the trial Judge, I am alive to the fact that the inability by Muigai, J to proceed with the matter was occasioned by his application. Therefore, while I am not amenable to starting the hearing de novo, I direct that the 4 witnesses who had testified be recalled for further cross examination and re-examination if necessary. I direct that the accused be provided with legal representation at the State’s expense. If the Deputy Registrar is unable to get any advocate on the pro bono panel willing to take up the representation of the accused, the National Legal Aid Service is hereby directed to facilitate the same. In this regard the Deputy Registrar, if unable to get such an advocate to transmit this ruling to the National Legal Aid Service for the purposes of facilitating legal representation for the accused.

57. It is so ordered.

RULING READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 24TH DAY OF MARCH, 2022.

G V ODUNGA

JUDGE

IN THE PRESENCE OF:

THE ACCUSED VIRTUALLY

MR MWONGELA FOR MS NJERU FOR THE STATE

MS HERINE KABITA FOR MS KAMENDE, MS VALENTINE KHAMINWA AND MS SALOME ODERA FOR THE LAW SOCIETY OF KENYA

MR MATHENGE WITH MR MUGISHA FOR THE FAMILY AND HOLDING BRIEF FOR MR MOSONGO FOR FIDA (K)

CA Susan