[2017] KEHC 24 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

CRIMINAL CASE NO.5 OF 2014

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

VERSUS

EVANS MASHETI SHIMWATI........ACCUSED

RULING

1. The Court of Appeal ordered a retrial in this case. The prosecution has through the State Counsel Mr Juma now moved the court for the evidence of the witnesses who testified in the initial trial to be admitted under the provisions of section 34 of the Evidence Act. The grounds in support of the application are that one of the witnesses Jeniffer Agara has since passed away and that the other witnesses cannot be traced. The State further stated that the Court of Appeal ordered a retrial because in the initial trial no guidance was given to the assessors for summing up and that the assessors did not provide an opinion before judgment was delivered. The State counsel submitted that the assistance of assessors is no longer provided law and as such the reason why a retrial was ordered does not exist.

2. The application was opposed by the defence. Mr Okello for the accused submitted that the accused took plea in December, 2015. Therefore that the prosecution has had enough time to trace the witnesses That the initial proceedings were declared a nullity and therefore that the evidence of the said witnesses is not admissible. That the accused is entitled to a fair trial which includes the right to cross-examine witnesses. That to exclude the said witnesses will deny the accused an opportunity to cross-examine the witnesses.

3. Section 34 of the Evidence Act states as follows:-

(1) Evidence given by a witness in a judicial proceeding isadmissible in a subsequent judicial proceeding, or at a later stage in the same proceeding, for the purpose of proving the facts which it states, in the following circumstances –

(a) where the witness is dead, or cannot be found, or isincapable of giving evidence, or is kept out of the way by the adverse party, or where his presence cannot be obtained without an amount of delay or expense which in the circumstances of the case the court considers unreasonable;

And where, in the case of a subsequent proceeding –

(b) the proceeding is between the same parties or theirrepresentatives in interest; and

(c) the adverse party in the first proceeding had the rightand opportunity to cross-examine; and

(d) the questions in issue were substantially the same inmthe first as in the second proceeding.

(2) For the purposes of this section –

(a) the expression “judicial proceeding” shall be deemedto include any proceeding in which evidence is takenby a person authorized by law to take that evidence onoath; and

(b) a criminal trial or inquiry shall be deemed to be aproceeding between the prosecutor and the accused.

In my view a retrial falls within the provisions of section 34(1)(b)-(d) of the Evidence Act .

3. In Harrison Kariuki Mwangi & 3 others vs Republic(2013) eKLR, the High Court while commenting on the application of section 34 (1)(a) of the Evidence Act stated that:-

“The court must be satisfied that where any of the above grounds are cited, the same are not unreasonable and are not meant to prejudice the defence …”

4. In Abdi Adan Mohamed vs RepubliceKLR the Court of Appeal sitting at Mombasa while considering the provisions of section 200(3) of the Criminal Procedure Code and section 34(1) of the Evidence Act stated that:-

“… It, of course, will be impractical where it is demonstrated that the witness sought to be summoned is deceased, to insist on calling such a witness. Similarly if the 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.”

The court in the same case stated that the burden of proving that the witness is unavailable or dead lies on the prosecution.

5. It is clear from the provisions of section 34(1) that where it is shown to the satisfaction of the court that a witness has died, then the court can admit the evidence recorded in a previous trial. In this case the prosecution is saying that one of the witnesses has died. In the circumstances the prosecution is not in a position to call the dead witness. The application to admit the evidence of the witness is not unreasonable. There is sufficient ground to admit the evidence of the said witness under the provisions of section 34 of the Evidence Act. However the prosecution did not produce a death certificate to prove that the witness is dead. The court cannot grant the application until the prosecution produces the death certificate. A decision on the issue is postponed until when the prosecution complies with the same.

6. In respect to the other witnesses who were said that they cannot be traced the prosecution only made general comments that they cannot be traced. They did not state the efforts that have been made to trace the witnesses. The witnesses were said to be in Mombasa. The prosecution has not satisfied the court that the witnesses cannot be traced. The application in respect to those witnesses is thereby declined.

Delivered, dated and signed at Kakamega this 14th day of November, 2017.

J. NJAGI

JUDGE

In the presence of:

M/s Kibet for prosecutor/State

Okello for accused

George court assistant

Accused ……………………………………………………… present