[2016] KEHC 5391 (KLR)
The court held that the prosecution's application to recall P.W.7 should be allowed. The judge reasoned that the witness had not been stepped down, and the recall would be brief and limited to identifying items not previously identified. The court emphasized that justice should not be defeated by undue reliance on...
Source-derived case information.
- Citation
- [2016] KEHC 5391 (KLR)
- Parties
- Applicant: Republic; Respondent: George Otieno Okoth
- Court
- High Court
- Court Station
- High Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 5 of 2015
- Procedural Posture
- Criminal Case / Ruling on Prosecution Application to Recall Witness Before Close of Prosecution Case
- Outcome
- application allowed
- Judges
- CB Nagillah
- Legal Topics
- Recall of Witness, Admissibility of Evidence, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
George Otieno Okoth
Respondent
Procedural Posture
Criminal Case / Ruling on Prosecution Application to Recall Witness Before Close of Prosecution Case
Legal Issues
- 1 Whether the prosecution should be allowed to recall a witness (P.W.7) before closing its case to identify items not previously identified.
- 2 Whether recalling the witness would prejudice the accused or amount to an abuse of process.
Ratio Decidendi
The court held that the prosecution's application to recall P.W.7 should be allowed. The judge reasoned that the witness had not been stepped down, and the recall would be brief and limited to identifying items not previously identified. The court emphasized that justice should not be defeated by undue reliance on procedural technicalities, as enshrined in Article 159(2)(d) of the Constitution. The court found no substantial prejudice to the accused in allowing the recall at this stage, especially since the defence had already exposed the omission during cross-examination. The application was therefore granted in the interests of justice.
Court Disposition
application allowed
Orders
- The prosecution is allowed to recall P.W.7 to identify the items not previously identified.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYAMIRA
HC.CR CASE NO. 5 OF 2015
REPUBLIC……………………………………………………..STATE
VERSUS
GEORGE OTIENO OKOTH………………………………ACCUSED
R U L I N G
On 22nd February, 2016, the prosecution made an application to recall P.W.7, Chief Inspector Bamfort Tsurwa, before the closing of the prosecution case, to identify the accused’s clothing and the human hair he alluded to in his evidence in chief.
Mr. Ondari for the defence opposed the prosecution’s application. He submitted that the P.W.7 was called to identify what the witness recovered on the body of the accused.
For some reason known to the prosecution, the witness did not identify all the items he referred to in his evidence.
On cross-examination, the defence, noticing the lacuna, exposed the same. If the prosecution were to be allowed to recall to seal these lacunae, the case would continue ad infinitum. What rights does the court accord the accused person?
The prosecution however sees nothing prejudicial to the accused.
In any event the witness had not been stepped down. The constitution further prohibits unnecessary reliance on technicalities. Article 159 (i) (d)alludes to:
‘Justice shall be administered without undue regard to procedural technicalities,”
Having regard to the submissions by the defence and also listening to the submissions by the prosecution, this court will allow the prosecution to recall P.W.7 to come and identify the other items, he did not identify. In any event his duty will, in my view, be brief one.
Therefore the prosecution’s application be and is hereby allowed.
It is so ordered.
Dated at Nyamira this 14th day of March 2016.
C. B. NAGILLAH
JUDGE
In the Presence of:-
Nyamwange hold brief for the applicant
Malesi for the respondent
Mercy -Court Clerk