[2016] KEHC 5522 (KLR)
The court held that Section 200(1) and (3) of the Criminal Procedure Code does not confer an absolute right on the accused to demand a trial de novo upon the transfer of a judge. The provision is discretionary, allowing the court to determine the appropriate course of action based on the circumstances. In this case,...
Source-derived case information.
- Citation
- [2016] KEHC 5522 (KLR)
- Parties
- Respondent: Republic; Defendant: Gregory Mutuma Mwenda
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 4 of 2008
- Procedural Posture
- Criminal Case / Ruling on Application to Start De Novo Under Section 200 of the Criminal Procedure Code
- Outcome
- application to start de novo dismissed; case to proceed from where it stopped with recall of available witnesses for cross-examination if necessary
- Judges
- RPV Wendoh
- Legal Topics
- Trial De Novo, Judicial Discretion, Recall of Witnesses, Prejudice to Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Gregory Mutuma Mwenda
Defendant
Procedural Posture
Criminal Case / Ruling on Application to Start De Novo Under Section 200 of the Criminal Procedure Code
Legal Issues
- 1 Whether the trial should commence de novo following the transfer of the previous judge under Section 200 of the Criminal Procedure Code.
- 2 Whether the accused will suffer prejudice if the case proceeds from where it stopped rather than starting afresh.
- 3 Whether the court has discretion to determine the mode of proceeding after a change of presiding judge.
Ratio Decidendi
The court held that Section 200(1) and (3) of the Criminal Procedure Code does not confer an absolute right on the accused to demand a trial de novo upon the transfer of a judge. The provision is discretionary, allowing the court to determine the appropriate course of action based on the circumstances. In this case, the accused was represented throughout, and no specific prejudice was demonstrated that would result from proceeding with the trial from where it stopped. Conversely, the prosecution would be greatly prejudiced if the case were to start afresh, as most witnesses are deceased or unavailable. The court found that the interests of justice and fairness to both parties would be...
Court Disposition
application to start de novo dismissed; case to proceed from where it stopped with recall of available witnesses for cross-examination if necessary
Orders
- The application to start the case de novo is dismissed.
- The two available witnesses (PW1 and PW5) may be recalled for cross-examination if necessary.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
CRIMINAL CASE NO. 4 0F 2008
REPUBLIC……………………………………………RESPONDENT
VERSUS
GREGORY MUTUMA MWENDA …………………………ACCUSED
RULING
This is a part heard case that was heard by J. Emukule who had taken a total of 10 witnesses when he proceeded on transfer in December, 2009. After that, several judges mentioned the case but it never took off. Only one witness was remaining to be heard. On 21/7/2014, when the matter came before J. Makau, he directed that the matter proceeds from where the Judge had stopped and rejected the application to start de novo. Justice Makau never managed to take the evidence of the remaining witness. J. Makau was transferred in 2015 and the matter was placed before me for directions.
Mr. Kaimenyi, Counsel for the accused again made an application pursuant to Section 200 of CPC that the matter do start afresh. The application was opposed by the State Counsel for reasons that being an old matter of 2008, most of the witnesses cannot be found; that this matter was almost concluded and it would be prejudicial to the State if the case were to start afresh; that the defence has not demonstrated that any prejudice will be occasioned to them.
Two affidavits have been sworn by the Investigation Officer, CPL Muyeyi who deponed that Joel Muriuki (PW3), Moses Kiogora (PW4)and George Kinoti (PW5) are all deceased; that PW2 Isaiah Kiogora relocated to South Sudan while PW7 Damaris Karwirwa is in Tanzania; PW9 Peter Mukeria Selesio is said to be in Moyale and that only PW1 Stella Mwari and Nancy Wangari (PW6) are available.
Samuel Kirunja Ruchu, Chief of Kiirua Location, where the murder occurred swore another affidavit in which he exhibited the death certificate in respect of PW1 Joel Muriuki Rutere (P.1) and burial permit for PW5 George Kinoti (P.2). He confirmed the contents of the Investigation Officer’s affidavit.
Mr. Kaimenyi, Counsel for accused urged that it is accused’s right to decide on how the matter should proceed.
Section 200 (1) and (3) states:
“S. 200 (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 that jurisdiction, the succeeding magistrate may –
...........
(b) ...........
2. ..........
(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.”
Section 200 (1)and(3) are not couched in mandatory terms. The word used is ‘may’. It means that the court is left with the discretion to decide on how a matter should proceed even where Counsel applies to have the matter start de novo or recall witnesses.
By this case’s very age, it is not easy to trace witnesses. There is evidence that some witnesses are deceased. The accused’s submission that it is accused,s right to decide how the case proceeds is not correct. The discretion lies with the court taking into account all the circumstances of each case.
In this case, the accused was represented. He has not told the court exactly how he will be prejudiced if the case does not start de novo. Besides, this same application had been made before J. Makau, who considered and dismissed it and directed that the case proceeds from where Judge Emukule stopped. I do not know why the defence raised the issue that the court has already dealt with. It is a misapprehension to believe that it is accused’s decision that carries the day under Section 200 (3) of CPC.
Having considered the application, I find that accused was represented by Counsel and he is still represented. If the court were to start the case de novo, the prosecution would be greatly prejudiced. This court has the duty to balance the rights of all the parties to this case. In exercise of this court’s jurisdiction and in doing my best to balance the rights of all parties herein, this court will allow the two available witnesses PW1 and 5 to be recalled for cross examination if necessary. Otherwise, the case will proceed from where J. Emukule stopped as directed by J. Makau.
It is so ordered.
DATED, SIGNED AND DELIVERED THIS 19TH DAY OF APRIL, 2016.
R.P.V. WENDOH
JUDGE
19/4/2016
PRESENT
Mr. Mulochi for State
Mr. Nyanyire Holding for Mr. Kaimenyi for Accused
Peninah/Ibrahim, Court Assistants
Present, Accused