[2024] KEHC 10350 (KLR)
The court held that section 146(4) of the Evidence Act grants discretion to permit the recall of a witness for further examination, and that the application was made promptly after the witness's testimony. The court found that objections regarding admissibility, quality, or originality of the evidence are premature...
Source-derived case information.
- Citation
- [2024] KEHC 10350 (KLR)
- Parties
- Applicant: Republic; Defendant: Eric Mungera Isabwa alias Chairman; Defendant: Raphael Kimani Gachii alias Kim Butcher; Defendant: Mustafa Kimani Anyoni alias Musto; Defendant: Stephen Astiva Lipopo alias Chokore; Defendant: Jane Wanjiru Kamau alias Shiro; Defendant: Margaret Njeri Wachiuri; Defendant: Simon Wambugu Gichamba
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 29 of 2015
- Procedural Posture
- Criminal Case / Ruling on Oral Application to Recall Witness for Further Examination
- Outcome
- Application to recall witness allowed.
- Judges
- K Kimondo
- Legal Topics
- Recall of Witness, Admissibility of Evidence, Disclosure of Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Eric Mungera Isabwa alias Chairman
Defendant
Raphael Kimani Gachii alias Kim Butcher
Defendant
Mustafa Kimani Anyoni alias Musto
Defendant
Stephen Astiva Lipopo alias Chokore
Defendant
Jane Wanjiru Kamau alias Shiro
Defendant
Margaret Njeri Wachiuri
Defendant
Simon Wambugu Gichamba
Defendant
Procedural Posture
Criminal Case / Ruling on Oral Application to Recall Witness for Further Examination
Legal Issues
- 1 Whether the prosecution should be permitted to recall a witness for further examination in chief to produce original call data reports.
- 2 Whether the accused persons' right to prior disclosure of evidence under Article 50(2)(j) of the Constitution has been respected.
- 3 Whether objections regarding admissibility and originality of evidence should be determined at the stage of recalling the witness.
Ratio Decidendi
The court held that section 146(4) of the Evidence Act grants discretion to permit the recall of a witness for further examination, and that the application was made promptly after the witness's testimony. The court found that objections regarding admissibility, quality, or originality of the evidence are premature at the stage of recalling the witness and can be addressed if and when the evidence is formally tendered. The court also recognized the accused persons' right to prior disclosure of evidence but found that this does not preclude the recall of the witness. Accordingly, the application to recall Quinto Odeke (PW34) for further examination in chief, cross-examination, and...
Court Disposition
Application to recall witness allowed.
Orders
- Quinto Odeke (PW34) may be recalled to the stand for further examination in chief, cross-examination, and re-examination.
Full Case Text
Judgment text and source record
36 paragraphs
Republic v Isabwa & 6 others (Criminal Case 29 of 2015) [2024] KEHC 10350 (KLR) (22 August 2024) (Ruling)
Neutral citation: [2024] KEHC 10350 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Criminal Case 29 of 2015
K Kimondo, J
August 22, 2024
Between
Republic
Prosecutor
and
Eric Mungera Isabwa alias Chairman
1st Accused
Raphael Kimani Gachii alias Kim Butcher
2nd Accused
Mustafa Kimani Anyoni alias Musto
3rd Accused
Stephen Astiva Lipopo alias Chokore
4th Accused
Jane Wanjiru Kamau alias Shiro
5th Accused
Margaret Njeri Wachiuri
6th Accused
Simon Wambugu Gichamba
7th Accused
Ruling
1. On 15th July 2024, and at the close of the re-examination of Quinto Odeke (PW34), the learned Prosecution Counsel, Ms. Maina, made an oral application to recall the witness. The prayer was predicated upon section 146 (4) of Evidence Act.
2. The recall was for purposes of producing original call data reports relating to a number of cell phones. The learned prosecutor argued that the reports were earlier produced in a separate robbery trial in Chief Magistrates Criminal Case 479 of 2015.
3. The application is contested by the 3rd and 4th accused persons only. According to learned counsel for the 3rd accused, Mr. Ongaro,there are some discrepancies in the reports that have precipitated the present application. He argued further that no basis has been laid for late production of the evidence. He added that the witness confirmed that the reports are in HTML and Excel formats. Accordingly, it makes no sense to claim that there are “originals” in the related file before the Chief Magistrates Court.
4. The objection by learned counsel for the 4th accused, Mr. Wokabi, on the other hand, is on the need for prior disclosure of that evidence.I heard him to say that since he is not representing the accused in the lower court, the DPP should ensure service of the reports before the next hearing date.
5. I will commence with the objections by the 4th accused. The mere fact that all the accused are charged before the two courts does not mean they have common counsel. Article 50 (2) (j) of the Constitution decrees that the accused persons be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence when their trial commences.
6. I will now turn to the objections by the 3rd accused. They point strongly towards admissibility, quality or veracity of the proposed evidence or reports intended to be produced by the witness. The objections can well be taken if and when the witness applies formally to produce the reports.
7. Section 146 of the Evidence Act deals with the order and direction of examinations. Sub-section 4 provides as follows-The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and re-examination respectively.
8. The application for recall was made immediately after the testimony by the witness. The “original” reports are said to be in a related criminal file before the Chief Magistrate. I cannot comment about whether the reports are original or admissible at this stage. But in view of the clear language of section 146 (4) above, I am inclined to allow the application.
9. The upshot is that Quinto Odeke (PW34) may be recalled to the stand for further examination in chief, cross examination and re-examination.It is so ordered.
DATED, SIGNED AND DELIVERED THIS 22ND DAY OF AUGUST 2024. KANYI KIMONDOJUDGERuling read virtually on Microsoft Teams in the presence of: -The accused persons.Ms. Dela for the Republic instructed by the office of the Director of Public prosecutions.Mr. Wokabi holding brief for Mr. Wachira for the 1st accused.Mr. Wokabi holding brief for Mr. Olando for the 2nd accused.Mr. Wokabi holding brief for Mr. Ongaro for the 3rd accused.Mr. Wokabi for the 4th & 6th accused persons.Mr. Wokabi holding brief for Ms. Nyamongo for the 5th and 7th accused persons.Mr. E. Ombuna, Court Assistant.