[2020] KEHC 1980 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITUI

HIGH COURT CRIMINAL CASE NO. 17 OF 2019

REPUBLIC...........................................................APPELLANT/APPLICANT

VERSUS

(1) JOSHUA MUEKE MUTUNGA alias MOSES MUTUNGA

(2) JOHN KITUMBI MUNYOKI

(3) MUTUA MUASYA

(4) KOKI KAIMANZI..........................................................RESPONDENTS

R U L I N G

1. This matter is a partheard matter where the 4 accused persons are charged with the offence of murder contrary toSection 203 asread with204of Penal Code. Joshua Mweke Mutunga alias Moses Mutunga, John Kitumbi Munyoki, Mutua MuasyaandKoki Kimanziare all accused of jointly murdering oneBenjamin Muema Kinyalion 16th April 2019 at Gynery within Kitui Township.

2. All the accused persons denied committing the offence and the case as observed is a partheard where 2 witnesses have been heard and owing to the transfer of the presiding Hon.Justice Mutende, this court was called upon by the Deputy Public Prosecutor to apply the Provisions of Section 200 Criminal Procedure Code and proceed with the trial from where the other court left. The defense on the other hand was of a different view as they preferred the matter to start de novo. This Court invited representations from both sides and each side took strong positions regarding their respective preference.

3. On the part of the defence, the first accused through his counsel asked this court to start de novobecause in his view, the two witnesses who testified contradicted each other. In his view, it is important for this court to see the said witnesses and observe their demeanor.

4. The first accused further opines that though he is out on bond, he has complied with the strict terms of the bond including staying away from the prosecution witnesses. He termed the fears expressed by the prosecution regarding witness intimidation as baseless. He also accused the Investigation Officer of having an affair with his wife and claimed that the two witnesses who testified may have been intimidated by the Investigating Officer.

5. The 2nd accused also asked this court to start the trial de novo arguing that the prosecutions fear of witness interference can be addressed through Witness Protection Agency. He averred that the issue of witness interference did not arise at all during the hearing of the two witnesses who have so far testified.

6. The state through the Deputy Public Prosecutor on the other hand opposed the defence application and told this court that it would be in the interest of justice for this court to proceed with the trial from where the other court left. Mr.Okemwa for the State told this court that the two witnesses who testified did so even before the court could consider bail application due to fear of compromise or interference.

7. The State further contended that the affidavit sworn on 19th June 2020 by the Investigating Officer shows the circumstances surrounding the fear of witness interference by the defence. It also claims that the affidavit of Esther Wanjiru Njau filed on 22nd June 2020 also shows why the prosecution have fears that the two witnesses who testified have been compromised and are unlikely to stick to what they had earlier testified in court. The State in particular contended that attempts had been made to compromise PW2 and that is why they asked this court to take their testimonies before releasing the accused persons on bond.

8. The State further submitted that if the case was to restart afresh the two witnesses would likely retract their evidence and same wand prejudice to the prosecutions case and the rights to the victims. He urged this court to balance both rights of the accused and the rights of the victims as well pointing out that the defence had a right to recall any witness for further cross examination if they have basis.

9. The victims counsel also weighed in and concurred with the Deputy Public Prosecution adding that the size of the file in itself shows the intensity of the dispute of the case given that only two witnesses have testified. The victims further submitted through counsel that the trial judge had ruled that the two witnesses were to testify before the accused could be released on bond. They point out that the trial judge could have heard more witnesses but time ran out and that the mother to the deceased who was to testify is now deceased and that before her demise, she had expressed fear of intimidation and interference.

10. They urged this court to consider the proceedings typed and find that if the only reason to recall the witnesses is observe their demeanor, then the judge who heard them must have captured their demeanor if the same was important.

11. This court has considered the representation made by the prosecution and the deceased’s family I have also considered the sentiments made by the defence. This is a partly heard matter where 2 witnesses (PW1 and PW2) testified before Hon.Justice Mutende who has since been transferred. This court has succeeded the transferred judge and in such scenario the law is explicit on the procedure or steps to be taken in a trial. Section 200of Criminal Procedure Code provides as follows:-

“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………………………..

(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 of that right……..” (Emphasis added).

The Provisions of Section 201 (2) of the Criminal Procedure Code stipulates that the above provision applies to trials in this court in the same way.

12. The accused persons in this matter are duly represented and have exercised their right to have the two witnesses recalled for purposes of enabling this court observe their demeanors because according to them the two witnesses gave contracting evidence.

13. This court finds that going by the above cited provisions of the law, while an accused has a right to have a witness recalled, where a court that took the evidence is transferred midstream before the conclusion of the trial, that right in my considered view is not absolute because of the following reasons;

(i) The operative word used in the above cited Section is “may”. It states that an accused person may demand that a witness be recalled to be reheard or to be cross-examined. In my view the use of the word ‘may’ indicates that a succeeding court has a discretion to decide whether or not to recall a particular witness.

(ii) The provisions does not specifically provide that a trial should start afresh when a new court or magistrate takes over a part heard matter after the transfer of a trial magistrate or judge.

14. It is quite apparent that in applying the provisions of Section 200 of the Criminal Procedure Code a succeeding court must decide each case on its merit depending on the circumstances. The overriding factor to be considered in my take is the provisions of Articles 50 of the Constitution which guarantees fair trial to anyone facing trial in any court of law in Kenya. One of the cardinals of a law trial in constitution is to have an expeditious trial and therefore where a number of witnesses have been heard, a trial court cannot be expected to simply decide that a trial will begin afresh because an accused person has elected to exercise a right to recall witnesses who have already testified. My take is that doing so without concrete basis would have undesired effect of impeding the right to a fair trial and may prejudice the rights of the victims to access justice.

15. I have keenly evaluated the basis for the defence to recall the 2 witnesses who have testified and its true that the one and only reason is the allegations made that the witnesses gave evidence which were not consistent. While that argument maybe taken up by the defence in this trial as part of their defence, I am of the view that the counter argument made by the prosecution and the victims family outweighs the basis for a recall of the two witnesses. I say this for the following reasons.

(i) The prosecutions have made a strong case of likehood of witness intimidation and/or interference because the proceedings before me indicates that they had made the same claims even before the trial commenced and at the stage where the court was to decide whether to release the accused persons on bond pending trial. I have perused through the affidavits of P.C. Wycliffe Onsando sworn on 5th July 2019 and 19th June 2020 and the documents attached to the affidavits and find that the claims of likehood of witness interference cannot be ignored.

(ii) This court has further gone through the ruling dated 19th November, 2019 delivered by Hon. Justice L.N.Mutende in relation to an application for bond by the 1st accused person. The Hon. Judge expressly deferred the question of bond until two vulnerable witnesses had testified. The two witnesses whom the prosecution felt were vulnerable have testified and after their testimony, the 1st accused person was released on bond vide a ruling by justice Odunga dated 9th July 2020. In my considered view, asking the two witnesses to come back to re-testify when the 1st accused persons have been released on bond defeats the logic behind the decision to defer bond until the 2 witnesses had testified.

(iii) Thirdly and more importantly the defence has not stated what prejudice they would suffer if this court proceeds from where the departing judge left. As I have observed above if the defence have any basis to recall any of the witnesses or both witnesses for further cross examination they are at liberty to make the application and lay sufficient basis for a recall. This court would then determine the application on the merits. I am not persuaded that because the witnesses gave inconsistent or contradictory evidence, the case should start afresh. If anything if that is the case, the defence would be more than glad to seize the inconsistencies or contradictions and used them to their advantage in their respective defences. There would be no prejudice suffered at all in such a case.

16. On the other hand the prosecution and the victims would suffer great prejudice if the witnesses have been intimidated and/or influenced to retract or change their evidence. That in my view would greatly affect negatively the dispensation of justice and that which is undesirable. In the end this court finds and directs that it is fair and in the interest of justice to proceed with the trial from the point the transferred judge had reached. I will also direct that, due to the intense and heated arguments exhibited by both sides in this matter, this court shall give priority to the trial of this case and to that end, I direct that clear day(s) for trial be fixed and the prosecution should ensure to avail the witnesses.

Dated, SignedandDeliveredatKituithis3rd day of November, 2020.

R. K. LIMO

JUDGE