[2003] KEHC 277 (KLR)
The court held that, according to Sections 212, 310, and 161 of the Criminal Procedure Code, the prosecution does not have a right of reply where the defence has called no witnesses and only the accused has given evidence, unless the Solicitor General or Attorney General appears in person. The judge expressed...
Source-derived case information.
- Citation
- [2003] KEHC 277 (KLR)
- Parties
- Respondent: Republic; Defendant: Kenga Kombe Nzai & Another
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 3 of 1998
- Procedural Posture
- Criminal Case / Ruling After Close of Defence Submissions, Prior to Summing Up to Assessors
- Outcome
- Prosecution not permitted to reply; case concluded for summing up to assessors.
- Legal Topics
- Right of Reply, Criminal Procedure Code Interpretation, Confession Evidence, Retrospective Application of Statute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Kenga Kombe Nzai & Another
Defendant
Procedural Posture
Criminal Case / Ruling After Close of Defence Submissions, Prior to Summing Up to Assessors
Legal Issues
- 1 Whether the prosecution has a right of reply after the defence closes its case without calling any defence witnesses.
- 2 Whether the court can hear submissions from the prosecution on legal issues raised by the defence in such circumstances.
- 3 Whether the provisions of the Criminal Procedure Code regarding right of reply are arbitrary or exclusionary.
Ratio Decidendi
The court held that, according to Sections 212, 310, and 161 of the Criminal Procedure Code, the prosecution does not have a right of reply where the defence has called no witnesses and only the accused has given evidence, unless the Solicitor General or Attorney General appears in person. The judge expressed concern that this rule is arbitrary and deprives the court of the benefit of the prosecution's legal reasoning on important issues raised by the defence, but nonetheless found himself bound by the law as it stands. Consequently, the court declined to hear the prosecution's reply and concluded the case, proceeding to direct the assessors for the next steps.
Court Disposition
Prosecution not permitted to reply; case concluded for summing up to assessors.
Orders
- Direction to assessors on Friday 15th August 2003 at 10:00am.
- Assessors to be paid today's sitting allowances.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL CASE NO. 3 OF 1998
REPUBLIC ……………………………………………….………… RESPONDENT
V E R S U S
KENGA KOMBE NZAI & ANOTHER ………………....….……………. ACCUSED
RULING
The murder trial here has come to an end and I am now hearing Submissions. Mr. Oyoo for defence has on his part submitted but objects to Mr. Gumo replying because the Defence called no defence witnesses.
Mr. Oyoo in his submissions had touched on legal matters including confessions, application of Act No. 5 of 2003 regarding confessions and whether or not application can be retrospective. Tuwamoi V Uganda [1967] EA87 Principle and alibi.
This court would like to hear the prosecution on these, but I have read Sections 212, 310 and 161 of the Criminal Procedure Code and cumulatively I understand them to say that at the end when accused person ends his case and submits the prosecution shall have a right to reply except where there is no witness called for the defence and where there is no such witness and only accused himself gave evidence, the prosecution has no right of Reply UNLESS the Solicitor General or Attorney General has himself appeared in person.
This is a very drastic rule depriving the court of having the benefit of State Counsel’s legal reasoning on pertinent legal issues the defence advocate has raised and which in themselves may be decisive of the case. This limitation or rather exclusion is arbitrary and exclusionary and seems to me to have no basis. If it is meant to save time then justice is disadvantaged. Section 161 of Criminal Procedure Code should be amended. Otherwise with the law as it is I cannot hear Principal State Counsel in reply. The case therefore is concluded. I shall advise assessors on a date to be given for direction.
A. I. HAYANGA
JUDGE
12. 8.2003
ORDER
Direction to Assessors on Friday 15th August 2003 at 10. 00am.
A. I. HAYANGA
JUDGE
Assessors be paid today’s sitting allowances.
A. I. HAYANGA
JUDGE
Accused persons to be produced on 15th August 2003.
A. I. HAYANGA
JUDGE